Getting out of Speeding Fines – The Common Law Defences – What Works and What Does not.

Thursday , 30, June 2016 Leave a comment


Introduction

I was at the Magistrates Court today and a party to a speeding matter had some senior counsel representing him.  A thick bound folder in hand with a title on the side “Motor Vehicle Laws”, this was going to be a contested trial.

speeding

The defence raised?  Necessity.    What?  He had to do it? That was the defence ?

Necessity 

This is an interesting defence, but difficult to prove, here the burden is on the accused to show with evidence to prove that they were acting out of necessity.

However if you can successfully show on the balance of probabilities that more likely than not you were speeding because you had to in order to avoid being killed or being seriously injured or to protect someone else from the same.

Your reaction needs to be proportionate to the level of harm you are facing¹, the defence of necessity is closely related to “self-defence” in that both require you to react on your reasonable belief of imminent harm and your reaction was to avoid the danger and can not be disproportionate to that danger².

If the accused is able to successfully do so, then the prosecution must negate the defence beyond reasonable doubt.

However be aware the Court as in Self Defence claims will examine the evidence carefully and you will really need to prove in the situation you faced you had no choice but to speed to avoid harm.

What if I was in an emergency situation attending hospital?

Special consideration may be applied in the event of a genuine medical emergency. You may be required to provide a medical record or statement from a medical professional at the emergency hospital you attended.

Is an illness in the family exceptional circumstances?

Unless there is a genuine medical emergency, this will not generally be considered an acceptable reason to fail to obey road safety rules. You may be required to provide a medical record or statement as evidence of the medical emergency.

Mistaken Fact 

The Common law defence of “honest mistake” will not work.

This defence was used in Kearon v Grant [1991] 1 VR 321 but the Court held that the common law defence of mistaken honest and reasonable belief as to fact is not open to a charge of exceeding the speed limit. This applies both to the issue of what the speed limit was OR at what speed you were travelling.

SPEED CAMERAS MUST COMPLY WITH THE NATIONAL MEASUREMENT ACT 1960 ?

This is a common misconception perpetuated by groups such as the “Get out of Fines”, “Know your Rights” and “Aussie Speeding Fines” however this is simply not true.

The issue relating to the applicability of the National Measurements Act 1960 (Cth) has
previously been dealt rejected by Courts as being a basis for attacking the reliability of
speed measuring devices (Re Appeal of White (1987) 9 NSWLR 427, Rumsley v Taylor (Unreported) WASC 10.12.1997). I reject that argument.

Then at [25] Mr Y argued that measuring devices required certification by the National body. He also submitted that there was a memorandum of agreement with the Victorian government that every testing device has to go through NATA’s laboratories to receive approval. I reject that submission.

The legal validity of the Victorian Road Safety Camera Program arises from the Road Safety Act 1986 and the Road Safety (General) Regulations 2009 (the Regulations). All automatic detection devices are used, tested, sealed and certified in accordance with the Road Safety (General) Regulations 2009 and the evidence produced by the devices undergoes a rigorous verification process to ensure that it is of the highest standard.

Camera test certificates – Available here

All Victorian fixed digital road safety cameras are tested annually by a testing officer in accordance with the Road Safety (General) Regulations 2009. Once successfully tested, a compliance certificate is issued for each camera. These certificates show that the camera is operating correctly and can be used as evidence in court

MARGIN OF ERROR IN CAR SPEEDO

In POLICE V KS, DT & IY  at  [23] It is not the law that a driver who is alleged to have exceeded the speed limit can rely upon any margin for error in his or her speedometer ( Kearon v Grant [1991] 1 VR 321).  Accordingly I reject that argument.

MISTAKE IN THE WORDING INVALIDATES THE INFRINGEMENT NOTICE

In Foster v Harris [2012] VSC 637 it was alleged an infringement notice was invalid when it failed to specify the time when the speed zone applied to drivers or the time when the alleged offence occurred or that occurred on a declared school day.

At [19] (To) establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street.

It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant (For examples of rules governing the applicability of the speed-limit to the appellant for the length of road, see rr 21(1) and (3), 315, 316, 317A, 318(1) and 342 of the Rules).

POLICE DID NOT USE THE SPEED CAMERA DEVICE ACCORDING TO REGULATIONS

In Rodger v Wojcik [2014] VSC 308 it was held at [28] There is no evidence in the preliminary brief that the radar had been used in accordance with rr 46(a)(ii) and (b).

Further, it was not open to infer that it had been so used. To do so would be to speculate.

While I recognize that evidence is not necessarily to be understood by reference to the maxim expressio unius est exclusio alterius (a principle in law: when one or more things of a class are expressly mentioned others of the same class are excluded), it seems to me that, absent other evidence, no trier of fact acting reasonably could exclude the possibility of non-compliance with those provisions when the respondent expressly mentioned compliance with other related provisions.

