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How to take an Infringement Notice to Court


The basic steps in taking a fine to court are:

  1. Lodge a court election or a notice of objection within the time limit.
  2. Wait roughly 3 months for a charge and summons to be sent to you in the mail or handed to you.
  3. Make an appointment for legal advice after you have received the charge and summons.


To dispute an infringement offence in court you need to lodge a court election (for demerit point offences) or a notice of objection (for licence-loss offences). This can be done online at the Fines Victoria website. Or you can send back the objection form that came with the fine. Usually it is printed on the reverse of the fine, or for camera fines it is attached on a separate page. For parking fines you need to follow the instructions on the fine or the reminder letter if you want to contest it in court. Usually you would not make any application for internal review if you intend to challenge the fine in court.

It is by objecting to the fine that you require the prosecution to prove that you are guilty of an offence. Many people ask me whether or not they should object to an infringement notice - that question is answered here. Generally you have to object to the fine if you want to avoid or delay license loss. You won't object if you prefer to lose your drivers licence rather than spend money trying to save your licence. It is only after you receive the court papers and the brief of evidence that I can offer an opinion on your chances of winning.

Once you lodge an objection, the infringement notice is cancelled and of no effect, so it can be ignored. You will then be served with a charge and summons for a court case: see the page about defending cases in court

There are two different types of infringements which have different rules for lodging an objection:


A. Drink driving, Drug Driving and excessive speed infringements: the deadline for objecting is 28 days after the date of the Traffic Infringement Notice (TIN).

If you have received an infringement notice for drink driving with a reading under 0.07% you must not object to the fine without first getting legal advice. Else you risk making things worse for yourself - the 3 month penalty may increase to 6 months at court.

For drink driving, drug driving and speeding infringements that impose licence loss, if you do not object to the infringement notice within 28 days your licence will be cancelled or suspended on the 29th day after the issue date of the notice. If the 28th day falls on a non-business day, the time for objecting is extended to the next business day (see the Interpretation of Legislation Act). Do not write a letter to the police to debate the circumstances of the case or to ask for a warning or to seek internal review - it will never help. Writing letters will not extend time for objecting to the infringement notice, although it can extend time for paying the fine.  Late objections are usually not possible, so if you miss the 28 day deadline for objecting or nominating there is nothing anyone can do unless you qualify for an extension of time.

It is possible to lodge your objection to the fine online at the Fines Victoria website. Or you can send in the objection form which is on the back of the ticket:  print your name, sign your name and cross out the words "do not intend".  It does not matter whether you cross out "do not intend" or "do intend" as the result will be the same. You then post by ordinary mail the signed form to Fines Victoria at the address shown on the fine. It is best to have some evidence that you posted the objection within time so make a dairy note and keep copies of the objection notice.  It is not essential to use their form. You can simply write a letter provided it complies with s.89A Road Safety Act.


B. For fines other than Drink Driving, Drug Driving and Excessive Speeding fines: the deadline for objecting is about 8 to 10 weeks after the date of the infringement notice.

For fines that impose demerit points you can wait until you receive a reminder letter before electing to go to court.  You should lodge the court election 3 weeks after you receive the reminder letter. Do not worry about the increased costs because your election cancels the fine and the costs.  You can make the election at Fines Victoria or by sending back the form on the back of the reminder letter. The deadline for lodging your election to take the case to court is immediately prior to the making of an enforcement order, which is often 8 to 16 weeks after the date of the initial infringement notice.

If you are considering taking a demerit points infringement to court because you think winning the case will help you make an insurance claim or help you prove you are not liable for damages following a motor vehicle collision then you must make an appointment for advice prior to lodging any court election.

consequences_of_electing

Consequences of electing to go to court.

After lodging an election to go to court you will receive a letter telling you that the infringement notice has been withdrawn. Once the infringement notice has been withdrawn it ceases to exist, so no demerit points can be recorded, no licence loss can be imposed and the fine can no longer be paid - even if you change your mind. After electing to go to court the court papers usually arrive in the mail within a few months, although the informant has 12 months from the date of a traffic offence to file charges at court. For camera offences police are allowed 12 months from the date of a nomination statement to commence a prosecution against a nominated person. Once you have received court papers you should make an appointment to seek legal advice. 

If you take a traffic infringement to court you will be prosecuted for a criminal offence in a criminal court. You will then have the option to attend court to plead guilty or not guilty, or don't attend the court case and see if the court determines the case in your absence. The timing of your court case is something you will sort out with your lawyer.

If you are found guilty or plead guilty, it is rare (but not impossible) for the court to impose a fine higher than that stated on the infringement notice. It is also quite rare for the court to impose a period of licence loss that is greater than the mandatory minimum period that was on the infringement notice. 

