Appealing Police Licence Suspensions (NSW)
The decision of a police officer to issue an Immediate Suspension Notice is an appealable decision under section 266 of the Road Transport Act. This means that all Immediate Suspension Notices issued by police are, in theory, appealable. This article deals with appealing police licence suspensions in New South Wales.
When can police issue licence suspensions?
Police officers are empowered under section 224 of the Road Transport Act to issue an immediate suspension notice under the following circumstances.
- If it appears to the officer the driver has committed an offence of exceeding the speed limit by more than 45 kilometres an hour;
- If it appears to the officer the driver has committed an offence of exceeding the speed limit by more than 30kilometres an hour, where the driver is the holder of a Provisional or Learner licence;
- If it appears to the officer the driver has committed an offence of drink-driving offence as a novice, special or low range category (first offence);
- If the driver is charged with an offence of mid or high-range drink-driving;
- If it appears to the officer the driver has committed an offence driving as a Learner licence holder driving unaccompanied by a supervising driver;
- Where the driver is charged with an offence caused by a motor vehicle comprising of:
- Where the driver is charged with an offence of driving (or attempting to drive) under the influence of alcohol or any other drug;
- Where the driver is charged with an offence of promoting or taking part in races, attempts on speed records and other speed trials;
- Where the driver is charged with an offence of aggravated burn out;
- Where the driver is charged with offence of failing to provide samples as appropriate under 16(1)(b), 17(1) and (a1) or (2) or 18(1)(a), (b) or (e) of Schedule 3 of the Road Transport Act.
A notice of suspension by a police officer for the above offences must be issued within 48 hours of the driver being stopped by police and will remain in force either for a fixed period of time or until the court otherwise deals with the matter depending on the offence for which the immediate suspension is issued.
It is important to note that whilst in theory all of the above decision are appealable under the legislation, the appropriateness of filing an appeal will vary case to case.
Licence Appeals vs Court Elections
It is important to be aware of the difference between a licence appeal and a court election.
A licence appeal is a civil appeal to the Local Court, to review the police decision to impose an immediate licence suspension. It does not involve a finding of liability (or a criminal conviction) in committing the offence and is limited to reviewing the decision to impose a suspension.
The court’s powers in relation to a Licence Appeal are to essentially re-make the decision to impose a suspension, exercising only those powers that were available to the original decision-maker (the police) at the time.
This means in determining an application the court may only:
- set aside the decision;
- vary the suspension;
- dismiss the appeal; or
- make such other order as seems just to the court in the circumstances.
Where an application to appeal an immediate suspension is before the court, the magistrate is prohibited from varying or setting aside the suspension unless there are exceptional circumstances. Exceptional circumstances can be one singular factor or a combination of factors. Additionally, when making the decision the magistrate is legislatively barred from taking into account the circumstances of the offence.
When determining whether exceptional circumstances exist the court is to take into account the following.
- The applicant’s need for a licence.
- The potential danger to the community if an order is made.
- Any other matter the Local Court considers to be relevant.
Further, an appeal against an immediate licence suspension does not stay (put on hold) the operation of the suspension, which will remain in force until otherwise determined by the court on the date of the appeal.
A court election is an election to have the traffic offence decided by a court (in the criminal jurisdiction) and requires the person electing to enter a plea of guilty or not guilty. Any conviction imposed by the court following a court election is recorded as a criminal conviction.
However, demerit points are not to be incurred against a licence in circumstances where an infringement is court-elected and the matter is dealt with by a non-conviction order, as provided under the Crimes (Sentencing Procedure) Act.
Court elections are often utilised by persons wishing to avoid a licence suspension as a conviction will result in the individual their exceeding demerit point limit and/or breaching their good behaviour licence. However, individuals should be cautious of making an election simply to avoid the imposition of demerit points. Non-conviction orders granted simply to avoid the operation of other legislative provisions (such as the demerit point system) are considered by the courts to be improper and impermissible.
Police Suspensions – Time Limit For Lodging an Appeal
An appeal must be lodged within 28 days from the date of issue of the suspension. If an application is not lodged in time, the court cannot hear the appeal and the suspension must be served.
If you have a traffic matter or are concerned about receiving an immediate suspension notice, please contact Armstrong Legal.