In this case Croucher J re-sentenced based that he had exceeded the speed limit of 70 km/h by less than 10 km/h, avoiding the otherwise 12 month minimum licence suspension he would have got with the original charge of 129 km/h in a 70 km/h speed zone.

At [40] The statement was also deficient because I am persuaded that the informant, by exhibiting the radar certification and stating that the seals were intact, intended to prove the speed alleged by the procedure under s 79 of the Road Safety Act.

In McWhirter v Dunlop; Tran v Harris [2013] VSC 697 (13 December 2013) at [40 ]The statement was also deficient because I am persuaded that the informant, by exhibiting the radar certification and stating that the seals were intact, intended to prove the speed alleged by the procedure under s 79 of the Road Safety Act.

The informant’s statement, if admitted into evidence, does not satisfy all of the requirements of the section to permit proof of the speed of the appellant’s vehicle by use of the device.

As the appellant correctly contends, the informant has not identified that a prescribed speed detector had been used, nor has he proved that the device which was used, assuming that it was a prescribed speed detector was used in accordance with reg 46.

The preliminary brief does not satisfy the preconditions that permit proof of speed by use of a prescribed speed detector.

Section 79 cannot operate to remove any doubts about the quantum of the detected speed. Further, the respondent’s statement refers to what was done by ‘police’ and cannot establish that the respondent could give evidence of any observation.

At [41] However, s 79 is without prejudice to any other mode of proof of speed. Relying on this saving condition, the respondent contended that, and in the absence of evidence to the contrary, the court could be satisfied that the charge could be proven. First, the respondent contended that although s 79 of the Road Safety Act provided one particular means by which evidence of this particular speed measuring device may be admitted it was not the only means.

The respondent contended that the respondent’s assertion that the device produced a reading of 151 kph in the preliminary brief was nonetheless admissible because that statement proved that the device had been tested in accordance with the regulations and was accurate to within 2 kph. Further, the device had been tested and sealed only weeks before it was used. I do not accept that those matters, standing alone, permit reliance upon a readout from a device that is not properly identified as a prescribed device and in circumstances where there is no evidence as to the manner in which it was used. Without the benefit of the statutory presumption, there will be a reasonable doubt about the alleged detected speed.

THE PROSECUTION MUST PROVE EACH ELEMENT BEYOND REASONABLE DOUBT

In McWhirter v Dunlop; Tran v Harris [2013] VSC 697 at [31] There is nothing in the statute that, in my view, relieves the prosecution of the obligation to demonstrate the existence of every necessary element of the offence when proceeding ex parte on a preliminary brief.

The task of determining whether the matters disclosed in the preliminary brief disclose the offence charged will be discharged when the magistrate considers, meaning is satisfied, that the matters set out in the preliminary brief demonstrate that evidence is available to prove, beyond reasonable doubt, every necessary element of the offence.

In this case the appellant was charged with driving at 149 km/h in a 100 km/h speed zone. The charge was heard ex parte, on the basis of a preliminary brief of evidence that had been filed; see ss 37, 80 and 84 Criminal Procedure Act 2009. He was suspended from driving for 12 months

At [38] The court could be satisfied that the matters set out in the preliminary brief disclosed the offence charged because the prosecution disclosed by that brief how the necessary elements of the offence charged would be proved. However, the McWhirter brief was of a poor standard and two elements of the offence would not be proved in the manner primarily intended by the informant if his statement was admitted into evidence, those matters being:

(a) the speed limit that applied to the driver for the length of road where the driver was driving; and
(b) whether the speed of the appellant’s vehicle exceeded the applicable speed limit by more than 45 kph.

POLICE FAILURE TO INCLUDE THE INFRINGEMENT NOTICE IN THE BRIEF MAKES IT INADMISSIBLE EVIDENCE

At [39] These elements of the offence warrant further analysis. The statement was deficient in failing to record any observations by the informant of the speed limit that applied to the driver for the length of road where the driver was driving. The respondent contended before me that the brief established that matter by reference to the infringement notice, in which the box headed ‘Permitted Speed’ has been completed with the entry 100 kph. However, the infringement notice is not admissible under s 84 since it was not included in the exhibit list verified by the informant’s statement in the preliminary brief. Although the copy infringement notice appears to be signed by the informant, it does not comply with s 38 of the Criminal Procedure Act.

Notwithstanding these deficiencies Dixon J found at [41] that it was open for the magistrate to consider that the matters set out in the preliminary brief disclosed the offence of disobeying the speed limit. His Honour held at [51] that these deficiencies meant that it was not open for the magistrate to find that the appellant had exceeded the speed limit by 45 km/h or more.

POLICE DISCRETION NOT TO FINE

Police Officers may apply their discretion at the time of issuing an Infringement Notice and issue a warning at the time of interception if they deem it appropriate in the circumstances.

Some further information is available on VICTORIA POLICE FAQ

Footnotes : –

  1. R v Loughnan [1981] VR 443.
  2. R V Roger (1966) 86 A Crim R 542


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