Tag Archives: Tips on laws

High speed leads to dangerous charges

Riders who are fined for high-range speeding over 45km/h are often also charged with driving in a “manner dangerous”, says NSW traffic and criminal law specialist Chris Kalpage.

Our contributing lawyer says the extra charge is often based on the speed which may not be “objectively dangerous”.

Chris has previously addressed the issues of dangerous driving, negligent driving causing death or grievous bodily harm and a charge of negligent driving resulting from a crash. We suggest you read this in relation with this. See those articles at the end of this article under the heading “Stories You May Also Like”.

In this article Chris addresses the issues of charges of “Speed Dangerous” and “Manner Dangerous” arising out of a high-range speeding charge.

Dangerous charge

Often I will be approached by riders/drivers who have been charged with an over-45km/h speed and have also been given a court attendance notice for ‘drive manner/speed dangerous’.

The basis of the charge is as the title implies the manner and or speed involved in the driving, but sometimes it is purely based on the speed itself, which on careful assessment may not be objectively dangerous. Similarly the manner of driving on cross-examination may not be able to be sustained.

The test as to whether someone was driving in a manner dangerous focuses on the potential danger, rather than whether the actual danger was realised or not. For instance, high speed in a residential area may satisfy a high potential for danger compared with high speed on a freeway in the early hours of the morning.

Severe penalties

The problem in a charge like this is that the penalties can be quite severe on conviction, which can include a period of incarceration and/or a period of disqualification being an unlimited maximum, an automatic of three years, to a minimum of one year.

The other issue is that your licence and potentially plates can be taken on the spot which for some of my clients has resulted in them being stranded in the middle of nowhere.

These cases are serious and we will often start with an investigation of the in-car video (ICV) to view what the officers could see.

Often what they could see is quite different to what they believed they could see. For instance, hearing a bike or car with an aftermarket exhaust that seems loud and their belief accordingly that it was going fast.

Any witness in any criminal case can be influenced by their bias and make assumptions based on their particular bias in what they believe they saw. It is only when you see the ICV that you may get an idea as to what the officer actually saw and what is the filling in of gaps based on their bias.

Often the case involves careful cross-examination of each segment of the alleged offending behaviour to establish that the driving/riding does not constitute manner dangerous.

Police pursuitCops police speed speeding extended

I have had cases where a motorcycle is travelling above the speed limit and the police vehicle, some distance behind has seen the bike and then pursued it for a number of kilometres.

A particular case I did involved a bike traveling down from the mountains on the M4 with an unmarked police car traveling some distance behind.

Initially it was obvious from the ICV that the police officer was targeting another car but then when he saw the bike he decided to target that. The bike was traveling smoothly but at a speed in excess of the speed limit.

The police officer had to speed to around 180km/h to catch up. The bike was passing vehicles smoothly, but the police vehicle was flying up behind vehicles causing cars to dive everywhere.

The officer was of the view that it was my client’s riding that caused vehicles to dart in different directions which was questionable at best, as was the police officer’s estimate of speed.

Despite painstaking cross-examination of the police officer and reference to the video section by section, the court convicted my client. However, the magistrate took into account those issues that had been raised in cross examination and additional submissions made in sentence and gave him the minimum period of disqualification.

Had the Magistrate not observed the cross examination of the police officer and a plea of guilty had been entered based on the police facts as alleged the outcome would have been far worse. Accordingly in some instances there is a tactical basis for challenging the evidence to highlight the exaggeration by police.

Defending two chargesspeed camera radar speeding fines rich rich

Often a manner/speed dangerous charge based on excessive speed will include a charge of speed over 30 or over 45km/h.

We defend these charges with the intention of entering a guilty plea to the less-serious excessive-speed charge (if applicable) in an effort to get police to withdraw the dangerous driving primary charge.

In one case, a rider in a remote country location was pulled over by police using a Lidar. He was alleged to be riding more than 45km/h over the limit and riding in a dangerous manner. His licence was confiscated on the spot and he was charged by field court attendance notice, having him stranded in the middle of nowhere.

We subsequently mounted a defence and ran the case at Holbrook Local Court. Based on our argument that based on the location and time of day combined with traffic conditions it wasn’t dangerous. The prosecution agreed to withdraw the speed dangerous at hearing on a plea of guilty to the speeding offence which was the difference between a potential disqualification of six months as opposed to three years.

In many similar cases, a strong defence involving scientific evidence can achieve a similar compromise.

