WIN on appeal - speeding 115 in a 100

jsherk
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WIN on appeal - speeding 115 in a 100

by: jsherk on
Thu Oct 29, 2015 4:53 pm

Okay so this trial was way back on July 7, 2013. My wife was charged with 115 in a 100 on the 401 near Brockville in February of 2013.

Yes it is a little while back, but still want to share the transcript for those interested.

I represented her at the original trial. I had a paralegal assist me in preparing for the case, so I was pretty well prepared and thought I did a pretty good job, but I still lost!

So I hired the paralegal to do the appeal as I did not want to lose again.

The appeal was on April 21, 2014. Our paralegal had prepared the defense in writing ahead of time and sent it to the prosecutor about week before the appeal so he would have time to review it.

Basically we showed up and the prosecutor asked to meet with our paralegal. His comment was that he did not necessarily agree with everything that our paralegal said, but did agree with some of the issues and felt that the appeal would probably be allowed even if he tried to fight it, so he would just concede.

Court starts, case is called, prosecutor tells Judge he is not going to argue against the appeal, Judge says "appeal allowed, not guilty". Thank you very much!!

Here is original trial transcript:
https://copy.com/pJiz1LvXCkZQrmvu

And here is the appeal that our paralegal prepared:
https://copy.com/hFPa32o2pWQna7Yw
+++ This is not legal advice, only my opinion +++


Keegan
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by: Keegan on
Fri Oct 30, 2015 4:44 am

Very interesting! Congrats on winning on appeal. I've been looking for transcripts as a resource, especially when it comes to speeding charges. I've defended myself in Brockville, too -- against the same prosecutor. I can't say I won :P I got a suspended sentence so it could've been worse. Curious about what you thought of the prosecutor at trial and whether it was the norm.




jsherk
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by: jsherk on
Fri Oct 30, 2015 8:57 am

I did not like JP Sculthorpe at all. Very rude and condescending. In fact I filed a complaint against him (not because of the verdict but because of his attitude) but the complaint was dismissed.

The prosecutor McDougall seemed okay. I did not have any issues with him.

This case was a couple years ago, but just finally got around to posting it exactly for the reason you said ... will give you some good insight into how a good appeal looks! I don't remember all the details of case since it was 2 years ago and have not read thru the transcript again, but if he did not ask for submissions as to penalty then I think you can use that in an appeal as well.

A key issue to winning on appeal is understanding that you can NOT bring any new evidence to the appeal trial.

It is strictly based on the transcript of the original trial. If it is not in the trial transcript, then it did not happen!

So you need to hammer the officer with a million questions in cross examination and TRY to get everything you can think of into evidence.

If it shows up on the trial transcript that you tried to put something in evidence and were denied, then this could be grounds for the appeal Judge to either drop the charge or order a new re-trial. But if you do not even try then that evidence it is not on the record at all and it is as if it does not exist.

The other issue is that a transcript does convey the emotions or attitude of the people speaking. If the JP or prosecutor speak to you in a rude manner (or intimidate you or whatever) then you need to say something so that it appears in the transcript. Something like "sir, I do not appreciate you raising your voice at me in that manner" means that if you file a complaint, there is an actual record of the rudeness on the transcript.
Last edited by jsherk on Fri Oct 30, 2015 9:14 am, edited 3 times in total.
+++ This is not legal advice, only my opinion +++


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bobajob
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by: bobajob on
Fri Oct 30, 2015 9:00 am

hey there, what does a suspended sentence mean with regards to speeding ?

"A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation."

So your on probation, so if you commit another offence what happens then
also if asked by your insurance, what do you tell them
what would your abstarct show
would the original charge come back on re-offence

txs
--------------------------------------------------------------
* NO you cant touch your phone
* Speeding is speeding
* Challenge every ticket
* Impaired driving, you should be locked up UNDER the jail


Keegan
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by: Keegan on
Fri Oct 30, 2015 9:07 am

bobajob wrote:hey there, what does a suspended sentence mean with regards to speeding ?

"A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation."

So your on probation, so if you commit another offence what happens then
also if asked by your insurance, what do you tell them
what would your abstarct show
would the original charge come back on re-offence

txs
I could be wrong about the term suspended sentence -- I'm 90% sure that's what the justice called it, though. I was convicted of the offence, made submissions as to penalty and though it was registered as a conviction with demerits, there was no fine imposed at all.


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bobajob
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by: bobajob on
Fri Oct 30, 2015 9:11 am

ok, so it can't be a suspended sentence.
I can see how it works for a "crime" or "criminality" but speeding convictions... doesn't make sense
txs

Keegan wrote:
bobajob wrote:hey there, what does a suspended sentence mean with regards to speeding ?

"A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation."

So your on probation, so if you commit another offence what happens then
also if asked by your insurance, what do you tell them
what would your abstarct show
would the original charge come back on re-offence

txs
I could be wrong about the term suspended sentence -- I'm 90% sure that's what the justice called it, though. I was convicted of the offence, made submissions as to penalty and though it was registered as a conviction with demerits, there was no fine imposed at all.
--------------------------------------------------------------
* NO you cant touch your phone
* Speeding is speeding
* Challenge every ticket
* Impaired driving, you should be locked up UNDER the jail




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