NSW prosecutor costs beyond reason

By: Robert Bell*, Photography by: Greg Bush


OPINION: In a bias against the truck industry, NSW prosecutors may seek to recover their costs against you in court

NSW prosecutor costs beyond reason
The NSW authorities won't miss you, even when you win

 

The cost of living is something that affects everyone in society today, whether you are employed or operating a business. Wages and salaries are going down in real terms while the price of everything increases. Truck drivers and operators know only too well how their income has stagnated in the last decade or so, yet the cost of living and eating out on the road can run into the hundreds of dollars per week.

You also know that fines and penalties for heavy vehicle offences are excessive, often much more than the equivalent fine for a light vehicle, and the cost of legal representation to fight them can be prohibitive. This is real barrier to justice. Often this means that unjust fines are paid on a convenience basis – but we strongly discourage this.

We see on a daily basis how these penalties become a virtual time bomb sitting in your traffic history; a time bomb that is never diffused and will be used against you for the rest of your career.

To provide access to justice, Highway Advocates Pty Ltd have introduced instalment plans for our fees, allowing the cost of legal representation to be spread over a period of time, easing the stress on the household budget when you need every cent you can find. This allows for advocacy of the highest quality and the opportunity to have your say in court and to get a fair decision.

Unjust costs

This brings us to another area of legal significance – the cost of being prosecuted in the Court system. In New South Wales, for instance, the two main prosecuting authorities for heavy vehicles are Transport for NSW and the NSW Police Force. The NSW Judicial Bench Books provide the following information regarding costs in criminal matters:

 ‘"As a matter of policy, the Police Service, and Commonwealth and State Directors of Public Prosecution do not ordinarily apply for professional costs against unsuccessful defendants, although witness expenses and court costs may be sought. Private informants, and bodies such as councils, the Royal Society for the Prevention of Cruelty to Animals NSW and the Roads and Traffic Authority, however, will usually seek professional costs against unsuccessful defendants."


RELATED ARTICLE: Penalities against truck drivers are unbalanced


The Bench Books also state: "The amount of costs must be just and reasonable."

So, the Crown, in the form of the Police and the Director of Public Prosecutions, does not seek costs in criminal proceedings, yet other bodies and private prosecutors do? If you are convicted of murder and you go through a jury trial that can last for months, you do not have to pay the prosecution costs, which can be considerable.

However, if you are a truck driver – and Highway Advocates secure a dismissal or low penalty based on circumstances and mitigation – the opposing solicitor will often seek costs for simply turning up and asking for the maximum penalty. This means that, even if the matter is dismissed, truck drivers and operators can still be left paying.

These costs start from about $100 through to tens of thousands of dollars in more complex matters.

Prejudicial punishment

Highway Advocates Pty Ltd believe it is unjust to make a truck driver or operator ‘pay for their own prosecution’ when these bodies have vast resources and are simply doing their job.

This is further compounded by the fact that legislation allows Revenue NSW to pursue and enforce these costs as if they were a fine or penalty awarded by the Court. In an often-cited High Court case, Latoudis v Casey, Mason CJ said at 543:

"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not to be awarded by way of punishment of the unsuccessful party."

The Fines Act in NSW also provides at section 6 that a Court is required to consider the financial and other relevant circumstances of an offender before imposing a penalty. Highway Advocates strongly believe that costs should be considered in the same fashion. Truck drivers and operators should not have to pay for their prosecutions. That is what taxes pay for, so we are told.

Representing yourself in these matters carries many hidden risks, and the stakes are high, with maximum penalties under the Heavy Vehicle National Law increasing in line with CPI every year. In some circumstances, the maximum penalty for a mass breach for an owner driver can be well over $100,000. The maximum penalty for a critical fatigue breach for an individual is over $17,000. The prosecution often seek the maximum sentence, so it is vitally important that you have the best legal advocacy from a legal practice that knows what you need to know.

Give us a call 24/7 on 0491 263 602 for free initial advice. It might just save you a packet.

 

*ROBERT BELL, a former truck driver and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates Pty Ltd. Contact Highway Advocates Pty Ltd on robert.bell@highwayadvocates.com.au
or phone 0491 263 602.

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