The court has to take into account all the circumstances of the case, including the nature, condition and use of the road, the amount of traffic, and any obstructions or hazards on the road. When all this is raised by the defence and taken into consideration by the prosecution it may make sustaining a charge of manner/speed dangerous untenable.

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 be contacted on 0418 211074.

Source: MotorbikeWriter.com

How rona riders may self-incriminate

With riders facing hefty fines for breaking the coronavirus Home Confinement Direction, some have suggested rona riders should reserve their rights to silence when pulled over by police.

While exercising your right to silence is usually a good idea, it might not be of much assistance here, says Brisbane lawyer Andrew Evans.

Under the law, police have the power to ask you basic questions and you’re breaking the law if you refuse to answer.

Those basic questions are: 

  • Your name and address; 
  • Date and place of your birth (in drug matters); 
  • Other questions regarding broken traffic laws or whether you’ve seen an accident; and
  • Other questions police can ask under special laws.

“So if you refuse to say where you are going, the police cannot prove you have committed an offence,” suggests one reader.

Unfortunately where you are going is not an element of the offence; it’s leaving your place of residence and if they have found you out riding then they can make out that element regardless of what you do or don’t say.

Click here to complete our three-minute survey on attitudes to the pandemic!

Standard practiceCops police speed speeding extended

Andrew says standard legal advice is to exercise your right to silence “because they will use anything you say against you”. 

For instance, if you get pulled over speeding there is a standard series of questions police ask:

  • Do you have a reason for speeding?
  • Do you know why I pulled you up?
  • Did you know you were speeding”

“All of them are intended to illicit a response that indicates guilt so you are always better off saying nothing,” he says. 

“This is because ordinarily when you go to court it is up to the police to prove your guilt not for you to prove you are innocent.  

“If you get caught speeding and you stay silent, go to court and there is an issue with the evidence so you get the radar evidence thrown out they then have nothing.  

“If you don’t to give any evidence, their case fails, but if you made an admission at the time of the offence that can come back to bite you.”

Rona riders

However, rona riders should be aware the current situation under the Home Confinement Direction is “a bit different”, Andrew says. 

“It makes it unlawful to leave your residence unless you meet the criteria for leaving set out in the direction,” he says.

“So if a police officer asks why you are out and you refuse to answer you are almost guaranteed to get fined because he or she will assume you have no reasonably necessary reason to leave.

“That doesn’t mean you are compelled to answer. You can refuse. But it probably increases the risk of getting a fine rather than a caution.

“So if you have a justifiable reason, like going to the shops or going to work, you should tell them as it will most likely save you having to deal with it at court later.

“If you don’t have a reason then you might be better off exercising your right to not answer and then take legal advice about any fine they issue.”

Source: MotorbikeWriter.com

Do I Need a Lawyer after I’m Hurt in a Motorcycle Accident?

(Contributed post for our North American readers)

In 2014 the National Highway Traffic Safety Administration (NHTSA) recorded more than 92k motorcycle accidents. In California, for instance, the motorcycle fatalities increased from 490 in 2014 to 540 in 2016. Additionally, the deaths for not wearing a helmet increased rose up by 2 figures to 25 in 2016 from the 23 in 2015.  Even more damning is that this figure is not getting any better, and if anything, the recent statistics show an increase in the number of motorcycle accidents.

California motorcycle fatalities increased 11 percent from 494 in 2015 to 548 in 2016. Deaths from motorcyclists without a helmet risen by 9% from 23 in 2015 to 25 in 2016. California’s motorcycle fatalities accounted for 15.1% of total motor vehicle deaths in 2016.Sep 16, 201

That said, motorcycle accidents are unique in that, in most cases, they result in serious injuries.

Now, if you’ve been involved in a motorcycle accident, I know you might be wondering whether you need a motorcycle accident lawyer in Los Angeles, CA.

This is particularly true if your insurance has already contacted you or even another party is offering to compensate you for your injuries or damage. In such cases, you might be wondering why it’s even necessary to retain an attorney-after all, it seems like a waste of money, given that you can also represent yourself, right?

Wrong.

We recommend that you retain a lawyer, regardless of the accident circumstances.

Beyond legal representation, there’re other numerous ways that an attorney can help you, and having an attorney guide you the legal process is essential for the success of your case.

If you’re still on the fence on whether you need an attorney for legal representation after a motorcycle accident, stay with us and learn why.

