TAS Car in Police Custody - What to Do?

Discussion in 'Traffic Law Forum' started by Unfairlytreated, 2 March 2019.

  1. Unfairlytreated

    Unfairlytreated Active Member

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    My car has been clamped by the police indefinitely (4weeks ago) due to someone I know driving it who has a disqualified drivers licence and had been intercepted by the police driving it 3 times in the last 12 month period.

    Please note I was not the driver of the car that committed offences, but I am the registered and licensed owner of the vehicle. Although I had not authorised him to drive the car on this occasion, my keys were left in an area that was accessible by him. Police remanded him in custody and refused him bail and he has fully been cooperative and admitted fault.

    It's the only car I have and causing me severe hardship, as I have a 3-year-old child that requires me taking him to daycare etc, work on a casual basis, also needing the car to make weekly visits to my son's father who is terminally ill in hospital. I was advised to make an order to the magistrate to have it unclamped, which I did. Police prosecution has denied this request and put in an order for forfeiture of the vehicle, and the matter is due for court again on 26th March. As yet, I have been asked no questions by police or had the opportunity to explain or defend this decision. I also have no history of any driving offences whatsoever. The driver has been sentenced to 9 months prison, so obviously has no opportunity to be able to drive my car again, nor would I let him, so the forfeiture order of my vehicle would not be preventing any danger to the public.

    Why haven't I been given any reasons for this action? Why is an innocent person (myself) being punished when I have committed no offence? How can I challenge this forfeiture order? I can not afford a solicitor and myself and my innocent child are suffering from this action.
     
  2. Rob Legat - SBPL

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    This isn’t my area and an absolute guess, but my suspicion is that t was because the car has been used multiple times in the past twelve months by the offender. There may some suggestion that your failing to take sufficient action to safeguard the car against further unlawful use amounts to having given permission for the offender to use it.
     
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  3. Scruff

    Scruff Well-Known Member

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    To me it sounds like the car might have been used in the commission of some other offence as well.
     
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  4. Unfairlytreated

    Unfairlytreated Active Member

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    Thanks to both for taking the time to read my issue and respond. Its great to hear comments from an unbiased perspective, as I'm feeling like its an unnecessarily harsh deciscion by police, and perhaps there are other circumstances that I'm unaware of....
    Understandably the assumption by authourities is that I've knowingly given permission for the offender to drive my car whilst knowing he was disqualified, however was certainly not the case after I was made aware of this. Worked hard to pay my car off and not having access to a car is really hitting me hard. I believed that under Australian law people were assumed innocent until proven guilty.
     
  5. Rob Legat - SBPL

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    That is becoming less and less the case over time - in practical reality and in written law.
     
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  6. Unfairlytreated

    Unfairlytreated Active Member

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    Please would anybody know: If police are successful in confiscating my car and it is forfeited to the crown, does it get sold by them to recover fees court costs etc and the remainder returned to the registered owner?
     
  7. Rob Legat - SBPL

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    Per the Police Offences Act 1935 (Tas):

    - If the vehicle is not recovered within 2 months after the confiscation period ends, the police may 'dispose' of the vehicle in a way considered 'appropriate' (section 37ZH). My impression is standard practice is that roadworthy vehicles get sold at public auction - unroadworthy vehicles get crushed.

    - If they can find the registered operator of the vehicle, notice is given to them. Either way, an advertisement in the paper local to where the vehicle was confiscated is published.

    - If the vehicle is sold, the proceeds are dealt with in a particular order (section 37ZL):
    (a) Paying the expenses of the sale (e.g. auction fees)
    (b) Paying the costs from confiscation and storage
    (c) Paying out any money owing under a registered security interest
    (d) If the sale is done under section 37ZH, the balance goes to the owner of the vehicle. However, if the vehicle was forfeited under section 37ZI, the government keeps the balance.
     
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  8. Scruff

    Scruff Well-Known Member

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    I'd be engaging a lawyer immediately.

    For the Police to confiscate and even consider disposing of a vehicle when the owner hasn't even been questioned, let alone charged, is just ludicrous and simply can not be justified. If all they have is that a third party drove the vehicle while disqualified, then I think that any reasonable person would consider the Police action here as being way over the line.

    Personally, I think it's absurd and the Police Officers involved should be repremanded. They haven't justified their actions in any way whatsoever.
     
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  9. Rob Legat - SBPL

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    Scruff, it's not unusual. From their point of view, I imagine the vehicle is evidence in the commission of an offence or crime. Actual ownership is a secondary consideration.

    Although I haven't dealt with it from an owner's point of view - I have dealt with it from a secured lender's position. These situations would come up semi-regularly and almost every time we'd get an urgent phone call from the police holding yard that they've confiscated a vehicle and are about to sell it, demanding a release of security or payment of the exorbitant storage fees for the past few months.

    My understanding is they make no attempt to find and contact the owner until they have to. If someone comes in to proves owner and collects the car then their job is done. Actually spending the manpower and expense of doing a search is something they'd prefer to avoid. In their position, I probably would too.
     
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  10. Unfairlytreated

    Unfairlytreated Active Member

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    Thanks Scruff for agreeing with what I was thinking. TAS has some of the toughest "hooning" laws in Australia, introduced since "sarah Painos Law". (A young mother tragically killed by a stolen car whilst her unborn baby survived). However there are always exceptions to laws and simply confiscating my car, as previously mentioned, is not preventing any danger to the public. Unfortunately, being a single mother I cannot afford a solicitor, and Legal aid Tasmania have told me they dont have the funding to cover "driving matters". My only option I guess is to try and put forward my side of the argument in court on 26th March, meanwhile left with no car. If this fails I'm considering going to the media. Thanks to you also Rob Legat.
     
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