Traffic Camera’s

Monday , 9, November 2015 Leave a comment


Oral Arguments :

It’s called a “court” but nothing else resembles judicial power etc…there’s no judge, no appearing in court (if you want to appear you need to go to the Magistrates court), no sanctions (the infringement is already in place before it goes to the “infringements court”

Question without notice: Would this mean if a speed detection did occur could we request that the camera be tested? TRAFFIC REGULATION 1962 – SECT 210C Operating and testing digital speed camera systems
If a digital speed camera system is used to provide evidence of a prescribed offence, the following provisions must be complied with—

the system’s camera must be positioned and aimed to ensure an image taken by the camera depicts the front or rear of the vehicle the speed of which was measured by the system;
if a relevant event happens—the system must be tested in accordance with the specifications of the system’s manufacturer to ensure the system operates correctly;
if a fault is indicated in the system because of testing under paragraph (b)—corrective action must be taken and the testing must be repeated until no fault is indicated in the system;
if the tests or an image when viewed indicates a fault has affected the proper operation of the system as required under this section, the image must be rejected for evidentiary purposes.

Prosecution has the advantage already, right to be heard is critical

[29] It was then submitted by the appellant that she was deprived of a fair trial because no witnesses were called by the prosecution so that she was unable to put her case forward. In circumstances where a legislative regime has been put in place under which documentary evidence can be given of various matters, the prosecution is not acting unfairly by taking advantage of that regime. If in the particular circumstances of the case the legislative regime goes so far as to create a situation where a prosecution can be mounted entirely on the basis of documents made admissible by statute, it can hardly be unfair for the prosecution to take advantage of a situation deliberately created in that way by the legislature.Lekich v Dixon [2009] QDC 111 (8 May 2009) at [29]

Written Arguments :

Evidence :

(2) Evidence may not be so given unless—

(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and

(b) the police officer signed the statement when it was made; and

(c) a copy of the statement had been given to the person charged or to the person’s Australian legal practitioner a reasonable time before the hearing of the evidence for the prosecution.

A reference to a television current affairs program, which was not the subject of evidence at the trial, was therefore irrelevant as well as being inadmissible. Lekich v Dixon [2009] QDC 111 (8 May 2009). at [52]

Indeed, even without evidence of testing, evidence as to the speedometer reading would be admissible, given the nature and function of a speedometer: Thompson v Kovacs [1959] VicRp 40; [1959] VR 229 at 233.  (So a witness of the speedometer reading or video footage may be admissible if it had gps/time stamp)

[19] The police prosecutor said in this matter that a copy of the police brief had been provided to the appellant, but did not say when: p 8. It ought to have been at least 14 days before the trial: Criminal Code s 590AI(2)(a). Lekich v Dixon [2009] QDC 111 (8 May 2009) In Footnotes.

STEP 2

Take a good look at the Statements made by the police.

Then take a good look at Division 3 of the Evidence Act.

Any thing in the statement that :

1) Is not directly relevant to the charge;
2) Is Hearsay;
3) Is an Opinion;
4) Statements of conclusion of fact without tendered supporting evidence;

So you can now move to have anything in those statements that falls within those areas to be stricken from the record as inadmissible.

The important thing to remember you must challenge the admissibility of this evidence, otherwise it will stand and be considered against you.

Of course the above is not cut and dry, there are exceptions to the rule and each case is different but the general principal is the same.

ROAD SAFETY ACT 1986 – SECT 90 – Admissibility of Driving History 

(4)     Any such document may not be tendered in evidence without the consent of the accused if the accused is present at the hearing of the information.

“The appellant also appealed against sentence, on the basis that his traffic history was produced in Court before the Magistrate, which he submitted was contrary to the Road Safety Act, s 90(4). This appears to be reference to s 90 of the Road Safety Act 1986 of Victoria, which does provide that a document alleging prior convictions served with a summons may not be tendered in evidence without the consent of the accused if the accused is present at the hearing of the information” Crabbe v Queensland Police Service [2013] QDC 122 (13 May 2013) at [28]

EVIDENCE ACT 2008 – SECT 91

Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

EVIDENCE – Documentary evidence – certificate – statements in certificate not covered by statutory provisions not admissible evidence (Lekich v Dixon [2009] QDC 111 (8 May 2009).

NOTE :

[23] Section 118 of the Act relevantly provides:

“(4) If the person intends to challenge the image from a photographic detection device at a hearing, the person must give the commissioner written notice of the intention at least seven days before the day fixed for the hearing.