Focus on Recovery

Most motorcycle accidents are grisly and often result in serious injuries.

In such instances, the last thing you would want is to focus on your compensation rather than your health and fast recovery.

By retaining an attorney, you’ll have the peace of mind that they’re representing your interests fully, and in turn, you’ll have time for a fast recovery.

Determine whether you have a Legal Claim

Motorcycle accidents are different, and not every one of them gives you the right to sue for compensation, and this is regardless of whether you were injured or not.

In some cases, you’ll be surprised to find out that you’re culpable and risk getting jailed.

So, before it gets to this point, retaining an attorney will help determine whether you have a right to sue.

They’ll easily go through the facts, and determine whether it’s worth pursuing the case.

Take Your Case to Trial

Not all motorcycle accident cases result in a settlement, and at times, the cases need to go through a trial, which in most cases is challenging, and it requires legal expertise.

If a case goes to trial, for instance, it will require you to do the filling, attend the preliminary hearing, collect evidence, question evidence, and collecting opening/closing statements.

As you can see, some of these processes are tiring and challenge to perform, especially if you don’t have the legal expertise.

An attorney, however, understands how to strategize and access evidence to the court records, and examine witnesses in such a way that will set you up for success.

Protection of Legal Rights

It doesn’t matter whether you’re at fault or even whether you’ll get compensation for the damages, but retaining an attorney will ensure that your legal rights are not violated.

Remember that an attorney understands the law and has specialized in the legal space, meaning they’re cognizant of the laws and when your legal rights are violated.

Negotiate Fair Settlement

Coming to an amicable figure in a settlement process is always a challenging process, especially if you don’t understand the art of negotiating.

This is not to mention that some of the insurance providers usually use underhand tactics,  to cancel your compensation or offer a less-than amount.

Remember that a majority of the insurance entities are in a business like any other and are in it to make profits. In most cases, they’ll try to keep the overhead costs to a minimum.

With an attorney, however, they’ll negotiate a fair settlement offer that accurately reflects the value of your case.

Here, for instance, your attorney will look at several elements and beyond the injury claim; they might even include lost wages, emotional detachment, loss of a loved one, and even the pain factor.

Source: MotorbikeWriter.com

Crashed riders risk negligent charge

More and more riders are being charged with negligent driving (riding) after a single-vehicle crash, says NSW traffic and criminal law specialist Chris Kalpage.

Our contributing lawyer has previously written articles about defending various charges and last time he addressed the issues arising out of dangerous driving and negligent driving causing death or grievous bodily harm.

He now tackles this increasing risk of a negligent driving charge for which penalties can be quite severe:

Chris Kalpage defencesChris Kalpage sets up for a track session

Negligent driving

The concept of negligence is whether the person charged was not riding in the manner of a reasonably prudent motorist, considering all the circumstances.

Often if police are called to a single-vehicle accident where the bike has come down there is a risk the rider will be charged with negligent driving.

Two cases I defended come to mind.

Case 1

Old Pac gets more ‘safety barriers’Riders on the Old Pac (Photo courtesy of Valley Images)

One morning my client was riding his Aprilia RSV on the Old Pacific Highway, tipped into a corner at below the speed limit and lost his front end on slippery leaf mulch. You could substitute that for moss, oil, gravel from filling in potholes, or anything on the road surface.

He dragged himself to the Armco and sat down, his leg was broken. To his surprise, a tow truck and ambulance stopped to assist. As he was traveling to Gosford Hospital he heard over the radio that they had picked up the wrong accident victim, so they stopped at the next accident scene some kilometres from where he had crashed.

While the paramedics were assisting the other rider, a highway patrol officer at the second scene spoke to my client while he was in the back of the ambulance. He asked what had happened and my client explained about the leaf mulch. The officer further interviewed my client in hospital.

My client subsequently received an infringement for negligent driving which we defended.

The police officer’s evidence was that my client had told him he had lost his front wheel on leaf mulch. However, the officer said he attended the site and there was no leaf mulch, inferring that my client was riding with negligence.

In calling for the officer’s notebook in cross examination of him, it was clear the officer had noted my client indicated he had lost his front wheel suddenly on hitting the mulch. In cross-examination of the officer it was established that the notebook was the totality of the content of the discussion with my client.  It was further conceded by the officer that my client had said nothing more.

It was conceded that there were many corners between where the officer saw my client in the ambulance and where the accident had occurred.

