It’s very common for people to appear before Adelaide and South Australian Magistrates Courts seeking to have their demerit points reduced for traffic offences. Many of these people will appear without a lawyer and generally admit to the offending but ask the presiding Magistrate to exercise their power to reduce the amount of demerit points that apply to a given offence or offences. This is problematic due to legislation in South Australia that severely limit the powers of a Magistrate to vary the applicable demerit points for a particular offence.
One very common reason given is that the application of the standard number of demerit points would result in a person losing their South Australian Driver’s License due to disqualification that would flow from incurring too many demerit points. This argument, so it generally goes, is that the person requires their license for work or to pick children up from school. This is known legally as a ‘hardship application’. Magistrates are barred by the Motor Vehicles Act 1959 from taking demerit points into consideration when determining a penalty. Further, the only power that a Magistrate has to alter or vary the amount of demerit points that apply to an offence is where there is a finding that the offence was ‘trifling’ or some other proper cause. This will require the person making the application to give evidence as their reasons, sworn from the witness box.
Trifling refers to an offence that, while technically committed, is so small, insignificant or otherwise subject to some special feature or circumstance that a magistrate could properly find it inappropriate to apply the requisite (or any) penalty. Importantly, the ‘circumstances’ of the offence must relate to the offending itself. The consequences of incurring demerit points have been determined by South Australian Courts not to be ‘proper cause’ to interfere with the imposition of demerit points alone.
You cannot get a demerit point reduction for the following reasons:
- Speeding because you were late to an important job;
- Because you need your license for work;
- Because you need to pick your children up from school;
- Where you were sick with a cold and needed to pick up aspirin;
- Where you will lose your job if you lose your license; or
- Any ground that relates to your personal convenience.
A driving offence may be trifling where:
- It occurred for a very short period of time (i.e. Undoing and readjusting a seatbelt at traffic lights)
- Circumstances where an offence may stem from a momentary indiscretion; AND
- There was minimal risk or embarrassment to other road users; AND
- The offending was so slight so as not to warrant any punishment.
Should I make an application?
Licenses can be hugely important; particularly for people who rely on their drivers license for work or to pick up their children or who live in areas that are not properly serviced by public transport. If you think you may have a defence to a traffic offense, or that it may be trifling, then you should discuss your situation with a criminal defence lawyer. It’s also important to discuss alternatives such as an application to enter into a good behaviour bond or a further appeal against disqualification. It’s also important to note that where you have received an instant disqualification as a result of drink driving or other more serious traffic offending, you can apply to the Magistrates Court to reinstate your license while your matter moves through court. In this instance you will generally need to show that you have a reasonable defence with some prospect of success.
If you require advice for any criminal law or traffic matter, give Culshaw Miller Criminal Lawyers a call today on 08 8464 0033. For urgent matters, you can call Tom Cuthbertson on 040 021 9889 or 08 8312 4520.