Tag Archives: speeding fine

Defences to a Lidar speeding fine

Speeding fines based on Lidar or radar readings are difficult to defend, but not impossible, says NSW traffic and criminal law specialist Chris Kalpage.

The Ducati-riding solicitor has previously provided our readers with tips on what to do when pulled over by police and defences to speeding fines based on a police officer’s estimate or “check speed”.

Check out his tips on defending a Lidar or radar speeding fine:

Chris Kalpage evidence pulled lidar
Chris on his Ducati at the track

Lidar readings

Lidar speed readings are potentially more accurate than “check speeds” and police estimates which were covered in my previous article.

So they need more careful analysis prior to any court hearing.

“LIDAR” stands for Light Detection and Ranging which means it uses pulsed lasers of light.

Police aim the hand-held Lidar device at an object and a laser beam of light bounces back and forth to measure changes in the distance over time.

It is the most accurate form of speed assessment.

Radar devices work the same way, but use radio waves instead of light.

Calibration

However, like any measuring instrument, these can be compromised depending on calibration and manner of use.

Failure to produce a S137 Road Transport Act certificate at a hearing could call into question the reading obtained.

We also consider whether the device has been properly calibrated. The prosecution would have to produce a certificate signed by the police officer at the start and end of their shift certifying the device was tested over a measured prescribed distance of 25m and 50m.

Each Lidar has a prolaser testing book, which is completed and signed off when the tests are done.

Lidar use

LIDAR Low speed threshold a danger hidden demons lidar
LIDAR is used around the world

We also consider the use of the Lidar on a motorist.

  • Was there a clear line of sight for the officer during the duration of the test?
  • Was the required three-second observation and testing likely, based on available distance for the test and the alleged speed? For example if the maximum sighting distance from the officer is 30m and you are meant to be travelling at 30m/second they only have one second to conduct the test which is insufficient time.
  • Was there excessive movement of the unit?
  • Is there the potential for the laser to be reflected back from another surface?

Radar devices

If the radar device uses a Doppler beam, we again consider calibration.

However, there are other contentious issues with a Doppler beam as they are much wider than a Lidar beam.

The old Silver Eagle Radar used to have a beam of about 20x20m for every hundred metres of projection.

This creates confusion over which vehicle provided the speed reading.

I have run cases where a small vehicle such as a motorcycle was traveling in front of a speeding four-wheel drive and may not be the vehicle giving the speed reading.

Police always argue that if there are multiple vehicles in the beam then an error reading should show on the device but that is subject to question and scientific challenge.

We also consider whether there were multiple vehicles in the beam and whether there were many vehicles of a similar size. This raises the question of identity of the offending vehicle.

Use of mobile radars in areas where traffic isn’t sparse raises the issue of target identification.

Use guidelines

LIDAR radar speed gun pulled
LIDAR radar speed gun

Guidelines for the use of Lidar and radar have previously contained prohibitions such as at the bottom of a hill or within 50m of a change in speed zone sign.

Those restrictions on police have now been considerably eased in many jurisdictions, despite public criticism.

However that information may be relevant in a defence or in a plea of guilty.

Also, keep in mind that both these devices can be used in approaching or receding mode, which means they can hide in the bushes and activate the device once you have gone past them and shoot you from behind.

When defending these cases, especially the Lidar, some magistrates wish to have scientific evidence from the defence supporting the basis of the challenge to the instrument.

Disclaimer

This article is for reader information and interest only and is based on New South Wales law. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice.

Please be aware that every case is different and the matters raised may not be of specific relevance to your situation but may have a general application. You must seek specific advice tailored to your circumstances. Chris is happy to talk to anyone needing clarification. He can bet contacted on 0418 211074.

Source: MotorbikeWriter.com

Legal defences to a speeding fine

If you have been fined for speeding based on a police officer’s estimate or “check speed”, there may be several defences, says NSW traffic and criminal law specialist Chris Kalpage.

The Ducati-riding solicitor has previously provided our readers with tips on what to do when pulled over by police which expanded on our article “tips on what to do if pulled over by the police” and even these tips from the police.

Chris Kalpage evidence pulled Legal defences to a speeding fine
Chris on his Ducati at the track

Now, Chris follows up with information a lawyer seeks when defending a rider on a speeding fine based on an estimate:

Collecting information

As I stated in my previous article, photographs of where the incident occurred are a great help as it provides information about what may have obstructed the proper tracking of the vehicle.