The obvious conclusion was that the officer could not correctly identify the exact corner of the crash and by inference had not attended the site as was stated. The officer’s questionable evidence was rejected, my client’s evidence favourably received and he was found not guilty.

Case 2

Oxley Highway businesses eventRiders on the Oxley Highway

Another client was riding his Ducati 748 down the Oxley Highway when he hit a wedge of tarmac, possibly caused by heat forming a lip in the soft asphalt. His bike was knocked into gravel on the opposite side of the road.

Again my client had a broken leg and the ambulance was called. A regional highway patrol officer turned up at the site about 20 minutes later. Again, he had not seen how the accident occurred and had no evidence from witnesses, but formed the view that as an accident had occurred my client must have been traveling too fast.

At the hearing, the prosecutor agreed with me that the highway patrol officer could not provide expert post accident crash analysis. That is the remit of the specially trained police crash investigation unit. The case was adjourned so representations could be made.

However, the officer chose to press on with the case. Even though the magistrate allowed the evidence — which I believe should not have been — he took into account the officer’s lack of expertise and was prepared to accept my client’s evidence. He dismissed the prosecution.

Conclusion

A mere accident does not automatically mean that the rider was negligent. The prosecution needs to establish that you were driving or riding without the standard of care and attention reasonably expected of the ordinary prudent driver.

Even if you run into the back of a vehicle that suddenly stops, it does not mean your manner of driving was negligent.

I defended a retired motorcycle highway patrol officer with significant riding experience who ran into the back of a car because he had to apply emergency braking right where there was a sudden change in the road condition. He was acquitted at hearing.

So, if you have to brake suddenly and do it on a patch of diesel causing you to run into the car in front that may not constitute negligence. The court has to take into account all the circumstances of the case as embodied in the legislation, a part of which is printed below:

NSW ROAD TRANSPORT ACT 2013 – SECT 117

Negligent, furious or reckless driving

117 Negligent, furious or reckless driving

(cf STM Act, s 42)

(1) A person must not drive a motor vehicle on a road negligently.

(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:

(a) the nature, condition and use of the road on which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,

(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).

(Editor’s note: This is a NSW law, but there are similar rules in most jurisdictions.)

This relates to the specific circumstances of the particular incident and this is one situation where every case is different. No two situations are alike so they require careful analysis. Don’t assess your case based on someone you know who had a similar situation and got a certain result, as you could be very wrong.

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 be contacted on 0418 211074.

Source: MotorbikeWriter.com

How double demerit points can affect you

Double demerit points apply from Friday (20 December 2019) in NSW, the ACT and Western Australia, affecting licensed riders not only in those states, but also Queensland.

The penalty period lasts until January 1 (inclusive) in NSW and ACT and January 5 in WA where one rider copped a hefty 14 demerit points and $1200 fine over the Western Australia Day long weekend in June 2019.

Traffic Enforcement Group officers tweeted the above photo of the fine after nabbing the rider at more than 120km/h in an 80km/h zone in Ravenswood.

Police noted on the fine that the rider told them: “She (his bike) was flooding and gurgling; just gave it a blat”.

His licence was suspended for three months.

Double points danger

Riders from Victoria, Tasmania, Northern Territory and South Australia passing through NSW, ACT or WA during any declared holiday period do not cop the double demerits.

Police cops speed speeding sensation annual demerit

However, Queensland riders should note that in certain circumstances they do apply.

The law in Queensland is that double points do apply to speeding offences of 21km/h or greater over the speed limit and seatbelt offences if they occur more than once within a 12 month period.

Lawyer Stephen Hayles of Macrossan and Amiet Solicitors says he has been asked by clients about the system after copping a fine in an applicable state.

“For example if you commit two speeding offences of driving 21km/h over the speed limit in a 12 month period, you will be allocated four demerit points for the first offence and four demerit points for the second offence plus an additional four demerit points,” he says.

“This means that you will have accumulated 12 demerit points within a 12 month period and you risk having your licence suspended.”

How demerit points are recorded

NSW police blitz demerit

Double points apply in NSW and ACT over the Australia Day weekend, Easter, Anzac Day, Queen’s Birthday, Labour Day and Christmas/New Year.

In WA, the double points apply on Australia Day (unless it falls on a week day), Labour Day, Easter, Anzac Day (unless it falls on a week day), Western Australia Day, Queen’s Birthday, and Christmas/New Year.

If a rider in another state commits a traffic offence in a state during a double-demerit period, the offence is recorded as a double demerit offence on their traffic history in the state where the offence happened.