(5) A notice under subsection (4) must be in the approved form and must also state the grounds on which the person intends to rely to challenge the image from the photographic detection device.”

NB:  Above is cited from Lekich v Dixon [2009] QDC 111 (8 May 2009) at [23].  Which Act is not clear. Check for your state.

HOWEVER at [26]

[26] It seems to me clear that, whatever the true scope of s 118(4), it does not extend to a prohibition on a challenge (without notice) to the interpretation of the image, and in particular, on making a submission as to whether the speed detected by the detection device is applicable to the vehicle in respect of which the defendant has been prosecuted. That appears to be consistent with the approach of this court in Bendels v Lilley [2001] QDC 79, where submissions were advanced and entertained as to the correct interpretation of the image in circumstances where no notice had been given under s 118, although the submissions were rejected on their merits by both the magistrate and the judge on appeal.

REASONABLE DOUBT

[32] It is always open to a defendant to call other evidence as to the speed of the defendant’s vehicle at the relevant time. Depending on the nature and content of that evidence it may be sufficient to give rise to some reasonable doubt as to whether the defendant’s vehicle was exceeding the speed limit at the time, notwithstanding the evidence of the speed camera. Lekich v Dixon [2009] QDC 111 (8 May 2009)

[34] That may well remain the case even if the defendant gives evidence of a belief that at the time the speedometer of the vehicle was indicating a lower speed. Such evidence may be mistaken, or may be the product of some inaccuracy of the vehicle’s speedometer. Obviously such evidence is admissible in relation to the issue, and whether it gives rise to reasonable doubt in a particular case will be a matter for the magistrate, though it would be unsurprising if evidence which went no further than the statements of the appellant in the present case did not. It is possible to imagine a situation where a vehicle incorporated a technical device, which had been properly calibrated and recently tested, and which reliably recorded the vehicle’s speed at any given time, and from which it was possible to provide evidence which on its face was comparable with the reliability of the speed camera, suggesting that the speed camera was inaccurate and that the vehicle was in fact at the time travelling at a lower speed, and within the speed limit.[12] In such a situation, of course, one would certainly expect that a magistrate would have at least a reasonable doubt as to whether the offence had been proved. It does not appear to me that there is anything in the Act and regulation which would prevent a prosecution from being defended, and indeed successfully defended, on such a basis; no doubt in practice what prevents this is the unavailability of such evidence. Obviously these are extreme examples; there could be a whole range of other admissible evidence, some of which may and some of which may not give rise to a reasonable doubt. Lekich v Dixon [2009] QDC 111 (8 May 2009)

RIGHT TO OBJECT & CERTIFICATES SIGNED UNDER DELEGATED AUTHORITY

[38] In effect, this was presented by the magistrate as a fait accompli. The appellant was given no opportunity to object. The difficulty for the respondent is that s 4.10 of the Police Service Administration Act 1990 did not amount to a delegation to the respondent; it permitted a delegation to be made, relevantly, to the respondent. In order to show, however, that the certificate of the respondent was effective as a certificate for the purpose of s 120 of the Act, it was necessary for the respondent to prove the fact of that delegation. Without proof of that, the certificate was not capable of having the evidentiary effect provided for by s 120 in the case of a certificate by the Commissioner. The respondent sought to prove the delegation by including reference to it in the certificate. The difficulty with that approach is that I am not aware of any statutory authority under which the delegation can be proved by the certificate of the delegate. Lekich v Dixon [2009] QDC 111 (8 May 2009)

[39] The starting point, of course, for any criminal prosecution is that the evidence is to be given orally. Evidence in writing is prima facie hearsay and is inadmissible unless it comes within a statutory exception to the rule against hearsay.

DELEGATED AUTHORITY MUST BE PROVEN

The fairly limited general provision for documentary evidence in criminal proceedings in s 93 of the Evidence Act 1977 was not wide enough to cover a certificate of this nature. Although there are a great many certificates of various things made admissible under s 124 of the Act, or by s 60 or elsewhere in Division 2 of Part 5 of Chapter 3 of the Act, none of them includes a certificate by a person to whom something has been delegated that that delegation has occurred.
[40] Section 27A(14) of the Acts Interpretation Act 1954 provides that “a certificate signed by the delegator (or, if the delegator is a body, by a person authorised by the body for the purpose) stating anything in relation to a delegation is evidence of the thing.” Accordingly, a certificate signed by the Commissioner would have been admissible as evidence of the delegation, and by subsection (15) a document purporting to be such a certificate is to be taken to be such a certificate unless the contrary is established, so that on the face of it such a certificate could simply have been tendered. But there is nothing in that Act by which a certificate by the delegate is made evidence of the existence of the delegation. There is certainly nothing in s 120 of the Act which permits the delegate to certify to the existence of the delegation where the Commissioner’s power has been delegated. Lekich v Dixon [2009] QDC 111 (8 May 2009).

