CARR Member John Vance alerted CARR to this very important court case in Victoria involving a challenge to a speeding ticket that was won by the defendant. Without going into the details, essentially the defendant proved to the court that many aspects of the prosecution's evidence and the accuracy of the speed camera could be successfully challenged. But what really was important were the comments of the judge, setting a valuable precedent for challenging every traffic fine in Australia.
Victorian County Court Judge Duncan Allen noted during the hearing that speeding matters are treated as criminal matters and referenced the case of Liberato v The Queen (1985). As stated in the Liberato judgement “it would be wrong to indicate that guilt or innocence ‘turned upon a mere “choice” between’ two inconsistent versions”.
Judge Allen stated in this particular case that as this is a criminal trial, the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before the court. It is of course not for the accused to prove their innocence, but for the Crown to establish their guilt.
This completely overturns any legitimacy of the laws that state that speed cameras are virtually infallible and that the accused have to prove that they are defective. The bottom line is that it is entirely up to the prosecution to show in every single case that the camera in question is indeed accurate ON THE DAY AND AT THE EXACT TIME THAT THE BOOKING WAS MADE, not just calibrated in a laboratory some time before, often weeks or months ago. As soon as a camera is removed from that laboratory, anything could happen to it to alter its accuracy and reliability, such as being bumped or dropped or installed badly.
Of course if the camera in question happens to be an operator-controlled mobile speed camera, then the credentials of the operator on the day have to be examined and the prosecution has to prove that the operator knew what he was doing when he set up the mobile camera, to ensure that it was positioned correctly and tested for absolute accuracy and a number of other factors. In the matter before Judge Allen, the prosecution could not prove any of this, thus the case was dismissed.
But the most important aspect of this case, which impinges on every single traffic offence booking in Australia is this. Judge Allen observed that a critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a court that the person is guilty beyond reasonable doubt.
This literally means that every infringement notice sent to motorists is invalid and illegal, simply because it violates the presumption of innocence of motorists by imposing a fine and requires motorists to go to court to prove their innocence. In fact, every traffic violation has to be dealt with by summons and the motorist must be afforded the presumption of innocence from the beginning, not be deemed guilty of an offence and fined automatically.
But the best part is the fact that every motorist who is booked for speeding can demand that his case be heard by a jury of his peers, as required under the Australian Constitution, which is the highest law in the land. Can you imagine the chaos if every single motorist who was booked demanded a trial by jury? It would bring the entire infringement system to a grinding halt.
Can you imagine the prosecution in every single case trying to prove to a jury that speed cameras were indeed accurate scientific instruments, when the government's own evidence shows that a large percentage of them are defective on any given day? If this was to happen, that would mean that most speed camera bookings would be thrown out of court and so many precedents set, that the entire speed camera regime would have to be scrapped.
In light of Judge Duncan Allen's ruling and comments in the Victorian County Court, every motorist who is booked by a speed camera should do the following:
Every motorist has legal rights and should exercise them, not just be a victim to government manipulation of the law. It is time to fight back using legal principles and precedents, such as the rulings and precedents set by Judge Duncan Allen. We need to fight every single booking by making it untenable for the government to rip us off.
So if you get any sort of speeding or red light camera ticket or even get booked by a cop - fight it all the way if you think that it is wrongful. Of course if you really did exceed the speed limit by a decent margin, you should cop the fine, but you should still challenge the accuracy of every booking made by fixed and mobile speed cameras and demand a trial by jury.
There has been much argument regarding the legal right of local councils to levy fines for parking and other traffic matters. A number of people, including some CARR Members, have contacted CARR and stated that because local councils are a third tier of government that is not recognised by the Australian Constitution and that a referendum to recognise local councils in the Constitution was defeated in 1988, local councils do not have the power to levy fines.
Dr David Mitchell, who apparently is an expert on Constitutional matters, has indicated that that local government is in fact a means used by State Governments for exercising aspects of their own administrative governmental functions. Local government itself is created and maintained by State Government legislation, the geographic extent of local government districts is determined by the State Governments, the powers of councils are determined by and conferred by State Governments, the authority to make regulations is delegated and supervised by the State Governments, establishment of new councils and amalgamation of existing councils are matters for the State Governments.