The state licensing authority will then report the offence to the transport department in your state who will record the offence on your traffic history.

However, the double points will only apply in Queensland under the circumstances described above.

Choice of penalty

Stephen says that if you have committed a traffic offence recently and you receive a Queensland Transport notice that you have accumulated your allowed demerits, you will have a choice of a good driving behaviour period or a licence suspension for a period.

“When considering whether to agree to a good behaviour driving behaviour period and a licence suspension, it is important that a licence holder understands that accepting a suspension of their licence may preclude them from making an Application for a Special Hardship Order or an Application for a Restricted (Work) Licence for the next five years,” he warns.

If you are unsure about how many demerit points you have, you can search your record online at your state’s transport department website or call them and request a copy of your traffic history.

Source: MotorbikeWriter.com

8 Mistakes to Avoid After a Motorbike Accident

(Contributed article for our North American readers)

Having a motorbike accident can be a very traumatizing experience, you’ll be shocked, scared and confused which will make it more likely that you’ll make mistakes which can heart your chances to get appropriate compensation from insurance companies. That money is rightfully yours and you’ll need it to cover medical bills and make up for the damage done to your motorbike.

There’s a stereotype about bikers being risky drivers which isn’t actually true. People assume it is because they’re the ones that tend to sustain more injuries in accidents because the vehicle in itself offers less protection than a car. The problem is you’ll already be dealing with a bias against you so you need to be well informed and prepared in case something like this happens to you. 

Mistake #1:  Leaving the Scene of the Accident

This is incriminating behavior; it implies that you caused the accident and that’s why you don’t want to stick around. To avoid problems, you should stay at the scene, speak to the police officers honestly but without making any speculations regarding speed, distance or any other factors that might have contributed to the crash happening. 

Mistake #2: Apologizing

Again, incriminating behavior. You might be a really nice person who apologizes when other people step on your toes but in this case, it can be interpreted as an admission of fault. That’s not something you want to do in front of the other drivers, the police or any witnesses. 

Mistake #3:  Agreeing to Not Have the Accident Reported

The other driver might be able to convince you, in your confused state, that it was your fault and going through the hassle of reporting the accident to the police and getting the insurance companies involved will do you more harm than good. Well, that’s a terrible idea. First of all, he or she is more likely to say this if they know that it is, in fact, their fault and if you don’t report it and get everything on record you may lose any chance for compensation.

Mistake #4: Leave Without Gathering Evidence

If you drive a motorbike it would be best to keep a camera on it at all times but if that’s not possible, you want to at least take pictures after any accidents. You want to record your injuries and damage to your bike. You should also preserve evidence like your helmet and what you were wearing. You’ll need it later on if you have to build a case. Getting the contact information from witnesses is also advisable because your attorney can contact them for you.

Mistake #5: Delaying Medical Care

Right after the accident, you’ll have a lot of adrenaline running through your body and you might not be able to accurately assess the severity of your injuries until hours or days later. That’s why it’s extremely important that you see a doctor as soon as possible. So, go to the hospital by ambulance or other means straight away. 

For one thing, by doing this you’ll be making sure you get the medical assistance you need. On top of that, you’ll have everything on record and you won’t give the insurance company the chance to throw doubt over your claims regarding the level of the health-related damage you sustained. Another decisive factor is to follow through with your treatment and keep all your appointments, since any gaps can be used against you.

Moreover, the legislation states that the injured party must seek to mitigate their damages and by following treatment you’re proving that you’re doing everything that’s asked of you to get better in the shortest amount of time. 

Mistake #6: Expecting the Other Party to Admit Fault

They might be just as sure of their innocence as you are, it’s human nature so you can’t really expect them to just roll over, admit they were the cause and deal with all the financial repercussions. That’s what would happen in an ideal world and wouldn’t it be nice if that’s how people treated each other? Unfortunately, that’s rarely the case. You’re better off not starting any sort of discussion about who is to blame with them, you might get angry and say something you’ll later regret or that they can use to undermine you.

Mistake #7: Be Naive About Insurance Companies

Your insurance company or the one of the other motorist will ask you to provide a recorded interview. Know that you have absolutely no obligation and you should decline doing so without representation since it might threaten your chances of getting compensation. 

