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When it comes to parking your vehicle there are certain parking restrictions which must be followed. These are generally the following. You cannot park your vehicle:
A motorist cannot negligently or wilfully obstruct, hinder or prevent the free passage of traffic.
A motorist cannot leave the keys in the car upon a public road while the car is unattended by the motorist or driver.
The Police, a Parking Patrol Officer (Special Constables employed by the Commissioner of Police) or a Council Ordinance Inspector may issue a parking ticket requiring payment of a fine within twenty one (21) days. A ticket may be issued personally, posted or left on or attached to the offending vehicle.
It is an offence to negligently or wilfully obstruct, hinder or prevent the free passage of traffic. It is also an offence to park a vehicle in such a position as to obstruct traffic or unreasonably cause inconvenience ie. blocking somebody's driveway. If a driveway is blocked you may report the matter to the Police. The Police may then issue a ticket with respect to the offending vehicle but they have no power to remove the vehicle.
The Councils have broad powers to deal with abandoned vehicles. If the vehicle is unregistered and worth less than $250.00, Council may tow it away and destroy it. If this is not the case, the Council may ask the Police for the name and address of the last registered owner and give that owner fourteen (14) days notice to remove it. If the vehicle is not then removed within fourteen (14) days it may be impounded and sold at public auction.
OFF STREET PARKING
Some Councils have reserved street parking areas for local residents. In these areas local residents can obtain a sticker to attach to their vehicle, indicating their right to unrestricted parking. If you wish for a Residential Parking Scheme to be set up in your area or your street to be included in an existing Scheme you should contact the Council and suggest that a Residential Parking Scheme be set up. It is advised to join with other residents and make a joint submission to Council.
DISPUTING A TICKET
If you are issued with a Parking Infringement Notice and you believe that no parking offence was committed you have the option of contesting the matter in the Local Court.
However it is important to note that if you choose this option you must bear in mind that such a challenge can be expensive, time consuming and may expose you to higher penalties and Court costs if unsuccessful.
It is advisable to obtain legal advice from a Chamber Magistrate or a Solicitor before making this decision.
If the vehicle is stolen and the parking offence occurred while the vehicle was stolen or illegally used, and if the theft or illegal use has been reported to Police then it may be a very good reason to contest the ticket or parking infringement. In this case a telephone call to the Infringement Processing Bureau is usually enough to end the matter.
If you have not made a report to Police then you will have to set out the reasons for not making a Police report and the circumstances of the theft or illegal use in a Statutory Declaration.
If someone else was in charge of the vehicle when it received a ticket, and you the owner do not wish to take responsibility for paying the fine, ie. that the person in charge be held responsible for paying the fine, you should then send a Statutory Declaration to the Director, Infringement Processing Bureau, setting out the name and address of the person and the circumstances in which they came to be in charge of the vehicle. If the Infringement Processing Bureau rejects your explanation, then you may challenge the parking ticket in the Local Court.
CONTESTING THE TICKET IN THE LOCAL COURT
Any person aggrieved by a Parking Infringement Notice may have the matter heard in a Local Court constituted by a Magistrate.
Time limits apply in notifying of your intention to dispute the ticket. You should lodge your notice by completing the reverse of the ticket no later than 21 days after the date of the ticket.
The Clerk of the Local Court will give notice of the time and place of the Hearing of any such appeal to both yourself and the authority responsible for the issuing of the Infringement Notice. A Magistrate will hear and determine your appeal. He may confirm (with or without variation) or disallow the decision appealed against, or make such other Order in the circumstances as to the Court seems just.
If the Magistrate chooses to vary the Infringement Notice he may only exercise such powers as the authority could have exercised under the Motor Traffic Act or the Regulations when making that decision.
The decision of a Local Court in respect to an appeal shall be final and binding on both you and the relevant authority.
At the Hearing you would be expected to outline your case as to why you should not have been issued with the Infringement Notice. This requires you to bring into Court evidence which will support your argument. This evidence can include oral testimony by yourself or any witnesses which you may require. If you choose to have witnesses to testify at the Hearing you must ensure that they are present at the Court on that day, because they will need to be cross examined by the Prosecution.
In most circumstances you will introduce most of your evidence by way of your own oral testimony. It is important to note in this regard that the evidence you give to the Court, ie. oral testimony, will and should be evidence which goes to negate the elements of the Infringement Notice.
Other evidence could include such things as medical reports, Doctors certificates, photographs or any other object or record which could show that you are innocent.
Parking offences are generally offences of strict liability, which means that you do not have to intend to commit the offence or even know that it was an offence. If you parked in a "No Stopping" zone just because you did not see the sign is no defence. A defence would be that you did not stop.
One can see that serious consideration should be given to the facts before electing to contest a ticket.
Some other defences would include:
The defence of necessity may be raised as a defence where the act which led to the Parking Infringement was necessary to avert serious danger, and the action taken was in proportion to the danger which you were trying to avert. It must be noted that this defence is approached by the Court with considerable caution.
Mistake of fact:
It is a defence that the accused honestly and reasonably but mistakenly believed in a set of facts which if existing would have rendered his or her conduct innocent. The defence applies where if the facts as believed by the accused were true the accused would have committed no infringement and not some other infringement than the one alleged.
Although it is described as a defence, once there is evidence upon which such a defence is raised the Prosecution must prove that the accused did not hold the belief honestly or that it was not reasonable to hold the belief in all the circumstances.
It is not always the case that you elect to have a matter dealt with by a Magistrate because you have a defence to the ticket. Many people take a matter before the Court to provide an explanation and have the amount on the ticket reduced.
You should be aware that a parking ticket does not appear on your personal traffic record as would a speeding ticket. The ticket attaches to the vehicle rather than the person driving. The registered owner should therefore be aware of any tickets incurred or outstanding as unpaid tickets that will attract enforcement from the State Debt Recovery Office.
This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.
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