Question about postponing a court date

Franktoh · 17-01-2012 08:22PM #1

Hi there,

I'm looking for some advice. I'll try and keep this a short and understandable as possible.

Last summer, I was driving on a 100kmh road and was caught speeding, doing 121kmh. I received a fixed penalty notice a week later in the post.
I decided to appeal it. My appeal was based on the fact that there two lanes going up a hill on a primary road, a slow lane and a faster climbing lane. There was a female driver in the climbing lane and she whouldn't move out of the way. She was doing approx 95kmh. After 3 or 4 minutes I went into the slow lane and passed her out. I accelerated and was caught by a garda at the top of the hill shortly after passing her out.
I appealed the penalty and sent a letter to the Garda in question.
I didn't hear back from the Garda and presumed that my appeal had been ignored.
I went to pay €80 fine at the Post Office, only to find out that it had increased to €120, because it went over the 28 days.
I was quite annoyed so I didn't pay the €120 and went home to phone the Garda in question. The Garda wasn't on duty but his colleague told me that she would get him to call me back. A week passed and I didn't receive any call.
I then sent another letter to the Superintendent of the Garda Station, this time by registered post, receiving a response saying that they hadn't received my original correspondence. He said that they would enquire further and revert in due course.
The letter was dated 24th Aug but was not posted until 31st Aug. During the time I was waiting for a response, the 56 day period, within which I could pay the €120 fine elapsed. I let this elapse because I was waiting for a response from the Super.
I received another letter approx 1 week later indicating that they still couldn't find the original letter I sent and because I hadn't paid the €120 fine then I should expect a summons, which duly arrived a week or so later.
I have a court appearance tomorrow morning starting at 10.30am.
I spoke with a few people regarding this. The local guard thinks I have a good case because my original letter wasn't responded to and on the other hand the local solicitor doesn't think my argument stands up too well.
However, over Christmas I had an accident playing sport and damaged my knee. This evening about 5pm I received a call from the consultant's secretary saying that he can operate on my knee tomorrow and if I can't make it then it'll be mid February before he can operate.

Therefore the operation is clashing with the court date. I really want to go for the operation because if I don't then it will inhibit my work, as I'm self employed. At the same time I really would like to appear in court to explain my case to the judge. So I'm basically looking for some advice.

Is it possible to put off my court appearance for another date? There is no problem getting a letter from the consultant explaining that I only got called at the last minute. Should I try and approach the Garda and/or Clerk in the morning to see if anything can be done?

I would welcome any advice.

Marquis de carabas · 17-01-2012 08:34PM

Your only real option here is to contact a solicitor to represent you in court and explain you couldn't make it and seek an adjournment. You could talk to the guard and explain it to him but he's not obliged to help you here. He might but it'll mean he has to go to court another day so it's not really in his best interest.

I understand you let it go this far because you were waiting for a response from the Gardai but Im a little confused on what your contesting it over. The offence if i understand it is speeding but you seem to accept that along with admitting you committed another offence of undertaking.

I know you state the other driver was below the speed limit but you have no real evidence of this. I'd be doubtful of how well this would look.

MagicSean · 17-01-2012 08:38PM

Some things i don't understand

First of all, your challenge to the original ticket is ridiculous. You can't break the speed limit and undertake because someone in front of you is going slow. What was your legal argument here?

If you have a solicitor dealing with this why can he not appear for you tomorrow?

How can you approach the clerk or the Garda in the morning if you are in hospital?

diceyreilly · 17-01-2012 08:45PM

If you have a solicitor you don't have to go. He can do everything for you it's not a crim matter.
If not I'm sure it won't be the end of the world ring the copper tell him you have to go to hospital.

For what it's worth I don't think you will win either.

Franktoh · 17-01-2012 08:48PM

MagicSean wrote: »

Some things i don't understand

First of all, your challenge to the original ticket is ridiculous. You can't break the speed limit and undertake because someone in front of you is going slow. What was your legal argument here?

If you have a solicitor dealing with this why can he not appear for you tomorrow?

How can you approach the clerk or the Garda in the morning if you are in hospital?

Thanks for the reply.

Ok, maybe my argument for the original appeal isn't great. I guess I'm somewhat stubborn but I decided to appeal anyway. I will be emphasising the fact that I didn't receive a response to my original appeal OR a phone call back from the Garda after trying to make contact.

I spoke with the solicitor in the past few days and he basically said that he couldn't guarantee getting me off. The court is in another district, approx 50 miles from where the solicitor is based. He told me himself that as long as I turn up myself and explain the situation to the judge then that would be as effective as the solicitor himself.

I have to be in hospital at 1pm in Waterford. The court case is at 10.30am in a different county.

MagicSean · 17-01-2012 08:51PM

Franktoh wrote: »

Thanks for the reply.

Ok, maybe my argument for the original appeal isn't great. I guess I'm somewhat stubborn but I decided to appeal anyway. I will be emphasising the fact that I didn't receive a response to my original appeal OR a phone call back from the Garda after trying to make contact.

