Can your driving history be submitted into evidence to be used against you?

Tuesday , 10, November 2015 2 Comments


If you have challenged a traffic infringement in Court you will notice the Police will include a copy of your driving history with the brief of Information.

This is immediately unfair and prejudicial.  The Magistrate in considering the case will consider your track record and driving history.

WHAT THEY DON’T TELL YOU

That Section 91 of the Evidence Act 2008 (Vic) says this should not be entered into evidence, but excluded.  As past judgments and convictions would be prejudicial and cause bias.  In fact the only time they may be considered is after conviction for sentencing purposes.

Inadmissible Evidence

In fact to submit it into evidence in Court they need your permission,  the Road Safety Act 1986 (Vic) Section 90 on the issue of admissibility of driving history states any such document may not be tendered in evidence “without the consent of the accused” if the accused is present at the hearing of the information.

The problem is they don’t ask your permission, it’s included in the brief and considered right away against you on the presumption of guilt and how it would be used for sentencing purposes.

So make sure you OBJECT to this evidence being included as the only issue for the Court to deal with should be whether the evidence supports the allegation, not if you had a speeding fine years ago.

In fact if you find the Magistrate particularly aggressive and  biased against you, then you have the option to move for him to be inhibited from further proceedings, in which case the proceeding will be adjourned and a new Magistrate will be appointed to hear the case.

“Present authority supports the proposition that an application for disqualification can be made without the filing of a formal motion (Barton v Walker [1979] 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539), although there have been instances where a motion has been presented.”

“Such authority also supports the view that such an application should be determined by the judge whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; and Wentworth v Graham [2003] NSWCA 240.”

A refusal by a judge to accede to an application for disqualification can be relied upon as a ground of appeal in relation to the substantive judgment. However, the conventional view has formerly been that no appeal lies from the rejection of a refusal application as such although a litigant could usually find an interlocutory order upon which to base an appeal: Barton v Walker and Barakat v Goritsas [2012] NSWCA 8 at [10]¹.

Failure of the Magistrate to seek your consent or him admitting the evidence would be grounds for appeal.

“The appellant also appealed against sentence, on the basis that his traffic history was produced in Court before the Magistrate, which he submitted was contrary to the Road Safety Act, s 90(4). This appears to be reference to s 90 of the Road Safety Act 1986 of Victoria, which does provide that a document alleging prior convictions served with a summons may not be tendered in evidence without the consent of the accused if the accused is present at the hearing of the information” Crabbe v Queensland Police Service [2013] QDC 122 (13 May 2013) at [28]

 

Footnotes

  1. Disqualification for bias, http://www.judcom.nsw.gov.au/publications/benchbks/civil/disqualification_for_bias.html accessed 10/11/2015  at 6.15pm.

 



2 thoughts on “ : Can your driving history be submitted into evidence to be used against you?”
  • Karen Harris says:

    I am wondering if this is also applicable to Qld, as it states that this is using Victorian rules, can we have some confirmation as to whether this would also apply in Qld, if so I will use this for my case. They have entered it in the Q9 and also made comment that I knew the system or rules.

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