Cycling in Sydney Australia
My husband received his letter of apology from the State Debt Recovery Office (SDRO) a few days ago (see attachment) regarding his infringement notice which he received while bicycling.
Since my husband hasn’t received a traffic penalty for over 20 years, we have no experience of appealing traffic infringement notices. The following is based on what we subsequently learnt which help others we want to contest traffic penalties. (I'm also attaching our letter to SDRO.)
Penalty Notice and then Court? Not necessarily.
When issued with your penalty notice you have 21 days to pay the fine or lodge an exception and then (we assumed) you go to court if you want to contest it.
There is an intermediary step.
State Debt Recovery Office.
You can appeal the process (online) via the State Debt Recovery Office (SDRO). In spite of its claim that about 95% of claimants get rejected, don’t let this deter you!
You have to fill in the online form. Note i. You need to summarise your appeal in 700 CHARACTERS (not words). You can then attach your letter of appeal as a pdf which can be as long as you like.
Finding fault with the Penalty Notice
Question [if applicable] the competence of the policeman filling out the form. Look for incorrect word usage e.g. ‘driving’ not ‘riding’ (or the verb ‘use’ when ‘hold’ more appropriate) or other factors noted on the form; e.g. in this case the policeman wrote that my husband had also lost 3 demerit points on his car license which seemed nonsensical given he was cycling at the time.
If it doesn’t make sense question it.
If you can, get the opinion of another policeman.
Day St Traffic Unit (Police Station)
If booked within the city of Sydney, call this police station and speak to the traffic dept. Raise issues which concern you about the penalty notice. Note everything about this conversation: the rank of the policeman. Time/date. Add this to your letter.
Issuing a penalty notice instead of giving a caution
Question: was it reasonable for the policeman to issue the infringement as opposed to giving a caution? If not, use this as another reason for objecting. I found out that the same policeman cautioned a young female cyclist who ran a red light which seemed far more serious an offence than holding a wallet containing a mobile phone.
Your driving licence
If you have a clean driving record (i.e. a clean driving record for 10 years), you can use this as a reason for being let off. The SDRO has a box you ‘tick’ when you complete your online application.. Easy! i.e. you don’t need to get your licence history (via RMS as we thought) and nor is this something you’d need to bring up with the magistrate.
Obtaining video footage
Don’t think that you are entitled to view any video footage the police may have recorded because you are not. if the footage is introduced as evidence and the matter goes to court then you will be allowed to see it, but not before, as far as we’re aware.
The laws used:
Haha, too true, Bob!
when I had an altercation with some brute the policewoman at the other end of the phone said 'cant do anything unless you took a photo ' I was on my bike
Yeah I looked closer at the rule today, and yet again, they've made a poor choice of regulation writing, as in the definition they've redefined hold as use. Really poor rule writing - if they wrote the regulation as hold or use, then (a) we'd all always have been clear as to the intent of the regulation (b) any place where the definitions aren't shown with the rule, would still have the correct rule. The only thing that should have needed definition was the hand-the-phone rule.
Well done getting the TIN withdrawn.
I'm unsure about some of your advice regarding appealing to the SDRO. The legal advice I received is that the only time you should bother is if you don't intend challenging the TIN in court in which case you have nothing to lose. It seems that pointing out defects in a TIN can result in a non defective replacement TIN being issued. I know that lawyers are serving their own self interest by recommending going to court but there is a lot to be said for not providing the SDRO with your defence and waiting until a judge can offer their opinion as to whether an offence was committed.
As to demerit points - I'm unsure about NSW and whether the recent law changes now mean that demerit points can be applied to your drivers licence for cycling offences but certainly in some states they can, for example SA (yes this is completely insane but who said the law wasn't asinine?):-
You can be charged with a traffic offence in the same way as a motor vehicle driver. This includes incurring demerit points against your driver’s licence if you hold one. If you do not hold a driver’s licence you will still incur demerit points which can prohibit you from obtaining a licence in the future.
Last time I looked the national demerit point scheme was for motor vehicle offences so you could likely dispute them for interstate cycling offences - but I don't know how or if you would prevail. I also have no idea how SA keeps a record of demerit points when you don't have a driver's licence.
Obviously there's a choice to make between objecting to a faulty TIN and just opting for court on the basis of 'not guilty'. Based upon your conjecture, if they have the chance of fixing a bodgy TIN up then vanilla 'not-guilty' court option would be the go.
The cycling offences on the general fine/demerit download doodad show no points for cyclist offences in NSW.
Clearly if cycling in SA there is no way in hell you should let them know you have a licence. Therein lies the identity paradox, since some states are tracking points by identity so that they can be applied to a licence when the person gets one.
I agree, well done on getting the SDRO to withdraw the infringement but if there is a next time you could do better with the letter. For one thing, when writing this type of letter it is important is to tell them what you want. They have several options and if you don't tell them what you want they have to guess the outcome you would be happy with. If you would be happy with a caution rather than having the penalty stand tell them that. If you want it withdrawn tell them that. But if you want it withdrawn and dont ask for that they could issue a caution which you might not want. It is important that this goes in the front part of the letter. They are that busy that if you tell them what you want in the first paragraph and it is is reasonable I doubt they read to the end of the letter.
Once you have decided what you want from them only given them reasons to support that outcome. If you want it withdrawn, explain why the offence doesn't apply to bicycles or that you only used it while parked etc. Leave out the good record stuff as that is a reason to downgrade to a caution and not a reason to withdraw the fine. If they decide to let it stand you can always use the good driving record at court later if you want to push it.
Giving the SDRO too much information lets them change their tactics and potentially reissue a corrected infringement notice especially if you admit to doing something illegal.
Explain things in chronological order. This isn't a time for Tarantinoesque story telling. What happened at the time and what you did after the incident. In your letter you have this very back to front with no clear description of what happened at the time until the third paragraph. It is also important to separate opinions from facts, preferably in separate paragraphs. This is important because if it comes to a close decision reviewed by those higher up in SDRO as to weather they want to push it or drop it if you sound like you will be able to explain yourself clearly to a judge they know they are more likely to loose and so are more likely to drop the action.
Don't use "In my view..." or "to the best of my knowledge..." these words make you sound less certain of yourself.
I have a feeling that the SDRO are having a very relaxed view on pedestrian and cycling fines at the moment. A friend at work got pinged for jaywalking, wrote a letter and had SDRO issue a caution with no fine. I suspect its a way of increasing policing without having a huge public backlash.
Reads like you know how the system works...
In summary then: tell them what you want them to do, and let them form the view that the matter will probably fail in court .
Exactly our intent. That, armed with Alex's comments, would've been good. We'd intended to go to court then this SDRO came up and we didn't expect the outcome we got. But the more we have these things on here, the better informed we'll all be, we hope!
Alex, wish we'd had your input before! Well, this is a learning curve for us all, I guess. We'd purposely chosen words like "in my view' exactly thinking that in a court of law that might be 'safer' than using categorical statements. Anyway, your feedback is extremely useful and for anyone else on this who may get a penalty notice.