I spoke with the solicitor in the past few days and he basically said that he couldn't guarantee getting me off. The court is in another district, approx 50 miles from where the solicitor is based. He told me himself that as long as I turn up myself and explain the situation to the judge then that would be as effective as the solicitor himself.

I have to be in hospital at 1pm in Waterford. The court case is at 10.30am in a different county.

The Gardaí aren't under any obligation to listen to an appeal so i can't see how this argument would accomplish anything other than getting the penalty reduced to the orignal fine. You can approach the court register and explain the situation. She might call your case early for you or you can hand her a letter for the judge.

Franktoh · 17-01-2012 08:57PM

MagicSean wrote: »

The Gardaí aren't under any obligation to listen to an appeal so i can't see how this argument would accomplish anything other than getting the penalty reduced to the orignal fine. You can approach the court register and explain the situation. She might call your case early for you or you can hand her a letter for the judge.

I understand. I have no problem paying the €80 and accepting 2 points ifmy appeal was responded to or if the Garda had the courtesy to call me back. But the fact that neither happened is why I have become a little stubborn.

I guess I will approach the Garda first thing in the morning and to see if anything can be done. If not then I will hand a letter to the Clerk explaining my argument.

Franktoh · 17-01-2012 08:58PM

diceyreilly wrote: »

If you have a solicitor you don't have to go. He can do everything for you it's not a crim matter.
If not I'm sure it won't be the end of the world ring the copper tell him you have to go to hospital.

For what it's worth I don't think you will win either.

Thanks for the advice.

Franktoh · 17-01-2012 09:01PM

Marquis de carabas wrote: »

Your only real option here is to contact a solicitor to represent you in court and explain you couldn't make it and seek an adjournment. You could talk to the guard and explain it to him but he's not obliged to help you here. He might but it'll mean he has to go to court another day so it's not really in his best interest.

I understand you let it go this far because you were waiting for a response from the Gardai but Im a little confused on what your contesting it over. The offence if i understand it is speeding but you seem to accept that along with admitting you committed another offence of undertaking.

I know you state the other driver was below the speed limit but you have no real evidence of this. I'd be doubtful of how well this would look.

I understand what you are saying and I do appreciate the advice. I'll write a letter for the Clerk and try to explain my argument as best I can. I'll also approach the Garda in the morning and see what he says. I will let you know how I get on.

Marquis de carabas · 17-01-2012 09:20PM

Franktoh wrote: »

I understand what you are saying and I do appreciate the advice. I'll write a letter for the Clerk and try to explain my argument as best I can. I'll also approach the Garda in the morning and see what he says. I will let you know how I get on.

If you intend on pleading guilty then you might be as well telling the Guard that. For a summary offence under the road traffic act a judge will often convict if a person fails to appear. If the guard explains on your behalf he might just impose the original fine.

If you intend on fighting the case a solicitor would be the way to go.

I know you feel you need to explain yourself but you can't plead guilty and fight the issue at the same time and a judge will make you choose one or the other before the case begins.

Franktoh · 17-01-2012 09:37PM

Marquis de carabas wrote: »

If you intend on pleading guilty then you might be as well telling the Guard that. For a summary offence under the road traffic act a judge will often convict if a person fails to appear. If the guard explains on your behalf he might just impose the original fine.

If you intend on fighting the case a solicitor would be the way to go.

I know you feel you need to explain yourself but you can't plead guilty and fight the issue at the same time and a judge will make you choose one or the other before the case begins.

Thank you for the advice. I didn't realise that. Probably pleading guilty is my best option and writing a letter to try and get it restored to the original penalty.

Marcusm · 17-01-2012 09:54PM

Franktoh wrote: »

I understand. I have no problem paying the €80 and accepting 2 points ifmy appeal was responded to or if the Garda had the courtesy to call me back. But the fact that neither happened is why I have become a little stubborn.

I guess I will approach the Garda first thing in the morning and to see if anything can be done. If not then I will hand a letter to the Clerk explaining my argument.

Maybe I'm being harsh here but the whole point of the fixed penalty system is to free up court time for more serious matters; the penalty in points and cash being less than would be applied in court reflecting an effective discount for a speedy application of the law. I would assume that the Gardai would have regarded your letter as a renuncation of your right to accept a fixed penalty hence the subsequent summons.

In circumstances such as these where you effectively accept that you are guilty, why should you not suffer the greater penalty? Just checked, it seems the court penalty is 4 points and up to EUR800.

whippet · 17-01-2012 10:04PM

Im putting my neck on the line here as a totally unqualified person ... But should you disagree with a guards interpretation of the law or a charge made by a guard isn't the only recourse through the courts?

Hind sight is great but I feel you have made a bit of a mess of your situation by writing letters and ignoring the fixed penalty .

Be very careful how you word your explination to the court on the day as depending on your demeanour a judge could equally decide you are an arrogant chancer or just made a silly mistake.

I wouldn't even attempt to get in to an argument as to why ou were doing te speed you were doing as the law maes no provision for allowing someone speeding to undertake another car which is travelling at 95% of he speed limit.