It’s better to consult with a personal injury solicitor that can advise you on how to best protect your interests. People don’t realize that insurance companies are not looking out for them but for their drivers and their stakeholders. They have their own attorneys and adjusters to handle a claim right from the moment the accident is reported. You might think it’s better to cooperate with them every step of the way and all they’re trying to do is sort everything out to everyone’s advantage but, actually, it’s highly likely they’ll try to pay as little as possible.

Mistake #8: Post Information Regarding the Accident Online

As long as your personal injury claim hasn’t been resolved, you really should refrain from discussing the accident on social media. You might feel tempted to inform friends and acquaintances about your recovery but insurance adjusters can also access you profile and gather evidence to dispute claims. An online post or photo can be taken out of context and be interpreted in all sorts of ways you won’t like.  

Even if you’ve made some of these mistakes, it doesn’t mean you should lose all hope of getting what’s owed to you. Most riders will not be able to do everything perfectly after an accident since they’re human beings with emotional responses and can’t keep a cool head in all situations. Despite this, with patience, perseverance and the proper knowledge, they still manage to get a fair outcome.

Source: MotorbikeWriter.com

Number plate theft and cloning on the rise

Number plate theft and cloning of plates is on the rise, resulting in riders receiving speeding and parking fines and unpaid toll notices.

The National Motor Vehicle Theft Reduction Council says number plate theft can also be used to commit crimes such as petrol theft, robberies, house break-ins and drug trafficking.

Police are also reporting an increased detection of cloned plates with offenders using vehicle sales websites to find a vehicle matching their bike or a stolen vehicle.

Offenders are even cloning the number plates on laminated paper.

Cloning plate scam not new

Police and transport departments in several states say the cloning 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.Fixed speed camera Victoria - fines suspended virus plate scam

Police say motorists wrongly fined would need to provide photographic evidence to prove the vehicle in the speeding offence photo was not theirs.

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 the NMVTRC are investigating the misuse and theft of number plates.

The NMVTRC says about a third of all stolen plates are taken from vehicles parked on the street and 10% were from vehicles parked in a car park.

About 85% are stolen from metropolitan areas.

Unpaid tolls

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

Last year we reported on Kingaroy rider Paulette Devlin who 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: [email protected]

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

Source: MotorbikeWriter.com

Crashed riders may face serious consequences

Unlike drivers, any accident involving a rider and pillion is likely to have more serious consequences and a greater likelihood of a criminal charge as injury and death is more likely.

So says NSW traffic and criminal law specialist Chris Kalpage who has previously written these articles for us: tips on what to do when pulled over by police; defences to speeding fines based on a police officer’s estimate and defences to a Lidar speeding fine.

Now the motorcycling enthusiast solicitor advises on the serious consequences of being involved in a motorcycle crash:

Chris Kalpage defences
Chris Kalpage sets up for a track session

Serious consequences

Most people who have an accident where they are at fault face the consequences of, at least, a charge of negligent driving. Unfortunately unlike a minor car accident where driver and passenger are uninjured an accident on a motorcycle is more than likely to result in injury. If your pillion is injured you are at considerable risk of being charged.

I have acted for clients who have had accidents where their pillions have had deep cuts, broken bones and even died and the rider has been charged. Although, after a protracted court case, they have been acquitted.

In the case of death or serious injury, there are the serious consequences of facing jail time if convicted. Generally, if there is a death and a question of fault, the police are likely to charge and leave it to the courts to determine guilt or innocence.

Scientific evidence

The difficulty in these cases and the expense is the need for scientific evidence especially if there are no witnesses.

In one case, a rider and pillion were riding out by the northern beaches late one evening. A taxi driver who was travelling in the opposite direction said he didn’t see the bike — not that he was particularly paying attention — but heard it. As it had a noisy aftermarket exhaust he presumed it must have been going fast.

He saw sparks in his rear vision mirror as the bike hit the embankment. The pillion was high-sided into a tree. The rider’s body was smashed from top to bottom and how he survived the months of coma, hospitalisation and years of surgery and rehabilitation was a testament to his strength of character and determination.

Sadly his pillion died at the scene, the cause of the accident was uncertain but as a person had died he was charged. If convicted he would be incarcerated.

Not only was he recovering from catastrophic injuries and the fact that his friend had died, he now had all the stress of a court case that could take at least a year to complete.

No one had seen the accident, the rider who had a head injury had no recollection of the event at all.

The DPP who had pressure from the family and deep pockets as a government institution kept putting forward expert reports and theories which had to be countered.

