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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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I have a speeding notice from NSW. It claims i was

Customer Question

I have a speeding notice from NSW . It claims i was photographed speeding at Nerong. I looked at the online photograph. It is bad and i cannot tell if it is me or my friend. Neither of us can recall who was the driver. Do I have any defence. It is for $260 and 3 demerit points. What is my best course of action?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.

Hello and thank you for your question.

Under section 186 if you were not the driver then you are generally obliged, as the registered owner of the car, to nominate the person who was driving the car at the time of the offense:

http://www5.austlii.edu.au/au/legis/nsw/consol_act/rta2013187/s186.html

If you wish to dispute that you were the driver, but cannot comply with s186, then the court will only escape being treated as the driver if you can satisfy the court that your inability to do so was reasonable in accordance with s.187(b):

http://www5.austlii.edu.au/au/legis/nsw/consol_act/rta2013187/s187.html

A court could take the view that if you were acting as a responsible registered owner you would have kept a record of who you allowed to drive your vehicle and when. Alternately, if you were regularly rotating the driver, it could be arguable that such a system would hardly be infallible and therefore would not have allowed you to identify the driver with certainty. Whether taking the matter to court is worthwhile to try to avoid such a fine and point loss, is something for you to decide on, but you have an arguable, if uncertain case.

I trust the above assists.

Good luck and please rate my answer.

Patrick

Customer: replied 1 year ago.
Thank you for that. I really dont know if it was me or my friend. The camera evidence is useless. (for helping me choose anyway) I am willing to nomate all people who could possibly be the driver. Me or my friend. and let the magistrate decide. Can this be done by submission without attending court? Has this approach ever worked?
If i attend court would I likely be better off than if i made a submission.
Where is the court located for this speeding fine?
Expert:  Patrick H. replied 1 year ago.

If you cannot nominate another driver then the only way to contest it is to be prepared to go before the court, tell your story and hope that the magistrate believes you and is sympathetic enough to accept that it was reasonable in your situation not to be able to nominate the driver in question.

The requirement to nominate someone is a strict requirement normally done by statutory declaration. To falsify a statutory declaration is a serious criminal offense punishable by a term of imprionsment. Accordingly, you must be very careful not to nominate someone unless you have good grounds for believing that person was the driver, and based on what you have said, it appears you do not have such clear grounds.

Whilst it is a matter for you whether you contest the charge, unless you can simply persuade the police to withdraw the infringment notice, you will need to contest the matter in court. No doubt contesting a charge on the basis of confusion over who was at the wheel has succeeded many times, however, it will simply depend on whether the court believes your uncertainty as to who was at the wheel is both genuine and reasonable, and it is not possible to predict how a court will decide those issues before you and/or your friend give evidence on the matter.

If you need assistance considering what is involved in defending the matter before the court, the following links may assist:

http://www.localcourt.justice.nsw.gov.au/

http://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/going-to-court-guide-to-the-local-court-for-defendants

I appreciate that may not be the answer you were hoping for, but I trust it assists.

Good luck and please rate my answer.

Patrick

Customer: replied 1 year ago.
just one more thing please. I live in Hope Island Queensland. If I succeed am I entitled my costs to attend court. I assume I have to go to Sydney. That is a return airfare from Coolangatta and return taxi fares to court.
If so, is it worth mentioning this to the police if I try to persude them I cant identify the driver. (i am willing to name the other person)
Expert:  Patrick H. replied 1 year ago.

If you win your case it is possible that some of your expenses will be met, but it is a discretionary thing and in my exerience you won't get fully reimbursed for your costs. Moreover, the reality is that some of the hearing dates will only be preliminary hearing dates, and if you contest a charge it is possible that a matter set down for determination on one day will end up being adjourned to another date. Unfortunately the courts tend to set down a considerable number of cases on any particular day and do not always get through them. Moreover, if a party, whether the prosecution or the defendant has an issue preparing their case the court will often simply adjourn the matter. This is a very serious problem for parties who are unable to attend court, and realistically, is an extra reason why it may not be worth contesting an infringment notice, expecially for only a couple of hundred dollars.

Whilst the courts do have factilities to hear matters remotely in some circumstances, and a prosecution can sometimes be listed for hearing at a court more accessible than Sydney, such services are not always available, and you will need to contact the court registry to see whether it is possible to a) have the matter transferred to a court closer to where you reside, and/or to have your hearing dealt with by telephone or audio/visual link up.

I trust the above assists.

Good luck and please rate my answer.

Patrick

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