INADMISSIBLE EVIDENCE

If the certificate itself was not admissible evidence of that fact, and there was no other admissible evidence of that fact, the respondent failed to prove that the document certified by him was effective as a certificate under s 120 of the Act. Accordingly, the photograph and certificate lacked the evidentiary effect given to it by that provision.  Lekich v Dixon [2009] QDC 111 (8 May 2009) at [43].

[45] I am not aware of any statutory provision under which the certificate of the respondent was admissible evidence of the fact of the delegation, and no such provision has been drawn to my attention by counsel for the respondent. I cannot guarantee that there is not a provision, lurking in some Act somewhere, which has the effect of making the respondent’s certificate evidence of the fact of the delegation.[14] All I can say is that it has not been shown before me that there was any evidence of that fact before the magistrate. In the absence of evidence of that fact, the purported certificate was inadmissible, as on its face it was not a certificate by the Commissioner, and it had not been proved that it was a certificate of a person to whom the power to issue certificates under s 120 of the Act had been validly delegated.Lekich v Dixon [2009] QDC 111 (8 May 2009) at [45].

OUT GOES THE PHOTO

[46] It follows that there was no admissible evidence before the magistrate to verify that the photograph in Exhibit 1 was what it purported to be, or of the various things referred to in the certificate. A photograph does not prove itself; it must be proved by admissible evidence.[15] In the absence of admissible evidence of the delegation, the certified photograph was not properly proved, and the tender of it should have been rejected by the magistrate. The magistrate erred in law in admitting Exhibit 1 into evidence, and by attributing to it the effect provided by s 120 for an image certified in accordance with that section. The same applies to Exhibit 2, although that did not add anything to Exhibit 1. Lekich v Dixon [2009] QDC 111 (8 May 2009) at [46].

AND THEY CANT USE THE PHOTO/CERTS ON APPEAL

[48] A copy of the delegation was provided to me with additional submissions in writing on behalf of the respondent, but that cannot be received as evidence on the appeal. Although there is a power in s 223(2) of the Justices Act 1886 to admit fresh, additional, or substituted evidence on the hearing of the appeal, that power is confined to a situation where the court is satisfied that there are special grounds for giving leave. Such leave was not expressly sought in the written submissions on behalf of the respondent, and in any case there is no reason to think that this evidence was not available to the respondent at the trial, so that the ordinary rules governing the receipt of fresh evidence on appeal[16] would not be satisfied in this case. Lekich v Dixon [2009] QDC 111 (8 May 2009) at [46].

NOTE : IF YOU WANT TO QUESTION THE POLICE OFFICER

[42] That was a reference to the provisions of s 10.12(4) of the Police Service Administration Act 1990. That subsection provides:

“If, in a proceeding, a person intends to question the power of an officer to act under a delegation under this Act, the person must give to the Commissioner notice of the intention at least seven days before the power is questioned in the proceeding.”

MAGISTRATE MUST FOLLOW THE LAW 

“It is the essence of the exercise of judicial power by a court that it acts according to law, which includes the law laid down by parliament in, for example, the Act.” Lekich v Dixon [2009] QDC 111 (8 May 2009) at [51].

Onus of Proof – It’s up to them to prove your guilt, you do not need to prove innocence.
5.Except for limited statutory exceptions, in criminal trials the onus of proving the accused’s guilt always lies on the prosecution. Accused people do not need to prove their innocence (Woolmington v DPP [1935] AC 462; He Kaw Teh v R (1985) 157 CLR 523; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).
6.If a statute is silent as to who bears the onus of proving an offence, it is presumed that it will be the prosecution (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Stingel v R (1990) 171 CLR 312; Czerwinski v Hayes (1987) 26 A Crim R 213).

The points here to use are 2 (a) and 2(c) when dealing with Traffic Infringements as a basis of contesting the evidence brief once you challenge it in Court.