ResearchWill · 17-01-2012 11:14PM

First of all on the adjournment, if you have time ring the district court office explain the problem with opperation, the DC clerk may then arrange to tell judge on the day. He will more than likely require you to send in the proof by fax and post make sure to register it or hand deliver it. You will then be informed of new date.

Now your argument, mmmmmm, well all I can say if you are unlucky and in the wrong district, I can see more than a few judges having a field day with you.

It would go like this.

Judge are you pleading guilty,
You no you see I was driving behind this women in the fast lane doing 95, she would not pull in so I undertook her and Garda caught me doing 121.
Judge so not only where you speeding you undertook another car at speed
You well yes but I appealed to the Garda and he never replied so the 28 days past.
Judge what is this appeal to the Garda, which Road Traffic Act is that contained in, inspector, can you tell me which act you can appeal to Garda.
Inspector I am aware on no such right.
Judge see the inspector does not know of any appeal can you tell me about it
You well I now know there is no appeal to Garda but I had written to the station again, and the said they knew nothing about the first letter, so by then the 56 days had past.
Judge so you want me to reduce the points to 2 and reduce the fine to 80 is that it
You yes judge
Judge well no I can't you see the act says I have to give you 4 points, and I will fine you 500 euro 7 days to pay 2 days in default, if you want to appeal I set recogs at 500 euro, next case.

Franktoh · 17-01-2012 11:36PM

ResearchWill wrote: »

First of all on the adjournment, if you have time ring the district court office explain the problem with opperation, the DC clerk may then arrange to tell judge on the day. He will more than likely require you to send in the proof by fax and post make sure to register it or hand deliver it. You will then be informed of new date.

Now your argument, mmmmmm, well all I can say if you are unlucky and in the wrong district, I can see more than a few judges having a field day with you.

It would go like this.

Judge are you pleading guilty,
You no you see I was driving behind this women in the fast lane doing 95, she would not pull in so I undertook her and Garda caught me doing 121.
Judge so not only where you speeding you undertook another car at speed
You well yes but I appealed to the Garda and he never replied so the 28 days past.
Judge what is this appeal to the Garda, which Road Traffic Act is that contained in, inspector, can you tell me which act you can appeal to Garda.
Inspector I am aware on no such right.
Judge see the inspector does not know of any appeal can you tell me about it
You well I now know there is no appeal to Garda but I had written to the station again, and the said they knew nothing about the first letter, so by then the 56 days had past.
Judge so you want me to reduce the points to 2 and reduce the fine to 80 is that it
You yes judge
Judge well no I can't you see the act says I have to give you 4 points, and I will fine you 500 euro 7 days to pay 2 days in default, if you want to appeal I set recogs at 500 euro, next case.

I understand that the Judge could very well act like this.

I'm going pleading guilty to the speeding fine saying that my argument, after much consideration, is insubstantial. I will apologise for the offence caused. However, I am going to please leniency in as nice a way as possible. I have a letter done out explaining why there was a delay with payment.

I will attempt to speak with the Garda first and then the Clerk. I would hope that they would reduce the fine and points to original penalty. A €500 or €800 fine would be hard to take.

ResearchWill · 17-01-2012 11:45PM

Franktoh wrote: »

I understand that the Judge could very well act like this.

I'm going pleading guilty to the speeding fine saying that my argument, after much consideration, is insubstantial. I will apologise for the offence caused. However, I am going to please leniency in as nice a way as possible. I have a letter done out explaining why there was a delay with payment.

I will attempt to speak with the Garda first and then the Clerk. I would hope that they would reduce the fine and points to original penalty. A €500 or €800 fine would be hard to take.

I may be wrong, but any time I have been in court on such occasions, the judge has stated his hands are tied on the penalty points, he may very well keep the fine low most people get 120 of a fine, but it really depends on the judge.

blueythebear · 18-01-2012 12:58AM

ResearchWill wrote: »

I may be wrong, but any time I have been in court on such occasions, the judge has stated his hands are tied on the penalty points, he may very well keep the fine low most people get 120 of a fine, but it really depends on the judge.

Penalty points are not within the Judge's remit. If you plead guilty or are found guilty, you will get the extra penalty points.

The usual fine is often €120 or thereabouts but alot depends on the mood of the judge on the day. If you try to justify breaking the speed limit by about 21kilometres per hour, by saying that a woman was driving too slowly (at 5 kph below the speed limit according to your first post (i think)) then he will most likely throw the book at you. You have no defence and no excuse for breaking the speed limit in the circumstances.

I don't see any way of this playing out other than you being convicted and fined. If you want to delay it or adjourn, have a solicitor attend in order to do so.

whippet · 18-01-2012 12:51PM

at this stage OP I would suggest that you be as humble as possible.

The reality is you were caught committing an offence under the road traffic act. The committal of the offense isn't in doubt and you accept you committed the offense.

The problem I see with your position is that even by 'appealing' the fine and subsequent ignoring of the optional fixed penalty charge you are showing openly that you don't accept what you did was wrong.

to the best of my knowledge our judiciary don't take too kindly to defendants who maintain that they are being hard done by despite breaking the law.

Question about postponing a court date

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