You should not be worried about your court outcome appearing on your criminal record.

The usual downside to going to court and losing your case is the risk of being ordered to pay court costs of around $95 - $140, as well as taking a day off work, and if you engage your own lawyer then incurring your own legal fees.

consequences_of_objecting

Consequences of objecting to a license loss infringement notice.

For an infringement notice that imposes licence loss, objecting to the notice will cancel the infringement notice.  A cancelled TIN can not suspend or cancel a person's drivers licence. You do not pay the fine.  The enforcement agency which issued the TIN (usually the police) will then have the option of prosecuting you in court by serving you with a charge and summons. At court, the TIN is irrelevant to the prosecution case and is generally irrelevant to your defence because it has been cancelled. After lodging an objection to an infringement notice it is no longer capable of suspending your licence so this often this means you can continue to drive until your court case is heard - provided your licence has not been suspended for any other reason. After you lodge an objection, the police will write to you and confirm receipt. Usually you will receive a charge and summons in the mail about three months after lodging an objection. They are allowed to take up to a year to file charges. Once you receive the court papers you should seek legal advice about defending the charge.

The downside to lodging a court election is that you will incur legal costs if you seek legal advice, you will usually have to attend court and spend time dealing with your case, and there is a tiny chance the fine or licence loss period will increase.

The benefit of taking an infringement to court is that you will save your licence if you plead not guilty and are acquitted. You might also buy some time to get yourself ready for any period of licence loss. You might receive a sentence which is better than what was on the fine, such as no conviction, or a lower fine. If you plead not guilty it is possible to receive a shorter period of licence loss. 

#should_I_object_to_the_infringement_notice

Should you object to the infringement notice?

If your licence is at risk and that is a problem for you, then yes you should take the infringement to court - unless it is a drink driving infringement for a reading under 0.07%.

  • If the infringement notice itself imposes license loss, then in 99% of cases you must object to it if you want to keep your license.
  • If the fine carries demerit points, then you might need to object to it if you don't want to incur demerit points. Read the section on Demerit Points too, because you should be making an urgent conference appointment to get help with your points problem before you take your fine to court.
  • If you believe you did not commit any offence, then taking the fine to court will be necessary if you want to avoid being unjustly penalised for something you did not do.
  • If you are disputing civil liability for a car accident you must seek legal advice and do not object to the infringement notice unless your barrister tells you to. Objecting to the infringement notice in this situation usually makes things worse for you.
  • If you want to delay the commencement of your licence loss period, taking the case to court can allow you to keep driving for many months or years before the cancellation commences.
  • If you want a barrister to get you off on a technicality, then you must object to the infringement notice and take it to court.
  • If you think your offence circumstances were very unusual, that the police have failed to follow proper process or you think you have a defence then lodging an objection is the only effective way to challenge the matter.
  • If you want the court to give you a lesser penalty to what is stated on the infringement notice, then you should object but remember the court can not reduce, waive, ignore or discount mandatory license loss periods unless you are acquitted.
  • If you are content to pay the penalty and suffer the consequences (e.g. possible licence loss, demerit points, conviction recorded, financial penalty) then you do not need to elect to take the matter to court.
  • If it is a drink driving infringement with a reading under 0.07%, please make an appointment to see a lawyer before you object to the fine.
  • If you can not justify spending over $7,000 to avoid licence loss then you should pay the fine and lose your license. There is no point spending $450 on the initial consultation if you can't afford to defend the case in court.  A typical speeding case costs around $7,500. A typical drink driving case is about $9,000.
    No one is going to win your court case for less than that.
  • If you are objecting so you can plead guilty in court you are just wasting time. It is absolutely impossible to avoid licence loss by pleading guilty to a licence loss infringement. If all you want to do is waste time, lodging an objection to await court papers will delay the start of your licence loss period.

Many people don't want to take their infringement to court unless they know they have a good chance of winning. In most cases it is impossible to advise you whether there is a good chance of winning until we have studied the charge and summons, the brief of evidence and often the body-worn camera video. You get those things only after you take the infringement to court. So the process is to take the case to court and then make an appointment for a conference to work out if the case is worth defending.  After your lawyer has checked the charges, the summons and the police brief of evidence he or she can advise you what your chances of success are. Then you can decide whether to plead guilty or not guilty at court.  Your court case is not about you or what you did. It is about the police and what they failed to do.

If you are thinking of emailing me your story to ask whether you should take the case to court, please don't bother - the answer is yes if you want me to save your licence. In 99% of cases taking the infringement to court is an essential prerequisite to determining whether or not your case is worth defending in court.

 

 

Related Pages:
Speeding
Demerit Points
Fines Victoria
Legal Advice
Internal Review

aussie speeding fines

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