Let alone witness statements from people who had seen a bike doing a wheelie 10km from the crash site. On a road that attracts a lot of riders, no one could identify the rider charged as the bike in question.

I got to the scene within hours of the accident and managed to have photos of the scene and debris left from the bike taken.

Spurious arguments

Various spurious arguments were raised by the prosecution:

  1. Because the radius of the curve was such that a bike could go around the curve at significantly greater than the speed limit the rider must have been traveling faster than the hypothetical speed. Our experts assessed the maximum potential speed that the corner could be taken at as much less. Further, the accident occurred before the corner. They also hypothesised that a mark on the road was a yaw mark and therefore the bike was travelling at a certain speed. It was again positively debunked by our expert. Eventually the best the prosecution could estimate was maybe 1km/h over the speed limit.
  2. The police in attendance stood up what was left of the bike and clicked down through the gears then saying that it was in fourth gear and because the analogue tachometer was at 7000rpm it was traveling at a certain speed.  This did not take into account that he had a reverse pattern gearshift and that analogue instruments can jump on impact and freeze.
  3. The remains of the bike were held by police at the station. I attended with an expert who did a forensic examination of the clutch cable that showed the likelihood that on pulling in the clutch and changing gear it snapped and momentarily locked the rear wheel, causing a loss of control. Since the pillion sits higher than the rider with limited hold, she was high-sided into the tree. Therefore, the accident may have been caused by sudden mechanical failure and not the manner of riding.
  4. The prosecution tried to argue that the bike had travelled off the road and up an embankment where the pillion was found because there was a black mark on a tree and the bike was black. As I had examined the area within hours and examined the embankment it was clear that the black mark on the tree was from a bush fire having charred the tree. Secondly, they relied on debris that appeared to be at the top of the embankment, which we established, did not belong to the bike.

However every time we debunked the DPP’s theories, they would get a new expert costing more money.

We then ran a committal proceeding in the local court for a number of days to attempt to avoid going to the District Court. The Magistrate in the local court threw out the prosecution case, making scathing remarks against the prosecution and awarding costs.

Conclusions

Early and careful investigation is vital, while jumping to simplistic assumptions is dangerous. If you wait until you are charged, which can be months later, the crash scene may have changed. The road may have changed, surrounding shrubbery that may have obstructed your view may no longer be there, nor those mysterious black marks on trees.

Secondly just because you lose control of your bike does not necessarily mean that you were riding in a dangerous or negligent manner, even if you are riding over the speed limit.

Finally don’t think it can’t happen to you no matter how careful you are. I have had to defend too many people who hopped on their bike that morning never for one moment thinking it would happen to them.

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 be contacted on 0418 211074.

Source: MotorbikeWriter.com

Keep your number plate and licence clean

Allowing your number plate to get dirty or actively obscuring or altering it could cost you a hefty fine, demerit points and maybe even jail!

A 50-year-old Irish rider recently copped a £600 (about $A1140) fine and nine demerit points for trying to evade detection by police by altering his Honda’s number plate with black tape.

His solicitor said the bike had been off the road for a year and he was on his way to the garage to get an MOT (Ministry of Transport roadworthy).

Likely story!

Number plate offences

tyre pressures
Rear mudguard prevents plate from getting dirty

In Australia, fines for an obscured plate vary substantially state to state from about $100 to almost $700 and up to three demerit points.

The offence can be worded as something like “using a vehicle with an altered, incorrect or misrepresented number plate”.

That can include a number of issues such as simply allowing your number plate to get dirty.

Telling the cop who pulls you over that you had no idea it got dirty is not an excuse as you are obliged every time you use a vehicle to ensure it is in legal, working order.

Fraudulent plates

However, it can get worse.

If the plate has been fraudulently altered (as in the mock photo at the top of this article), the penalty is up to $1000 or two months’ jail.

The tougher penalties are due to the use of stolen and fraudulent plates to commit crimes, not just evade speed cameras.

I knew one flexible rider who used to stand up and extend his right foot back to obscure his plate as he passed a roadside speed camera.

Another rider had his plate on a rotating mechanism which he could activate via a switch on the handlebars to rotate the plate out of sight.

Both could have been fined for fraudulently obscuring their plate and face the harsher penalties.

There are also various clear plate covers that are claimed to prevent a speed camera from getting a clear image.

Some “invisible” sprays (including hairspray) are also claimed to legally obscure your plate from a speed camera.