By the time you get a fine in the mail and contest and have it heard in the magistrates court you would object to the brief of evidence including the police statement for it would be contrary to law as per 2 (a) and (c) of the evidence Act

Extortion by and impersonation of court officials

The following persons are guilty of an offence and liable to a fine of not more than 20 penalty units or to imprisonment for a term of not more than 2 years or to both—

(a) a court official who extorts, demands, takes or accepts from any person any unauthorised fee or reward;

SENTENCING ACT 1991 – SECT 76

Unconditional dismissal
A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge.

ACTS INTERPRETATION ACT 1901 – SECT 35

Measurement of distance
In the measurement of any distance for the purposes of any Act, that distance shall be measured in a straight line on a horizontal plane.

If Multiple Vehicles in the Image

Bendels v Lilley [2001] QDC 79, where the matter in issue was whether the speed detected by the detection device applied to one vehicle shown in the image rather than another vehicle shown in the image. In the present case there is only one vehicle which is travelling away from the camera shown in the image, and therefore it is the only vehicle which could be the target vehicle, that is to say, the vehicle the speed of which was measured by the detection device. Accordingly, the detected speed of 114 kilometres per hour applies to the appellant’s vehicle. It is therefore unnecessary for me to consider whether any additional evidence would be necessary in circumstances where the image contained two vehicles, either of which could have been the target vehicle, and there is some issue about which of the vehicles was the vehicle detected by the speed camera.

Appeal 

[1] This is an appeal pursuant to s 222 of the Justices Act 1886 from the conviction of the appellant in the Magistrates Court at Caboolture on 4 September 2008 following a summary trial Lekich v Dixon [2009] QDC 111 (8 May 2009) at [1]

The grounds of appeal in the notice of appeal were in the following terms:

“Wrongful identification. Prosecution failure to disclose. Incorrect evidence entered by prosecution. No police witness for defendant to question. Magistrate ignored critical evidence. Magistrate denied defendant right to produce evidence. Magistrate showed prejudice against defendant by allowing improper and incorrect evidence by the prosecution. Magistrate denied defendant right to a fair and impartial trial.” Lekich v Dixon [2009] QDC 111 (8 May 2009) at [5]

Relevant Legislation :

  1. EVIDENCE ACT 2008 – SECT 32  – Attempts to revive memory in court
  2. EVIDENCE ACT 2008 – SECT 33 – Evidence given by police officers
  3. MAGISTRATES’ COURT ACT 1989 – SECT 23 – Extortion by and impersonation of court officials
  4. SENTENCING ACT 1991 – SECT 76 – Unconditional dismissal
  5. ACTS INTERPRETATION ACT 1901 – SECT 35
  6. TRAFFIC REGULATION 1962 – SECT 210C – 210C Operating and testing digital speed camera systems
  7. JUSTICES ACT 1886 – SECT 222
  8. EVIDENCE ACT 2008 
  9. EVIDENCE ACT 2008 – SECT 91

Relevant Case Law :

Covering TRAFFIC REGULATION 1962 – SECT 210C – 210C Operating and testing digital speed camera systems

Link to Law Cite 

 

 

Lekich v Dixon [2009] QDC 111 (8 May 2009) – Appeal allowed, conviction and penalty set aside, verdict of acquittal entered.

Issues

  1. Can you bring evidence from other Government departments that were not addressed to you personally?  Eg: Traffic Camera Office Letter from another member?  Lekich v Dixon [2009] QDC 111 (8 May 2009) at [2]
  2. The Magistrate, instead of pointing out that he could not act on that unless it was given as evidence, went on to ask how the court was to know that the speedometer was accurate ? ~ Lekich v Dixon [2009] QDC 111 (8 May 2009) at [3]
  3. If there is an Australian standard for testing speedometers, a matter of which I have no knowledge, then evidence that the speedometer had been tested in that way would certainly have been admissible, but the implication that evidence of other forms of testing was not admissible is plainly wrong. Any evidence which is logically probative of the proposition that the speedometer was accurate when registering a speed of 100 kilometres per hour would be admissible in order to prove the accuracy of the speedometer.[2] ~ Lekich v Dixon [2009] QDC 111 (8 May 2009) at [3]
  4. Although it is not entirely clear that she was properly informed that the Magistrate could not act on factual statements she made unless she did give evidence. Lekich v Dixon [2009] QDC 111 (8 May 2009) at [4]


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