Guide

What a magistrate actually considers

This guide sets out what an application contains and what to prepare before the hearing.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

In short

The appeal asks the court to review a decision that has already been made. Set out your circumstances and the material that supports them.

On a demerit point suspension appeal it may dismiss the appeal, allow it, or vary the decision by substituting a shorter period. A police immediate suspension follows a different route under section 268 of the Road Transport Act 2013 (NSW). Ask for advice about which applies to your notice.

What the court is being asked to do

An appeal against a licence decision is not a re-hearing of the offences behind it. The points were recorded when penalty notices were paid or matters were decided, and those decisions are not reopened here. What is in issue is the licence decision that followed.

The powers are set out in the Road Transport Act 2013 (NSW), and which of them applies depends on the decision you are appealing. On an appeal against a suspension imposed for demerit points, the court may dismiss the appeal, allow it, or vary the decision by substituting a shorter period of suspension. On an appeal against a police immediate suspension, section 268(2) and (5)(a) allow the court to lift or vary the suspension only where exceptional circumstances are established, and section 268(5)(b) provides that the circumstances of the alleged offence are not considered on that appeal. Ask for advice about which applies to your notice.

Where that power applies, you can ask the court to substitute a shorter period as well as to allow the appeal. Get advice about what to ask for in your circumstances.

No one can tell you what a magistrate will decide. Treat any success rate offered to you with caution.

The circumstances of the offending

An appeal is not a re-hearing of the offence. On a demerit point suspension appeal you can set out the context: where it happened, what the conditions were, your driving history, and anything unusual about the day. On an appeal against a police immediate suspension, section 268(5)(b) of the Road Transport Act 2013 (NSW) provides that the circumstances of the alleged offence are not considered. Ask for advice about which applies to your appeal.

Give an accurate account of what happened and explain any relevant changes since. Get advice about which issues can be raised in your particular appeal.

Ask for an assessment of your prospects before you commit to an appeal, particularly where the offending is serious or there is a pattern of entries.

Your driving record, all of it

The court will have your full driving record: how long you have held a licence, what is on it, and how recent the entries are.

Read your record before you decide what to put forward. Get advice about what can be said about repeated entries of the same kind.

Obtain your driving record early and read it before the day. Raise anything on it in your own material rather than leaving it to come up at the hearing.

Disclose anything pending. A charge still to be heard should be raised in your material.

What the suspension would actually do

Set out what the licence is used for in your life. Describe the work, the driving it involves and what would change without it.

Set out the specifics and document them: what the work is, what the driving is for, what hours it covers, and what happens to the job without it. If family members depend on your driving, set out who, for what, and what the alternative arrangement would be. Our guide to driving for work sets out what to gather.

Include consequences to other people who depend on you. A child who has to be taken to treatment, an elderly parent with no other transport, an employee whose job depends on the business continuing: gather evidence of each that applies.

Distance and available transport matter too, and they are easy to evidence. What actually runs between where you live and where you work, and at what hours, is a question with a checkable answer.

Arguments that are not decided on this appeal

Some arguments are directed at matters that are not decided on this appeal.

That you did not know about the points. Demerit balances can be checked at any time through Service NSW.
That the fine was already punishment enough. The suspension is a licensing consequence rather than a second penalty, and a court hearing the appeal is not revisiting the fine.
That the camera or the officer was wrong. The offence itself is not reopened on an appeal against the licence decision. Get advice about which issues can be raised in your particular appeal.
That losing the licence would be inconvenient. Set out the specific consequences and the evidence for each of them.
That other people do worse things. The appeal is decided on your own circumstances.
That you will lose your job. Ask your employer to put the position in writing, and see our guide to driving for work.

None of this means the appeal should not be run. Get advice about which issues can be raised in your particular appeal.

How you present on the day

Prepare your documents and be ready to answer questions about your circumstances.

Attend, arrive on time, and answer the questions you are asked, including ones that do not assist you.

Do not drive to court unless you have confirmed that you may.

What happens

Obtain and read your full driving record

Before anything is filed. What is on it affects what can be argued.

Decide what you are actually asking for

Decide what to ask the court for, with advice, and gather the material that supports it.

Document the consequences in writing

Legal Aid NSW lists character references, letters from your employer, medical evidence and information about public transport among the material to prepare. Gather what applies to your circumstances.

Deal with the weak points yourself

Raise the difficult parts of the record in your own material rather than leaving them to be discovered.

Attend, and answer the questions you are asked

Including the unhelpful ones. Give an accurate account of what happened.

Common questions

What are my chances?

No one can guarantee an outcome in your case. What can be given is an assessment of the strengths and weaknesses of your application, based on your record, the offending and the material you can produce. Get that before you decide whether to appeal.

Can the magistrate make it shorter instead of removing it?

That depends on the decision being appealed. On a demerit point suspension appeal the court may vary the decision by substituting a shorter period, as well as dismissing or allowing the appeal. On an appeal against a police immediate suspension, section 268(2) and (5)(a) of the Road Transport Act 2013 (NSW) allow the court to act only where exceptional circumstances are established. Ask for advice about which applies to you.

Does having a clean record before this help?

A clean record supports the argument that the current matter is an exception rather than a pattern. It is not decisive by itself. Put it forward with the record itself rather than mentioning it in passing.

Will the magistrate want to hear from me?

You may be asked about your circumstances. Be ready to answer plainly and briefly, and get advice about what you are likely to be asked.

What if I have a charge that has not been heard yet?

Disclose it. Raise a pending matter in your own material rather than leaving it to emerge from the record. Get advice about how to deal with it; concealing it is not an option.

Is it worth appealing if my record is bad?

A poor record does not close off an appeal. It changes what is realistic to seek, and the evidence of consequence still matters. Ask for an assessment of your prospects before you spend anything on it.

Before you decide to appeal

An honest view of your prospects is worth having before you spend anything. Tell us what your notice is called and the date on it, and we will explain how to provide your driving record and other documents securely once the first checks are done. That includes telling you when we think an appeal should not be run.