Number Plate
Hairspray leaves a detectable gummy residue

Most of these only claim to “help avoid detection”. They offer no guarantees.

Not only do these scam products not work with modern no-flash speed camera technology, but you can be fined for fraudulently obscuring your plate.

You may think police won’t notice, but they are aware of these scams.

If they pull you over, even for a licence check, one of the first things they check is for these devices and sprays which leave a telltale gummy residue.

Police in several states couldn’t give us exact numbers for motorcycle plate fines, but they claim it is common.

Source: MotorbikeWriter.com

Helmet safety brake light may be illegal

A brake light that sticks to the back of a helmet and alerts tailgating drivers the rider is slowing down may be illegal in some states.

The Brake Free light is currently being crowd funded and Aussie rider Raphael Chan has signed on to receive and test the unit.

It consists of a slim unit stuck with adhesive tape that lights up whenever the rider slows, whether using the brake or just engine braking, as is often the case.Helmet safety brake light may be illegal

However, he contacted Motorbike Writer to find out if it is legal in Victoria after reading articles on our website about fines for having a camera attached to the helmet.

“Asking a police officer at the local cop shop hasn’t shed any light. He was just guessing at the answer and gave the safe answer of ‘no’ but to ask VicRoads,” he says.

“I’m trying to find out if it is a clear cut black and white NO to sticking anything to your helmet, or if it’s still open to interpretation depending on the policeman or under review for clarification.

“If it’s still a grey area, then I am prepared to risk a fine and increase my safety by testing the unit.”

Illegal in some states

Our understanding is that Victorian and South Australian police still believe it is illegal to attach anything to a helmet by any means, while NSW Police have held off issuing fines until Australian helmet rules are homogenised across all states.

That could take some time.

Meanwhile, Raphael and other supporters of this safety device to avoid being rear-ended are in a legal abyss.

The device is similar to the Smart Brake Light that we sell on our website because we believe it is a key safety feature.Helmet safety brake light may be illegal

However, that does not affect the compliance of helmets.

‘Expert advice’

We asked police and relevant departments in all states for their advice on whether Raphael would be fined for wearing the helmet.

A few replied and none was particularly certain.

Queensland Police HQ flat out refused to give legal advice. That’s strange since their officers give legal advice when they issue a fine!

How can a police officer on patrol confidently issue a ticket? How can they possibly have more knowledge on all the relevant road rules and laws than police HQ and relevant transport departments?

However, stranger things have happened and police have been found to incorrectly issue fines before.

Interestingly, Queensland Police have no concerns about action cameras and a previous state Police Minister actually suggested riders wear them for evidential reasons!

VicRoads just quoted us the usual Australian Standards stuff.

When we pointed out that the standard only applies at the point of purchase, they agreed.

They also admitted there is “no road rule specific to brake lights fitted to helmets” and said it would be open to police interpretation of the rules.

Great. So, no firm decision!

Novelty coversNovelty santa xmas motorcycle helmet cover

We had similar concerns over the legality of wearing novelty helmet covers such as Santa hats won on charity toy runs.

On both issues, most police say that so long as the attachment doesn’t interfere with the function or safety of the helmet it can be attached.

But how do we know it won’t affect the safety of the helmet?

Safety experts say helmets are designed so that in a crash and slide, nothing will catch on the ground and rotate your head, leading to neck injuries. But there is no empirical evidence to prove it does adversely affect safety.

Victorian Police were the sole objectors to Santa and other novelty helmet covers.Novelty santa xmas motorcycle helmet cover

On the issue of the brake light, they said helmets must comply to the Australian Standards.

“As far as I am aware (the standards) do not allow for the attachments to motorcycle helmets to be made,” the spokeswoman said.

South Australia police said it was an ADR issue, but the brake light is not attached to the bike, so how could that affect helmet compliance?

Western Australia police flick-passed it to the light manufacturer to work with each helmet manufacturer to ensure that the helmet remains legal according to Australian Standards when the light is attached.

That’s virtually impossible. Do they know how many helmet manufacturers there are in the world!

WA police say you cannot alter the structure of an approved helmet by drilling holes, placing stickers or painting a helmet.

“So sticky adhesive pads for accessories are dependent on the quality of the helmet,” they say.

Conclusion

Our answer is “user beware”!

If you’re like Raphael, you may think your safety is more important than risking the off-chance of a fine.

The onus is then on the rider to challenge a fine in court and risk the ensuing costs.

Source: MotorbikeWriter.com