Traffic Lights

Traffic lights are a part of daily life, inattention can cause loss of licence! |supplied by Fin Fahey

In a case that we did this week we had a driver whom had lost his licence and had almost no chance of getting his licence back.

We will refer to his as ‘Alf’, however that is not his real name.

The Facts:

  • He was a professional driver mainly driving buses with school children as passengers.
  • He had accumulated 63 demerit points since 1983.
  • He told us that he had received a demerit point suspension because he had accumulated 14 demerit points as a professional driver within the last three years.
  • Alf this time had been caught on camera going through a red light.
  • He was issued with a penalty notice which he paid.
  • Payment triggered a conviction which then in turn triggered three demerit points.

This meant that he would be suspended for three months.

However like so many drivers, he elected to accept a good behavior licence instead of the 3 months suspension.

  • This meant that for the next 12 months he was not to commit a traffic offence with 2 or more demerit points.
  • The sting in the tail for this RMS generosity was that if there was a breach of the good behavior licence, the suspension period that was applicable before the good behavior option was taken, doubles. In Alf’s case this would meant 6 months.

Alf received a letter from the RMS advising him that he was going to be suspended for 6 months.

 Alf Says “What can I Do?

A driver has a number of options available to him or her depending on the individual’s circumstances.

Alf only had the one option: He could have made an election to have his case determined in court when he got the notice but had not done so.

The Law

S24A of the Fines Act 1996 sets out the procedure and the circumstances for a review of a penalty notice. That is if you are seeking to review a decision made, to issue you with the penalty notice in the first place and even before it gets to court, you have to follow this section.

It doesn’t matter that you have paid all or part of the fine but you must comply with the time limits imposed by this section, in which you are permitted to make the application.

Such an application may not be made later than:

  • If the whole of the amount due has been paid and no penalty reminder notice has been served on you in respect of the offence —60 days after the penalty notice was served.
  • In any other case the due date specified in the penalty reminder notice for payment in relation to the offence concerned.

Alf told us that he received a penalty notice and paid it straight away. Thus he had 60 days after the penalty notice was served. Note that the section refers to service of the notice, not the payment of the penalty. When we saw him the time had lapsed.

However, should you find yourself able to seek a review, you will need to note the guidelines that are used by the agencies that conduct such reviews. These are to be found set out as “Caution Guidelines under the Fines Act 1996” issued by the Attorney Generals Department.

ALF’S Only Chance

The agency under the circumstances would not likely conduct a review if the application was out of time because it did not have to do so. Alf also had by now been sent a notice stating that his licence would be suspended because he had breached his good behavior licence.

A decision was made, although seemingly in a hopeless situation, to write to the agency under s24B of the Fines Act which we were of the opinion was a discretionary section available when an agency that decided not to conduct a review, may nevertheless, take such action as it saw fit, including the withdrawal of the penalty notice to which the application related to.

The Result: Alf’s Gamble Pays Off.

We advised Alf that the chances of succeeding were very slim.

  • With 63 demerit points and in breach of a good behavior licence, leniency could not be expected.
  • However we wrote the letter and the response was that the penalty notice would be withdrawn.
  • By this time Alf had started his suspension from driving and had paid the fine.

As a consequence of the penalty notice being withdrawn, so was the suspension and Alf got his fine paid back.

He was then given the option of having his day in court, which he elected to do.

Alf’s Day in Court

  • The matter came before a Magistrate who listened to the explanation as to the circumstances of the offence and other considerations.
  • Although the Magistrate was concerned with Alf’s traffic history she was prepared to exercise leniency.
  • The result was that Alf was not convicted but was required to be of good behavior for 6 months applying S10 1(b) of the Crimes (Sentencing Procedure) Act 1999

Because of a change of Legislation the Roads and Maritime Services authority is no longer required to record demerit points when a court uses S10 of the Crimes (Sentencing Procedure) Act 1999 to dismiss an offence without conviction. (S31 (4) Road Transport Act)

Alf was obviously happy with the result. He was able to drive and he was no longer suspended for 6 months. To a certain extent he was very lucky. But he was prepared to try and the Magistrate was prepared to give him a go.

Whenever administrative decision are made, such as the issuing of penalty notices and the mandatory allocation of demerit points, these are made without consideration of the surrounding circumstances or the driver.

Sometimes these are needed to be considered to get a just and fair result.

Please note that the above information is given in general terms as a guide only to the possible solution of the problem presented. It should not be used as legal advice for a problem that you may be facing.

Paul P Falzon can be contacted at paul@falzonlegal.com.au or (02) 9502 2922