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“Appealing an infringement” is one of the most inaccurate and misleading terms heard by police and traffic lawyers. Irate drivers often yell at police “I’m going to appeal this fine!” just as often as traffic lawyers take calls from those who “want to appeal a ticket”. Unfortunately, it is not an appeal. There are a number of ways an infringement can be dealt with and the outcomes vary greatly. Making a poorly informed choice when disputing an infringement can leave you facing a higher penalty, loss of licence and a criminal conviction. When you receive an infringement notice there are three ways in which you can deal with the infringement. You can either pay the infringement, request a review of the infringement, or elect to have the matter determined by a court.

Paying the infringement notice

Although it is commonly called a fine or an infringement the correct term is a penalty notice. A penalty notice is a notice issued under a statutory provision which alleges a person has committed an offence. It sets out the nature of the allegation and lists an amount of money which needs to be paid by a certain time if the person does not want the matter determined by a court. Payment of a penalty notice is not regarded as an admission that you have committed the offence. It doesn’t have any effect on your liability for any civil claim either. Put simply, if you pay the penalty notice that is the end of the matter.

Requesting a review of an infringement notice

It’s still not legally an “appeal” but if you don’t agree with an infringement or penalty notice you can request a review. This can be done online. Following a review, the infringement may be upheld, cancelled, or dealt with as a caution. There are time limits in requesting a review and it is always best to attach as much supporting information as possible. There are some offences which are not eligible to be dealt with as a caution. If you are considering requesting a review you should read our guide on requesting a review of a penalty notice or infringement. 

Electing to have the matter determined by a court

If you elect to go to court for an infringement or penalty notice in NSW you are asking the court to determine your guilt or innocence. Once you make this election a court attendance notice is generated and filed in accordance with the Criminal Procedure Act. Once court proceedings have commenced you can’t change your mind and pay the infringement instead. You will need to go to court and enter a plea of either guilty or not guilty.

A common approach is to “plead guilty with an explanation”. The court will listen to your explanation and determine an appropriate penalty. Your explanation needs to be an admission that you committed the offence. If you try to explain that you didn’t commit the offence the court cannot accept your plea of guilty and will set the matter down for a hearing. Similarly, if you plead not guilty you’ll be allocated a hearing date. The police will present their evidence and you have the opportunity to present evidence as well.

The risks of electing to have a matter determined by a court

Criminal record:

If you plead guilty, or are found guilty following a hearing, the court may record a conviction. This means that you will have a criminal record. The only way this can be avoided if the court decides not to record a conviction or you successfully defend the matter.

Demerit points:

If you are convicted of an offence that carries demerit points the points will be deducted from your licence. A court cannot prevent this from happening. The only way to avoid the points being deducted is if the court does not record a conviction or the matter is dismissed.

Increased penalties:

Courts have the option to impose a much higher penalty than the amount on the actual fine or infringement. Additionally, once your matter is determined by a court you may also have to pay court costs.

Disqualification:

Some offences carry automatic periods of disqualification if they are determined by a court. If you pay the fine there may be a period of suspension which can be appealed. However, if you are convicted by a court the period of disqualification cannot be appealed.

Common Examples

The most common case traffic lawyers see is when someone elects to take an infringement notice to court because they’re about to exceed their demerit point limit and don’t want to lose their licence.

Unless you have a very good defence it is generally better to pay the fine. If you have the matter determined by a court you risk much harsher penalties. You can plead guilty and ask the court not to record a conviction however this is very difficult. One of the factors a court will consider is your traffic record. If you have an unrestricted licence and are about to exceed 13 points your record isn’t likely to assist you. And a P1 or P2 driver hasn’t been driving long enough to have a long clean record to fall back on.

If you have a full licence you can pay the fine and then elect to have a good behaviour licence for 12 months. If you’re a P1 or P2 licence holder you can pay the fine and then appeal the licence suspension when the suspension notice arrives. Appealing a licence suspension is far more likely to be successful than asking a court to not record a conviction.