Distances will also enable the calculation as to the distance over time and therefore the potential speed.

We usually attend the police station to see the police in-car video (ICV). That video will show in many cases what the officer could see and what you may have said when pulled over.

In a hearing, the officer may produce a transcript of what you said which is another reason to be wary of saying anything.

If it is an in-car radar breach, it provides us invaluable information of what speeds were registering, the time between observation of the vehicle and locking the speed, and any other matters that could potentially affect the Doppler beam or the reading on the radar, in addition to the patrol speed of the police vehicle. 

Check speed

A “check speed” fine is based on the speed the police vehicle was travelling.

In this case, examining the ICV will show whether the officer had the ability to maintain a consistent distance and speed to provide an accurate reading.

In many of these cases I have observed the highway patrol (HWP) vehicle being baulked by slower vehicles that the smaller, lighter and more nimble motorcycle has been able to get around unaware they are being followed.

When the HWP vehicle gets around the obstruction, seconds have gone past and the police have to accelerate hard to catch up.

In the heat of catching up, it has, on occasion, been that the speed alleged is the speed of the HWP vehicle and not that of the bike.

Similarly, if the HWP vehicle is parked on the side of the road and the officer has to accelerate in pursuit, there is often a degree of hard acceleration involved.

The ICV may also show whether the officer was able to view the bike consistently during the test or lost sight of the vehicle, which would put the check speed or estimate in question.

Example case

lLegal defences to a speeding fine
A rider on the Old Pac (Image: YouTube)

I ran a case on the Old Pacific Highway where the officer passes the bike and the radar showed the bike was travelling at the speed limit of 80km/h, as shown in the ICV.

The bike pulls into Pie in the Sky cafe and a number of minutes later the HWP vehicle pulls in. The officer gets out and starts yelling at the rider and charges him with speed over 45.

When I examined the ICV it showed the bike had travelled past the HWP vehicle at 80km/h but more importantly the police vehicle had done a u-turn and did not see the offending motorcycle until it was pulling up.

So how was an estimate or check speed of more than 45km/h made in the absence of seeing the vehicle?

More importantly, why had the HWP been unable to catch up to the bike, which was the other issue, relied on by police seeing the PV had been hitting speeds of 140-150km/h.

On closer examination of the video it was seen that the HWP vehicle was held up when doing its u-turn by several cars pulling out of Brooklyn, including a learner driver who held up the police by a considerable amount of time.

As many riders are aware, if you give someone a 15-second rolling start at the track, it takes a long time and a lot of speed to catch up. We obtained scientific calculations relating to this, which established that the bike could not have been travelling at the speed alleged. Our client was successful at the hearing.

Chris Kalpage defences
Chris Kalpage sets up for a track session

Officer’s estimate

A police officer’s estimate is the least reliable assessment of speed.

Observing the ICV may give us information as to time and distance that the officer had to make their assessment.

I ran a case where two bikes crested a hill on the Putty Rd at the same time as a police vehicle travelling in the opposite direction. The officer saw the bikes and locked on to their speed within a second.

They did not allow for three seconds of observation and testing with the radar, nor did they allow for multiple vehicles in the beam.

When that was challenged, the officer relied on his estimate which was dubious because of the short observation time as the bikes went past.

At the hearing, the officer conceded a lesser speed and our client retained his licence.

The longer the observation, the greater the accuracy of the estimate.

If an officer is coming around the corner as you are tipping in going in the opposite direction we have to challenge the speed estimate over the length of observation time.

Often it is based on a momentary snapshot and preconceived ideas based on the rider’s posture on the bike, noise, etc, not hard facts. Therefore, it is subject to challenge.

Technology

Potentially more accurate forms of speed assessment such as lidar and radar needs more careful analysis which will be covered in a future article.

Disclaimer

This article is for reader information and interest only and is based on New South Wales law. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice.

Please be aware that every case is different and the matters raised may not be of specific relevance to your situation but may have a general application. You must seek specific advice tailored to your circumstances. Chris is happy to talk to anyone needing clarification. He can bet contacted on 0418 211074.

 

Source: MotorbikeWriter.com

Holiday riders caught on covert TruCAM

Brisbane riders who spent Wednesday’s Ekka Holiday riding the famed Mt Glorious Rd may find they have an unwelcome TruCAM speeding fine in the mail in the next couple of weeks.

