The Law Handbook 2024

Chapter 6.8: Driving offences 651 magistrates are nowprohibited frommaking custodial orders and other specified penalties in respect of defendants in their absence (see s 87 CP Act). Time limits on summonses All traffic offences are summary offences, except for culpable driving and failing to stop or render assistance after an accident where a person is killed or suffers serious injury. Summonses for summary offences must be lodged with the court within 12 months of the offence occurring (s 7 CP Act). Notice to Appear The Notice to Appear is increasingly used for simple traffic offences and is usually accompanied by the Preliminary Brief, which should contain details of the charges and a summary of the offence and any priors (ss 24, 37 CP Act). Similar to the summons procedure, a defendant’s failure to attend court can result in an ex parte hearing or the hearing being adjourned and a warrant being issued for the defendant’s arrest. Where the defendant requires further information about the charges against them, they can ask the informant for a full brief of evidence. This usually requires a summary case conference (a meeting between the informant and the defendant or their legal representative) to have occurred (s 39 CP Act). Arrest and bail Police officers apprehending drivers for traffic offences can formally arrest drivers and release them from custody only when they enter into a bail undertaking in which they agree to appear at court on a later date. The police may do this where: 1 there is some doubt about the driver’s identity or current or future address; 2 the driver is to be charged with a very serious offence (e.g. culpable driving or drink-driving); and 3 the driver gives the police trouble (e.g. refuses the breathalyser test; or the driver has a very high BAC and seems incapable of looking after themselves). In all cases, a driver who is arrested and bailed will receive a copy of the notice of bail undertaking that states at which court the driver must appear and on what date, and another document called a charge (or ‘information’), which states the offences alleged. If a driver fails to attend a court hearing as required by their notice of bail undertaking, they may be charged with an offence under the Bail Act 1977 (Vic) (see ‘Duty of person bailed’ in Chapter 3.6: How bail works). It is also possible for the traffic charge against the driver to be kept alive indefinitely by the issue of a warrant for the driver’s arrest. The right to appeal VicRoads Drivers whose licences have been cancelled, suspended or varied by VicRoads can appeal the decision in the Magistrates’ Court (s 26(1) Road Safety Act), but the court’s decision is final (s 26(4)). Appeals to the Magistrates’ Court about VicRoads’ demerit points decisions are limited to matters about the miscalculation of points (s 46H). Courts Anyone disqualified from obtaining a licence or permit, or whose licence or permit is cancelled, suspended or varied by a Magistrates’ Court order, may appeal to the County Court against this decision (s 29(1)). This appeal must be filed at the court within 28 days of the court order being made. A person is not allowed to drive in the period between filing an appeal and the appeal hearing, unless the court grants permission to do so (s 29(2) Road Safety Act). Drivers considering an appeal should bear in mind that a more severe penalty may be imposed by a County Court judge. Common driving offences Speeding offences Schedule 5 of the Road Safety Act (s 28(1)(a)) outlines the penalties for excessive speeding. If a driver is found guilty of speeding 25 kph or more over the speed limit, their licence is automatically disqualified for a minimum period. The court has discretion to increase the mandatory minimum disqualification period stipulated in the Road Safety Act (s 28). The penalty for speeding increases, depending on the speed limit.