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 finebecause he believed he was not doing the same speed as the others.
His lawyer advised him “a 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.
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 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 replies
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 devicecould 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.”
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.
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.
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.
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.
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 [email protected]ov.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.
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 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.
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.
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.
