How to negotiate a smaller fine
MOST traffic offences around Australia carry mandatory licence disqualification periods.
This means that no matter how good or bad your criminal/traffic history is, you must lose your licence for a period between one month and five years.
As a truck driver, the loss of a licence could cause extreme financial hardship by depriving you and your family of your means of earning an income.
Big Rigs regularly receives emails from readers with their pleas for help regarding criminal/traffic offences.
For example, we recently received a question from a truck driver who was charged driving "unregistered” due to a newly installed bull bar obscuring the front number plate of his truck.
Robust case conferencing before the hearing with the prosecutors could reduce the charge to the correct offence - resulting in a smaller fine and no loss of licence.
In response to our recent questions, we have decided to put together this brief guide to case conferencing with the prosecutors (the lawyers for the police).
HOW CAN DEFENCE LAWYERS HELP?
There are many jokes about lawyers and how they are seen in the community.
Jokes aside, I see my role as a "translator”, converting your story into a correctly ordered emotionless set of instructions.
We then put that to the prosecutors or the court in the same language and order that the police or judges require the information.
When negotiating with the prosecution, lawyers are generally able to have more robust conversations on your behalf - due to our regular professional dealings with them.
We also know the law and the alternative charges that are open on the facts - making the negotiation process much quicker.
It is always our advice to speak to an expert to negotiate on your behalf.
If you are not going to use a lawyer, the following is a brief guide to case conferencing with the police prosecutors or the lawyers representing the prosecution.
What is case conferencing?
Case conferencing is the legal word for negotiations and discussions between prosecutions and defence.
The aim is to discuss issues in dispute in order to bring about an early resolution to proceedings, which may result in:
The amendment, substitution or withdrawal of charges; and/or an agreement as to a factual basis for a plea.
Before doing this, you need to familiarise yourself with the Burden and Onus of Proof.
Burden and onus of proof
It is important to remember going into any negotiation with the prosecution, which party is required to prove things.
Generally, in criminal law, the burden is on the police to prove your guilt.
There is no burden on you to establish your innocence.
The prosecution must prove your guilt beyond reasonable doubt.
To do that they must prove every element that goes to make up the offence charged.
However, sometimes - for example in cases involving drugs, you may be required to prove you were not in possession of a drug if it is found in your house or car.
Check the elements of the offence
It is important to familiarise yourself with the legislation, or the rule that you have been charged with.
You should look at the wording of the legislation and break it up into its elements.
Check if there is sufficient evidence in the police summary of facts to show that each element of the charge has been made out.
If not - then you may have a good chance of being found not guilty.
It is also important to check if there is an alternative charge available.
Is there a less serious charge?
You should also check if there is a less serious version of the charge.
For example, in Queensland, if you are charged with failing to stop a vehicle when police activate lights and sirens, the legislation says you must go to prison for 50 days - with a minimum two-year licence disqualification for evading police.
However, with negotiations, you may be able to have the charge reduced to a similar worded charge of failing to stop that is a fine only offence, with no mandatory disqualification period.
The communication with the prosecutors should indicate that you would enter a plea of guilty to the lesser charge to save everyone time and effort of a hearing.
Depending on the nature and seriousness of the offence, the police are generally happy to accept a deal where they do not have to go through the cost and inconvenience of a trial.
If you have some evidence that may lead to your acquittal, it is a good opportunity to disclose that to the prosecution - as it may resolve the matter (eg. dash-cam/iPhone footage).
Of course, there are always positives and negatives when it comes to negotiations with the prosecution, which are set out below.
Traditionally, the longer you take to resolve your case the higher the penalty the court may impose.
If conferencing is not successful and you plead guilty, or are found guilty, you will generally get a bigger penalty (plus costs in some cases).
Communicating your case may "show your cards” which can make it easier for the prosecution to prove the case against you if conferencing is not successful.
There is no "without prejudice” communication in criminal law.
This means (subject to the rules of evidence), anything you put in writing about the case may be used against you.
You may inadvertently admit to another offence, leading to further charges.
This is why we recommend you get a lawyer.
Potential positives of conferencing
The charges may be dropped - meaning you are acquitted.
There may be an "early” plea of guilty if charges are amended or facts are changed.
You may get a less serious charge - which has no mandatory prison time, licence disqualification, or is less likely to lead to recorded convictions.
The process may narrow the issues to be determined at trial - making the length of the hearing shorter (for example, where you admit you punched someone causing a black eye, but you say that it happened in self-defence. This means people such as medical officers may not need to take the day off work to give evidence).
In summary, it is always your choice to case conference.
We always advise that you obtain independent legal advice regarding your particular circumstances.
Great advice from Rowan but sometimes the mysteries of how the prosecution works still leaves us scratching our heads.
The truck driver who inspired this column did engage a lawyer to negotiate on his behalf with the RMS but it wouldn't budge.
Choosing to fight the ticket in court instead, our determined truckie convinced the judge to dismiss the case but he was still left $1600 out of pocket in legal fees and court costs, as well as the loss of income and cost of travel (1000km).
"If the RMS had looked at our appeal correctly it would probably never have gone to court. So in the end I'm out of pocket for just doing my job and they walk away with no penalty...”
If there is a legal issue you want us to write about, feel free to email Big Rigs at firstname.lastname@example.org.