In other words, local government bodies such as local councils have been delegated the right to perform all sorts of functions by virtue of legislation enacted by the states, so they do have the power to levy parking fines, among other things. Local councils do not have to be recognised in the Constitution, because essentially they are arms of state governments that are recognised. So this information should put this matter to rest for once and for all.
After discovering that using GPS on smartphones was prohibited in Tasmania, CARR made representations to David O'Byrne, the Tasmanian Minister for Infrastructure and a few other portfolios. CARR pointed out that it was very illogical to prohibit motorists from using smartphone GPS on the grounds of alleged safety, because motorists could use standalone GPS receivers with Bluetooth linked to their phones and do exactly the same as GPS-enabled smartphones and make phone calls via their phones in their pockets. This negated the alleged safety concern.
CARR received a reply from O'Byrne, who stated that Tasmania follows a national process for approving Road Rules and this process has been followed in respect of the current version of Rule 300 that Tasmania adopted in November 2009. He claimed that despite what other jurisdictions may or may not have implemented, Rule 300 has been formally endorsed by Transport Ministers nationally.
Despite CARR pointing out the complete illogic of the Tasmanian position that denies motorists with GPS-equipped smartphones to use the GPS function when driving, when they can quite legally use standalone GPS receivers with Bluetooth that literally converts these devices to GPS-equipped smartphones. For instance, most of the TomTom GPS receivers not only can receive phone calls, but can initiate them from the GPS screen.
However, O'Byrne obviously refused to countenance changing his position. This puts Tasmanian drivers at a disadvantage when compared to their counterparts in other states, because if they want to use GPS, they have to purchase standalone GPS receivers, even if they have GPS-equipped smartphones. This is most unfair, especially when O'Byrne's position is so illogical and irrational.
CARR can only suggest that if a motorist in Tasmania is booked for navigating using a GPS-enabled smartphone, that he fights the infringement in court and proves to a magistrate that using a smartphone for this purpose is no different than using a standalone GPS receiver coupled via Bluetooth to his phone, thus rendering the device into a GPS-equipped smartphone. Hopefully a savvy magistrate will see the complete illogical position of the Tasmanian government and throw the infringement out and set a precedent that can be used by other motorists who are similarly booked.
CARR received an email from a person who claimed that in Victoria, there was an insidious practice of amber light shortening at various combined red-light and speed camera emplacements, most notoriously the camera units at the corner of Springvale and Wellington Roads, Rowville and those at the corner of Stud and Wellington Roads, Mulgrave.
The informant stated that normally, induction loop-controlled intersection cameras have a light cycle which gives around a minute or so of green, followed by the internationally-recognised four seconds of amber and then red. Amber light shortening involves the light change cycle being alternated such that the light sequence sometimes gives only a few seconds of green, followed by two seconds of amber cycling immediately through to red, trapping motorists who have just taken off at normal speed to travel through the intersection, believing that there will be time for them to enter and exit the intersection safely.
This sneaky alteration to the light cycle at these intersections happens intermittently so that, to a casual observer, the light cycle appears normal until, after a varied lapse of time, the short cycle is switched on, tricking drivers travelling through the intersection at the time and rendering their ability to pull up almost impossible without causing a tail-end collision.
There are some very valid examples of this disgusting practice from the USA and Italy, as the following websites show:
Article from the US National Motorists AssociationThe article at Loosewire is particularly disturbing, because it reports than in Italy, Stefano Arrighetti, an engineering graduate from Genoa who created the "T-Redspeed" system, was under house arrest and 108 other people were under investigation after it was alleged that his intelligent lights were programmed to turn from amber to red in half the regulation time. The technology, which was adopted all over Italy, employs three cameras designed to assess the three-dimensional placement of vehicles passing a red light and store their number plates on a connected computer system.
Reducing the amber phase seems to be a widespread source of extra revenue. The National Motorists Association of America found six cities that have shortened the amber phase beyond the legal amount, apparently as a way to increase revenue. Of course this is blatant fraud of a monumental nature.
The informant has stated to CARR that he will attempt to make videos of some of these intersections in Victoria where he suspects that amber lights have been programmed to operate at less than the 4-second interval and CARR will inform members of the results of this investigation. CARR thanks the informant for this email and looks forward to receiving further information about this matter.