This video was recorded by rider David Englebright, showing police in the bushes using the TruCAM hand-held laser digital camera to record speeding offences.

Holiday surprise

“Being a public holiday in Brisbane a lot of people were out enjoying a drive or ride over Mt Glorious,” he says.

“They will get a rude shock in a few weeks.

“Little did they know a policemen was hiding in the bushes of the far side of Mt Glorious on a downhill selection of road with a TruCAM taking pics of vehicles going down the hill.

Video TruCAM
David on his Triumph

“This is a section where a billy cart would do more than 60km/h.

“This is no deterrent to speeding, just revenue raising.”

While there is no longer any requirement for speed camera detection signs, the Queensland police website clearly states: “It is not the policy of the Queensland Police Service to deliberately conceal speed cameras.”

Covert concerns

This is yet another incident which may spark debate over the lack of speed deterrence in covert operations while others will argue “if you’re not speeding, you have nothing to worry about”.

Queensland Police Union president Ian Leavers says these “sneaky” devices do not reduce the road toll nor stop motorists from speeding.

“Getting a ticket in the mail up to a month after speeding when you can barely remember even where you were back then, has no effect and is quite rightly cynically viewed as revenue raising,” he said.

RACQ technical and safety policy spokesman Steve Spalding says they also prefer a visible police presence.

“Our members have repeatedly told us that over the years, they much prefer to see a police officer use a marked vehicle, not just for speeding, but for all of the other problem behaviours that we see on the road,” he says.

Is covert detection legal?

Police using covert TruCAM laser speed camera impossible
Police using TruCAM laser speed camera in an unmarked car with tinted windows

Well, yes and no. It depends on the state and how the speed detection equipment is deployed.

We asked police in every state for their policies on covert speed detection and most replied.

Victoria Police say mobile speed cameras are “not deployed in a concealed way”, but didn’t answer questions about handheld devices and cops hiding in bushes.

South Australia Police say they make “no apologies about using covert, camouflaged cameras to detect dangerous road behaviour”.

WA Police basically told us it was none of our business: “We use various tools to assist in our traffic enforcement capabilities.  We will not be providing details of specific tools or methodologies.”

NSW Police say they “use a range of enforcement strategies to assist in reducing road trauma”. But, like the WA cops, they say it’s none of our business.

“For operational reasons it would be inappropriate to discuss the guidelines surrounding these strategies. If riders and drivers observe the speed limits, then they have nothing to be concerned about,” they say.

Queensland Police are a little vague, telling us the Queensland Camera Detected Offence Program “utilises an evidence-based mixture of covert and marked camera operations”.

MUARC report

Police Covert speed camera
Somewhere in there is a cop with TruCAM!

Motorists, police unions and motoring groups are fighting a losing battle against covert speed detection.

Politicians and police typically cite a Monash University academic and an Auditor General’s report that back covert speed cameras as more effective at reducing general speeding than high-visibility cameras.

Monash University Accident Research Centre professor Max Cameron says high-visibility speed cameras are only good for reducing speed at a black spot.

Mobile speed cameras were originally introduced to reduce speed at black spots. NSW still has very prominently signed fixed and mobile speed cameras, Western Australia is now trialling more visible speed cameras and England is going all-out to make the cameras much more visible.

However, Queensland has removed the signs warning of mobile speed cameras and a report by Queensland’s auditor-general found they are not always deployed at the right time, in the right location, or in the “right mode” (not covert enough).

The report says only 16.3% of mobile deployment hours is covert because police want to avoid perceptions of revenue-raising.

It recommends that a high percentage of covert deployment would prompt a general deterrence to speeding.

Professor Cameron agrees: “… if you’re trying to affect speeding all the time then the best idea is to make sure the cameras aren’t predictable or apparent and to operate them covertly,” the professor says. “The idea of being conspicuous is really in the wrong direction.”

Source: MotorbikeWriter.com

Higher speeding fines for the rich?

Is it time for Australia’s speeding fine system to be overhauled so the rich don’t get away with comparatively light fines while working Aussie motorists pay among the highest fines in the world?

According to British website GoCompare, Australians rank sixth in the world with the highest fines and 10th in relation to their average wage.

Ours is supposed to be an egalitarian and fair society, but how can it be fair for a motorist on a low wage to pay the same fine as a millionaire?

The average Aussie speeding fine for 21km/h over the limit is $401. South Australia leads with $771 fine, followed by NSW ($472), Queensland ($435), Western Australia ($400), Victoria ($332) and Tasmania ($163).

Top 10 fines for speeding 20km/h+

  1. Norway $1028
  2. Iceland $750
  3. Estonia $626
  4. United Kingdom $595
  5. Sweden $412
  6. Australia $401
  7. Switzerland $362
  8. Israel $282
  9. Netherlands $278
  10. Canada $275

Rich cop higher fines cops speed speeding radar fast speed camera licence rich

Several countries, such as Britain, Finland and Switzerland, have a system where speeding fines are linked to their wages.

The UK has just introduced a system where fines for excessive speeding have increased to 150% of their weekly income. It is capped at £1000 ($A1770), or £2500 ($A4435) if caught on a motorway.

After all, a rich pro footballer, celebrity or wealthy aristocrat would not be deterred by the average UK speeding fine of £188 ($A333).

Meanwhile, the UK has retained their minimum speeding fine of £100 ($A177) and motorists can chose to reduce that further by attending a speed awareness course.

Switzerland and Finland are much tougher on their rich speeders.

Finland uses a “day fine” system of half the offender’s daily disposable income with the percentage increasing according to their speed over the limit.

In 2002, former Nokia director Anssi Vanjoki copped a $A190,000 fine for riding his motorcycle 75km/h in a 50km/h zone.

But that’s not the world record speeding fine which was handed out in Switzerland in 2010 to a Swedish motorist caught driving at 290km/h.

He was fined 3600 Swiss francs per day for 300 days which worked out to almost $A1.5m.

Click here for our tips on riding in Europe.

Source: MotorbikeWriter.com

No safety in numbers for speeding riders

Riders who believe there is safety in numbers may be in for a shock when the whole group is pulled over by police and fined for speeding.

The issue was brought to our attention when three of a group of four Brisbane riders were recently pulled over and fined for speeding.

One of the riders decided to challenge the fine because he believed he was not doing the same speed as the others.

His lawyer advised hima group of motorcyclist travelling together can be reasonably considered as all travelling at the same speed, therefore the police only need to confirm one was speeding to be able to apply the same ticket to the rest of the group”.

The rider’s challenge was unsuccessful in Magistrates Court this week.

Queensland Police officer Senior Constable John Wilkins used an in-car radar to record the speed of three of the riders as they approached in the opposite direction to which he was travelling. He missed the fourth rider.No safety in numbers for speeding riders

To back up his observations of each rider’s speed, he used a bodycam to record the vision of the riders and a partial view of their speed on the dashboard-mounted radar unit.

Proving the speeds of several riders in a group seems impossible, yet the Magistrate in this case accepted the police evidence.

The defendant, who has already spent $5500 on the matter, plans to take it further.

No safety in numbersDangers of organised group rides numbers

Many riders may have similar stories of numbers of riders copping the same speeding fine while others may have examples of only one rider being pulled out of a group for speeding.

Both scenarios seem unfair and unjust.

Except for fixed speed cameras, which can pick up individual number plates to issue fines, there does not appear to be any mobile equipment that can do the same.

In this case, the officer backs up his evidence with bodycam video.

We asked police in each state about their operations and policy.

Only Victoria, Queensland and South Australia replied, while the others refused to comment on operational procedures or “hypothetical situations”.

Victorian Police say that “under the right circumstances it is possible for police to intercept and issue speeding infringements to a large group of motorcyclists”.

However, they won’t say what those “right circumstances” are.

It seems police are simply willing to fine group riders and accept the chance that it may be challenged in court.

Police repliesDayGlo Queensland Police helmet camera fined witnesses robbed

Here are the replies from Queensland and SAPOL:

Queensland Police utilise multiple types of speed detection devices that are capable of accurately detecting motorists exceeding the speed limit.  Police remind all road users to drive safely and not exceed the speed limit. A handheld laser speed detection device will enable accurate targeting of an individual vehicle travelling in a group of vehicles. A mobile radar will not allow the individual targeting of a vehicle travelling in a group of vehicles, however it does have a feature that will allow the device to display both the strongest signal returned and the fastest vehicle detected. With regards to both types of devices, it is incumbent upon the operator to make visual observations as part of a valid tracking history to confirm the speed detected is accurate. The observations of the officer are vital in supporting any prosecution.

SAPOL uses both hand-held laser and vehicle mounted radar devices to detect speeds, along with officers observations of vehicles. A laser device could be used to detect speed of a motor cycle rider in a group.  The detection could be used to prove that other persons in the group were exceeding the speed limit, if they were observed by police as travelling parallel to each other.”

Source: MotorbikeWriter.com

Riders warned on number plate scam

Police confirm that a number plate scam has landed some motorists with fines for speeding offences they did commit and unpaid toll notices they did not accrue.

They believe the offenders are using vehicle sales websites to find a vehicle matching the model of their owned or stolen vehicle.

Offenders then create a duplicate number plate on laminated paper and place it on their vehicle.

This plate scam has been around for a while but surfaced again recently in Brisbane when Moreton South Patrol Group received enquiries from motorists who received Traffic Infringement Notices in the mail for speeding offences.Fixed speed camera Victoria - fines suspended virus plate scam

Queensland Police say the motorists denied the speeding fine allegations and provided photographic evidence to prove the vehicle in the speeding offence photo was not theirs, even though it had their number plate.

“Further enquiries have revealed that many of these vehicles have been advertised on commercial car sale websites, exposing their registration details,” they say.

Recently police have also charged offenders with possessing false number plates that share the same number to similar vehicles owned by other people.

However, they have not said how many offenders have been apprehended nor how many speeding fines have been waived.

Plate scam not new

Police and transport departments in NSW and Victoria states the plate scam is not new, but are unable to supply statistics for speeding fines waived or offenders who can be charged with both criminal and traffic offences.

It is recommended that private sellers blur their number plates when they advertise their vehicle online.

In Victoria, Victoria Police, VicRoads, Department of Justice and Regulation, Fines Victoria, the Crime Statistics Agency and National Motor Vehicle Theft Reduction Council are investigating the misuse and theft of number plates.

If an individual suspects number plate misuse of any kind, they should immediately contact police,” VicRoads suggests.

South Australia Police say it has not affected motorists in their state. Tasmania and WA authorities did not reply to our inquiries.

Unpaid tolls

The scammers have also been using tollways with the video recognition fee going to the registered owners of the plate.

Kingaroy rider Paulette Devine copped a $10.78 fee for an unpaid $2.28 motorway toll when her Kawasaki Ninja 250 was parked in her garage more than 200km away.

plate scam
Tollway photo of Paulette’s plate on another bike

She bought the Ninja in July 2017 through Gumtree.

We contacted Queensland tollway company Linkt who confirmed they had waived Paulette’s toll.

Linkt is owned by Transurban which also owns CityLink in Melbourne and six tollways in Sydney.

(Click here to find why tunnels are the top traps for speeding fines.)

In fact, they also waived a second unpaid toll after they found the same number plate had been used on a different bike.

plate scam
Second tollway photo (they take two photos, one from in front and one behind)

They confirmed that “some people who complain regarding this are being investigated”.

Linkt would not reveal how many are being investigated.

Motorcycle riders are particularly vulnerable to this plate scam where tollways use video pate recognition for motorcycles instead of a transponder.

Riders should check their next toll statement to ensure that all toll fees are legitimate.

If you find an incorrect charge, email the Transurban customer resolution team at: resolve@transurban.com

Do not simply fail to pay the fee as the charges will rise even more.

Source: MotorbikeWriter.com

Rider challenges impossible speeding fine

A rider is challenging a speeding fine he says is impossible because it claims he was doing 150% of the posted speed when he was riding uphill around a corner towing an 80kg trailer.

Gerard Chee, 61, of Bribie Island, says he can’t remember the last time he copped a speeding fine.

The incident was caught on a covert fixed speed camera on November 11, 2018, on the uphill section of Mt Mee north of the lookout.

It’s a notorious stretch of road that police stake out to catch speeding riders.

Impossible speed

Gerard Chee challenges impossible speed fine Harley-Davidson XR1200 trailer
Gerard’s rig

However, Gerard says it was impossible for his Harley-Davidson XRE1200 towing an 80kg trailer to be traveling at 90km/h in the 60km/h speed zone.

The offence notice arrived about two weeks later. The fine is $435 and four demerit points.

“I wasn’t game to go back up there and see if I could sit on any corners at 90km/h with the trailer in tow,” he says.

“However, I did a run up through that range at 60km/h to see how many I could do easily do at that speed.

“In fact there were only two corners I could do. The rest were down about 50 to 52km/h.”

Gerard says his Harley has only been cosmetically modified with no performance updates.

Gerard Chee challenges impossible speed fine Harley-Davidson XR1200 trailer
Gerard and his XR1200

“With that trailer, it is impossible to do 90km/h,” he says.

Gerard had the photo from the offence notice printed out and sharpened to see more detail.

“If you look at the picture and the corner I’m exiting it’s only a few metres before I’m into the next sharp corner,” he says.

“I was trying to imagine hooking into a sharp turn like that with a trailer on; I wouldn’t do it if they paid me a million dollars.

“The camera has got to be inaccurate.

“I suggest anybody who got a ticket at the same time should challenge it because it is wrong.”

He has not yet contacted police to say he will challenge the fine as he is waiting on legal opinion from Maurice Blackburn Lawyers.

Covert camera

Gerard says he did not see the speed camera and disagrees with them being covert.

“I saw nothing,” he says. “Covert speed cameras are morally wrong.

“They have added a clause in the legislation that they don’t need to be in plain sight if it is in the interest of public safety.

“I’ve heard they now hide in unmarked vehicles and even stand in the back of a horse float.

Police using covert TruCAM laser speed camera impossible
Police using TruCAM laser speed camera in an unmarked car with tinted windows

“That can’t be right. Fair enough they should give a fair warning.

“If they hide them, they better trust their equipment to be infallible.”

Source: MotorbikeWriter.com

Cops withdraw Lidar speed gun fines

South Australia Police is temporarily suspending use of the Lidar speed gun and withdrawing 150 speeding fines after three court decisions found police can misuse the handheld guns.

The three defendants charged with speeding detected by police on Lidar guns had their fines overturned.

Now, SAPOL is temporarily withdrawing Lidar guns until legislation is amended to resolve the legal issues with regard to the evidentiary certificates.

They are also withdrawing 125 speeding fine prosecutions.

South Australian Ride to Review spokesman Tim Kelly says anyone who copped a Lidar speed fine and has not yet paid should apply for a review.

Contact lidarenquiries@police.sa.gov.au or write to SAPOL addressing the request to Expiation Notice Branch, GPO Box 2029, Adelaide, SA 5001.

Impact for other states?

While the judgments were delivered in the South Australian Supreme Court, they could have an impact for all states and territories if the calibration of the guns is questioned.

However, there is no movement yet by other states to withdraw Lidar guns.

The three decisions were all based on an argument put forward by lawyer Karen Stanley of Stanley Law. Her full statement on the judgments is included in full at the end of this article.

LIDAR radar speed gun
Karen Stanley

The judgments are based on a previous case run by Ms Stanley in 2016 case where speeding charges were thrown out because of the police calibration methods for the LIDAR hand-held speed gun. In one of the three recent cases, a motorcyclist was recorded riding 126km/h in a 60 zone in Adelaide.

“My attack was to the certificates that prosecution uses to prove that the guns were accurate,” Karen says.

Lidar gun ‘not at fault’

LIDAR Low speed threshold a danger hidden demons lidar
LIDAR is used around the world

She points out that the Lidar guns are not necessarily inaccurate or unreliable, but that the police method of calibration, and the way police certify their accuracy, is at fault.

Whether the judgments will apply across all states and territories will depend on the wording of the certificates and what the law says, she says.

“However, I expect that the broad principles His Honour addressed in the substantive case of Police v Hanton, will apply in all states,” she says.

The Crown may appeal against the judgments so until that time has lapsed, it would not be appropriate to draw conclusions about the future of speeding charges from these judgments” Reviewing methods

Justice David Peek criticised South Australian Police for failing to change their testing system since the 2016 verdict.

He wrote that police appeared willing to “accept the odd setback in terms of a not-guilty trial because the cost of that is less than fixing the system”.

There is no word yet from government on changes to legislation to allow police to start using the guns again.

Meanwhile, SAPOL say they will continue to use other “well-established speed detection options” such as hand-held radar devices and fixed and mobile speed cameras.LIDAR radar speed gun

Stanley Law statement regarding South Australian Supreme Court Judgments

  • POLICE v HANTON [2018] SASC 96
  • POLICE v MILLER [2018] SASC 97
  • POLICE V HENDERSON [2018] SASC 98

On Thursday 19 July 2018, the South Australian Supreme Court published three significant judgments about the use of hand held LIDAR speed guns to detect vehicle speeds. These cases all relied on the argument successfully raised in Police v Butcher, a 2016 Supreme Court decision that resulted in speeding charges against the defendant being dismissed. While the individual cases are complex, the unifying issue in each was the reliance by prosecution on a certificate to prove the accuracy of the speed guns used to detect the speed of the defendants’ vehicles. Justice Peek found that the certificate relied on by the prosecution was not capable of proving the accuracy of the speed gun to within the margin of error stated in the certificate.

To be clear; the Supreme Court did not say that the speed guns were inaccurate. Rather, the Court found that prosecution could not prove that the devices were accurate by relying on the certificate. Speculation on social media that the judgments have “proved” that speed guns are inaccurate and unreliable, is incorrect.

There is always a presumption of innocence and prosecution must prove, beyond reasonable doubt, that the offence was committed. One of the things that prosecution need to prove for speeding charges is that the device used to detect the vehicle is accurate. It would be cost prohibitive for prosecution to prove the technology behind the speed devices in every case. This would require experts to give evidence at every trial on how the devices work. To simplify this, the law in Australia allows the prosecution to rely on certificates, signed by a senior police officer, that certify the accuracy of the speed gun used. That certificate then becomes proof of the accuracy of the speed gun and the onus then switches to the defendant to provide “proof to the contrary” of what is certified.

While it may appear that this shifting of the evidentiary burden means that in speeding cases the defendant has to prove that they are not guilty, in actual fact, this only occurs once prosecution have proved that the device is accurate. It’s the certificate that prosecution relies on to prove this. The burden of proof only switches to the defendant once there is proof of the accuracy of the device.

The argument in the 2016 case, and in each of the three judgments handed down last week, was that the prosecution could not rely on the certificate because prosecution could not prove that the gun was accurate to the extent certified in the certificate, ie, within a margin of +2/-3kph. Without the certificate, there was no evidence of the accuracy of the device and therefore prosecution could not prove the speed of the vehicle. This is why the alleged speed of the defendant was irrelevant. For these purposes it does not matter whether the alleged speed was 5kph over the speed limit or 100kph over the speed limit.radar police speed camera demerit hidden lidar

Speed guns are required to be calibrated every 12 months in accordance with the Australian Standards. This involves an extensive process of testing the gun in a simulator. When a speed gun is calibrated, a report is issued which states that the gun is accurate to within a specific margin of error.

In addition, police are required to perform a number of daily tests, as prescribed by the manufacturer. These tests are recorded as pass/fail. The law requires that these tests are performed on the day that the device is used. The results of these tests are then used when producing the certificate.

In each of judgments published in July 2018 Justice Peek held that prosecution could not rely on the certificate because the daily testing by police doesn’t show that the devices are accurate to within +2/-3kph. The finding in each of these cases is the defendant did not need to prove that the device was inaccurate, but only that the daily testing done by police didn’t prove that the device was accurate to the extent claimed in the certificate. Without the certificate the prosecution was unable to prove the speed of the vehicles.

In addition, Justice Peek made a number of criticisms of the current testing regime of speed detection devices, and the circumstances under which the certificates are issued. Justice Peek further expressed concern that despite warnings in 2016 (Butcher) and 2017 (Henderson), the prosecution of speeding charges has continued without addressing the issues raised in the earlier cases.

SAPOL has issued a statement confirming that they are assessing the judgments “to fully comprehend if changes need to occur”. These judgments make it abundantly clear that changes need to occur. While SAPOL and prosecution continue to prosecute speeding charges in the manner they have to date, defendants will continue to have speeding charges dismissed. The argument first raised in Police v Butcher is clearly not a “one-off” as stated at the time.

The judgments handed down last week are lengthy and complex and will require further analysis in order to determine what ramifications these judgments have beyond the individual cases, although it is already clear that the broader implications are significant.

There is some commentary on social media about what impact these judgments will have on expiation notices issued since SAPOL was first put on notice about problems with relying on the certificates. At this stage it is too early to speculate on this.

Source: MotorbikeWriter.com