Court Processes
In order to understand New South Wales traffic law, it is necessary to understand the court processes involved in finalising a traffic matter. These include pleading guilty, contesting a matter and initiating an appeal. This section of the site contains articles about these processes, which are also summarised below.
Court processes: how do traffic matters come to court?
There are a number of ways matters can be brought before the court. The type of matter governs the way in which the court process commences.
Court Attendance Notice (CAN)
A person usually receives a CAN when an offence (other than a traffic infringement) is committed and they are charged by police. If the person is not arrested, the police can issue them with a CAN for a date in the future, requiring them to attend court on that date.
Court Election
Any person who receives a traffic infringement or infringement notice can elect to have the matter determined in court. The court election can be made online. Once a person elects for this to occur, they will be issued a CAN by the court, usually via post.
Appeal
If a person is appealing a licence suspension, appealing a decision of the Local Court or making another application (such as an application to remove a Driver Licence Disqualification), an application must be prepared and filed with the court registry. Once this is done by the Registry, the Local Court will issue the person with a court date for that appeal, whether that be in the Local Court or District court.
Court processes: First appearance
On the first court date, which is also known as the first mention, the court will want to ascertain what is happening with the matter.
Where the matter relates to offences proceeding by a court election or court attendance notice, the magistrate will usually ask the person whether they wish to enter a plea of guilty, not guilty or seek an adjournment for legal advice.
Where the matter relates to an appeal or other application, the court will confirm whether the person is ready to proceed or require an adjournment.
Court processes: Pleading guilty
A person who pleads guilty to a traffic offence admits to the elements of the offence. If the facts sheet is agreed upon, the matter can proceed to a sentence on those facts.
If the accused does not agree with the alleged facts and the facts can’t be agreed with the prosecution, they have the option of proceeding with a Contested Facts Hearing.
Pleading guilty to an offence does not automatically mean that the person will be convicted. The court may order a finding of guilt without conviction (depending on how serious the offence is) or record a conviction and impose a sentence, including a term of imprisonment.
Traffic offences can be dealt with in the following ways.
- Non Convictions
- Section 10 dismissal with no further penalty.
- Conditional Release Orders (CRO) with a period of good behaviour.
- Convictions (without imprisonment)
- Conditional Release Orders (CRO) with conviction and a period of good behaviour;
- Community Corrections Orders (CCO) – a period of good behaviour which can include supervision, community service work or other conditions.
- Convictions (with imprisonment)
- Intensive Corrections Orders (ICO) – prison sentences to be served in the community, which can include home detention and other conditions.
- Full-time imprisonment.
Court processes: Pleading not guilty
If you did not commit the offence, have a defence, wish to put the prosecution to proof or if you believe you have been charged incorrectly, you can enter a plea of not guilty to contest the matter. It is the responsibility of the prosecution to prove their case against you beyond a reasonable doubt, not your responsibility to prove your innocence.
Following a plea of not guilty, the court will make brief service orders, where a brief of evidence is required to be served. Many traffic offences do not require a brief to be served. If a brief is required to be served, the matter will be adjourned for that to occur. The matter will then be set down for hearing if, after reviewing the brief of evidence, the accused maintains their plea of not guilty. Where a brief is not required, the court will simply set the matter down for hearing
Licence suspension appeals & other applications
Under certain circumstances, you can appeal a police suspension or an RMS licence suspension. It is important to note with licence appeals, the decision of the Local Court is final.
If your traffic matter has been dealt with by the Local Court and you feel that you were wrongfully convicted and/or the penalty was too harsh, you can appeal the decision of the Local Court to the District Court. These are referred to as severity or conviction appeals. Once an appeal is filed with the District Court, the process commences all over again with a new mention date in the District Court.
Other types of applications that are regularly filed with the Local Court include appeals to remove Habitual Traffic Offender Declarations (HTOD’s) and Driver Licence Disqualifications Removal Applications. There are specific requirements for a matter be eligible for these appeals and you should seek legal advice before filing an appeal or application.
If you are facing traffic charges, or have received a traffic decision that you want to appeal, please contact our traffic lawyers to discuss your options.
For more information about the above processes, see the below articles: