Have you been booked lately? Do you want to fight it … maybe even get off? I interviewed a legal specialist to find out where the goalposts are in Australia.
Every time you drive a car, a heavy burden descends on you. It does not increase your fuel consumption. You can’t feel it. Most people never even think about it. It’s certainly not a ‘front of mind’ issue.
It’s the law. A raft of legislation descends on you. And you’ve heard about the carrot and the stick, right? Well, the law is all about the stick - at least in my view. And it’s so damn easy to make a mistake, or to have a cascade of unlucky events that culminate in a huge fine, a long holiday for your driver’s licence, or - if someone dies and you’re found to be driving dangerously - a custodial sentence.
How confronting: I went down the road to pick up some milk, and now I’m sharing a cell with Bubba. It happens. So, what do you do, when you’re standing on the side of the road, looking down the barrel of a substantial legal problem? What do you say? What are your rights? Let’s find out.
Adam Ly runs LY Lawyers in Sydney. He’s a criminal and traffic specialist with 20 years experience defending people in all kinds of situations flowing from alleged traffic offences, and I’m very pleased to say he joins us today on location in the city.
CONTACT DETAILS: Adam Ly, Ly Lawyers (Sydney-based) 1300 595 299, www.lylawyers.com.au
(Ly Lawyers did not sponsor this report.)
QUESTION 1 - DEALING WITH THE COPS
Hello Adam. Thanks for your time. I guess - thankfully - for most of us, for our whole lives, our sole interaction with the criminal justice system is standing on the roadside, being handed some traffic infringement by a police officer. Talk to me about being in this situation, and passing the attitude test without incriminating yourself.
You don’t need to be rude, you don’t need to be blunt. It’s important to let the police officer know that you are aware of your rights. You want to co-operate, you’ll do everything that is required of you but you are aware you have the right to remain silent. I know it sounds clichéd but it really is a very strong rule that should be followed by people who are charged with criminal or serious traffic offences that you have the right to silence.
QUESTION 2 - MAKING STATEMENTS
That sounds great - in theory. But you’re standing on the side of the road. You’ve just had a crash. You’re a bit shaken up. You think you might be responsible. The cops say ‘you must give us a statement’. What do you do?
The law as it stands is that you are required in circumstances where you’ve had an accident, to provide the police with a version of events or how the accident happened. The extent of which you provide that version is really the question. The first thing you really should know if you are charged with a serious traffic offence, such as, dangerous driving occasioning death which more than likely would result in a full-time custodial sentence, is that you should speak to a lawyer first. You should exercise your right to silence… there is still a right to silence, however, you should speak to a lawyer first about how far you should go in terms of communicating with the police and abiding by the law that requires you to provide a version of events after the accident.
QUESTION 3 - INCRIMINATING YOURSELF
In many cases, at the roadside, there’s just not a lot of hard evidence. And I suspect a lot of drivers make statements that incriminate them, and thus blow many opportunities for a good defence. Talk to me about incriminating yourself at the roadside, or back at the station.
Even if you weren’t cautioned, before speaking to the police and making an admission or a confession, that admission (or confession) could be still found to be admissible. So it’s very important for all drivers out there to know their rights. These American movies make sense… DON’T say anything before you speak to your lawyer. It’s very important. I say it to so many of my clients. If you get in trouble, it’s not an admission of guilt exercising your right to silenced, but do so and call your lawyer immediately.
QUESTION 4 - MAKING ADMISSIONS
Just to expand on that: if you make an admission: I was speeding, whatever, the genie’s out of the bottle, right? You can’t put it back, can you?
That’s right and generally the police officers now will tell you you’re being recorded so that in car video, ICV, is admissible in court, so you have to careful what you say.
QUESTION 5 - POLICE & DIRTY TRICKS
I don’t want to impugn the character of police at the coalface - because their job is, I’m sure, very hard, and ultimately they keep us safe, but they’re also pretty good at getting people to make admissions, right?
Of course, for example: ‘You were speeding, are you aware of that, Sir?’, ‘You were going 20kms over the limit, are you aware of that Sir?’ or ‘You were going a little bit fast weren’t you Sir?’ Those loaded questions in the heat of the moment can result in answers that aren’t necessarily truthful.
QUESTION 6 - SERIOUS OFFENCES & GETTING ARRESTED
OK - so we’re shutting up (but with great cooperation and tremendous politeness and respect). And we’re talking to a lawyer at the first opportunity. There’s a more serious nightmare scenario: Someone dies. You get arrested. They charge you with dangerous driving occasioning death - that’s a criminal offence. I’ve never been arrested. What happens?
They’ll place you under arrest, they’ll tell you your rights: ‘You have the right to remain silent, you’re being arrested and we’re going to take you back to the police station.’ They’ll either handcuff you or they’ll escort you to the police car and they’ll take you back to the police station. They’ll read you your rights again. It’s called a Part 9. They’ll read your rights at the police station. They’ll ask you all the general questions about your health, just to ensure they’ve got the right resources to take care of you and that you’re not at risk of harm to yourself. Generally, they would offer you a electronic recorded interview of a suspected person. We call that an ERISP interview. They will read you your rights again.
Are you able to decline that interview?
One hundred per cent.
Is that something you’d advise people to do?
One hundred per cent of the time. Unless you are at the police station, there’s an exception to the right to silence. We call that a ‘special caution’. That applies to more serious kind of offences. Now a special caution can be administered by a police officer in circumstances where you are charged with a particular type of offence, generally a serious offence and a special caution, in short, requires you to inform the police and disclose matters that may be relevant to you defence.
QUESTION 7 - THE SOCIAL CONSEQUENCES
I don’t want to trivialise the less serious offences, either. If you accrue a few points then get a big fine on a double demerit weekend, you can lose your licence. You might lose your job. That might prevent you from paying the mortgage. Your marriage might fall apart. Things can be fragile - or at least more fragile than we imagine, right?
People underestimate that as well. They don’t foresee the drastic consequences of losing your licence for three or six months, in some circumstances. They don’t really appreciate how debilitating it could be so it’s important that people understand their rights in terms of what they can do after they’ve lost their four points, or their seven points or their thirteen points as a driver.
QUESTION 8 - WHEN TO FIGHT
That opens the door to an obvious conclusion. If you’ve got a clean record and you get one speeding fine, the temptation to pay it and move on is huge. People are disinclined to hire a lawyer and go to court. So, it’s the easy option just to pay. But when you’ve just been handed your third fine in three years, and your licence is hanging by a thread, it’s got to be very hard for you then to make that driver look like a good candidate for leniency. That’s a paradox.
Definitely, because then you’ve got a record. That doesn’t necessarily mean you lose your licence or go to jail... ‘do not pass go’. There are mechanisms to allow or to give drivers an opportunity to get back on the road through the court system despite a previous record.
QUESTION 9 - SECTION 10
Talk to me about Section 10 of the Crimes (Sentencing Procedure) Act, and how an otherwise good driver might benefit from that.
Section 10 of the Crimes (Sentencing Procedure) Act gives a magistrate or a judge (or the court) a discretion not to impose a conviction in traffic matters also in criminal matters. What that would mean in terms of traffic matters, for example, red light camera offence or speeding offence: if the driver would to choose to take it to court, and they are either found guilty by the court or plead guilty by the court, the magistrate has a discretion not to impose a conviction and therefore not triggering either the penalty that would otherwise be applicable (ie. a fine) and the loss of demerit points. So it’s a mechanism for drivers to avoid losing the points that apply to the offence and avoid the imposition of the fine that applies to the offence.
QUESTION 10 - WHO DESERVES SECTION 10?
That sounds - almost - too good to be true. How do they decide who deserves a conviction without penalty under Section 10?
More on Section 10 >>
The magistrate would take into account the subjective features: your personal circumstances, your need for a licence, your driving record, the hardship that it would cause upon your family if you were to lose your licence. On the other hand, the objective features of your case: how serious your offending was, how far over the limit you were in driving: the overall objective seriousness of the offence. The magistrate or the judge will balance those two things up and if they have a discretion, and they choose to exercise that discretion, you can be ‘let off’.
QUESTION 11- SECTION 10, AGAIN
I guess like a lot of legal things, Section 10 exists, but it doesn’t advertise. You have to know about it in order to apply.
That’s right. As a firm, we advocate Section 10 quite extensively. Now, it’s a pretty well known provision. Drivers and potential offenders really should be educated on Section 10.
QUESTION 12 - RETROSPECTIVE ACTION
Following that line of thought: Say I’ve just found out about Section 10, and I’ve just paid a fine. Can I retrospectively decide to go back and fight it in court, maybe apply for consideration under Section 10?
No, it’s an admission. The RMS payment of the fine triggers an automatic conviction or a finding of offending. Your points automatically go off.
QUESTION 13 - THE CONSEQUENCES
I’m tipping a lot of people who become your clients are extremely confronted by the positions they find themselves in, and if they could go back in time and do - whatever - differently, they certainly would. Given the unique perspective this gives you, what advice would you give the rest of us?
Driving is a big responsibility. You’ve got a responsibility to other drivers on the road and it’s something that you’ve got to be conscious of. However, these matters can be considered as extenuating circumstances. If you’ve got a really good reason for your offence, for example, I had one particular case where my client was drink driving taking his wife to the hospital because she was having stomach cramps and she’d had complications with her pregnancy.
We were in the local court, we pleaded guilty (with those reasons). It’s probably not enough to say that ‘I’m not guilty’ at that stage. However, my client was convicted. He received three months off the road for a ‘low range drink driver’ which was the minimum.
We took it to the district court, before Judge Jeffreys and he overturned that conviction in light of the reasons for his offending, the extenuating circumstances surrounding his offending.
QUESTION 14 - EXTENUATING CIRCUMSTANCES
I was going to ask you about that. Like, you’re camping by the side of the river. Someone gets bitten by a death adder. There’s no mobile coverage. You’ve had a few beers. You’re not going to not drive in this situation, surely?
The ‘defence of necessity’ and it falls right into that category that you are explaining, John. It’s a very rarely used defense but if you were in circumstances where there maybe an eminent danger to someone, and you drive to protect that person from that eminent danger, you have a defence to the charge.
QUESTION 15 - HOW SERIOUS CHARGES AFFECT PEOPLE
Back to this question of perspective: What’s your take on how being charged with a serious offence affects your clients - not so much legally, but as people?
Regardless of whether the result is good or bad, it changes them for life. Court is a very intimidating place. Probably not for people like myself or for you, John. It is built that way. The legal system in our country, particularly in Sydney courts, seems to be more and more protracted as I go throughout my career. The shortage of magistrates, lack of room in the jail and overcrowding in jails. The legal process is so stretched out which further exacerbates what is already a very bad experience. It can be some of the most profound and disturbing experiences in many of my clients lives.
QUESTION 16 - IS THE JUSTICE SYSTEM BROKEN?
If you believe in the world seen through the prism of talkback radio, the courts are too soft, the justice system is broken, etc. In your experience, does the system generally work properly?
I think so, yes. A lot of my offenders, particularly first-time offenders who aren’t dragged through the system since they were young kids: recidivist, particularly first offenders. I quite often don’t hear from them again. I’m hoping that’s not because they don’t want to use us or hire us again but I quite often see them or hear from them years later, they’ve rehabilitated. We read about the negative stories in the media but there are a lot positive stories out there as well. There are many institutions that do good work, that are unsung heroes. There are many rehabilitation centres and can tell you a dozen good stories about people who have rehabilitated. It’s just not as heard so much as the grim story that we read in the papers.
QUESTION 17 - REVENUE RAISING
This is not so much a legal question either, but it seems to me the law is an ass if we use it for the purpose of revenue raising. Fining people for comparatively trivial offences. I mean trivial in terms of law and order, and also trivial in terms of safety. In my view that corruption of the system undermines the bond of trust we should all share in the legal system. What do you say?
I’m not a politician, I don’t have experience in budgets, I don’t have experience in any of that… but it’s clear (blind Freddy can see) that a lot of it is revenue raising. A lot of it is, particularly in the infringements. A lot of people are targeted. For example, just last week, I received a fine at 3:02pm for a No Standing zone. It was two hundred and eighty dollars-odd. I’d come back at 3:04 and the No Standing time started at 3pm. So, one can only assume that the parking ticket officer standing there and waiting.
I’m sure this goes on a lot. I can’t comment whether it’s for another purpose other than deterrence.
QUESTION 17 - OVER-ZEALOUS ENFORCEMENT
But the law is here - surely - to keep us safe, and to promote order and fairness. Pinging you for being two minutes late, or me for being four kays over the limit achieves only two things: It makes money, and it undermines one’s faith in the system.
Most definitely. It’s just too extreme. You may share the same view with me, John but it seems to be getting worse and worse. My view is a little bit skewed; my views are a bit prejudiced from the type of job that I do, but it’s definitely balancing against the civil rights of the individual. Definitely.
QUESTION 18 - LAWYERS & SOCIAL JUSTICE
What a bleak way to wrap up. I guess, if you look for a silver lining here, it’s probably the fact that you’re not going to be unemployed any time soon…
[Laughs] That’s right. Without all this, I guess us lawyers wouldn’t be in a job, but still at the same time, I’ve got to say that we have a sense of social justice as well… lawyers. Any good lawyer should really have a sense of social justice, civil justice…
That’s Adam Ly, the principal of LY lawyers - with a unique take on the legal system and what you need to consider every time you wrap your hands around the steering wheel. You can contact LY Lawyers [TILT] here, If you’re in that confronting situation, it’d pay to have a bloke as passionate and as experienced as Adam Ly on your side, in my view.
And just so you know: I approached Adam Ly to be interviewed for this report. No money changed hands. I’m not being paid to spruik Mr Ly’s practice. But I hope the issues raised in this interview might be something you take with you next time you drive, like a legal first aid kit - just in case.
Hit me up via the website if you need a new car in Australia and you don’t want to go head-to-head with a car salesman. We use bulk buying power to drive the price down, and insulate you from the scams. I’m John Cadogan. Thanks for watching.