Motorcycle Council of NSW Ph: 1300 679 622 (1300 NSW MCC) | enquiries@mccofnsw.org.au

Road Traffic Law “Q&A”

Story provided with the permission of:

– Kalpage & Co Solicitors (02) 9230 0448 and email
– Dean Evans, Editor of Tarmac magazine www.tarmac-mag.com.au

DEFENCE FORCE

If trouble on the road finds you, you might need to find help. We fire a barrage of legal questions at a solicitor specialising in traffic law for answers that could one day save your licence.

Chris Kalpage is a man you don’t want to know, professionally at least. A New South Wales solicitor and specialist in traffic and criminal law, Kalpage is the go-to man if you find yourself as a recipient of one of the one million traffic fines issued by Australian police each year.

Kalpage, a car and motorbike enthusiast has also witnessed a recent increase in the number of roadside suspensions as a result of police exercising discretionary powers and is continually seeing revisions in traffic matters that aren’t common public knowledge. Having defended everything from speeding, manner dangerous, street racing and a variety of other traffic matters, we sat down with Kalpage to fire at him some common legal myths, questions and solutions.

Note: while this advice is informed, it must be used only as a guide for each case is dependent upon its facts and the applicable NSW legislation at the time. It is strongly recommended that you consult a solicitor to consider the specifics of your individual case.

The old saying is ‘innocent until proven guilty’, but is this always true with traffic matters?

Yes, though sometimes it may not seem that way. We are witnessing a greater use of police powers that can result in your licence being suspended and/or your vehicle being confiscated at the side of the road on a police allegation and prior to any finding of guilt.

If you’re pulled over for speeding, what should or shouldn’t you do or say, and why?

Say as little as possible but essentially the provisions that exist mean that you must give an officer your name, home address and licence. If you wish to dispute the allegations on the roadside, be polite, be courteous, but be firm. The problem is most people are nervous and they try, in being polite, to acquiesce to an officer’s statements. Often when they do this they are simply acknowledging the question rather than agreeing to what has been put to them as a factual matter.

So can anything you say be used against you in a court of law?

Yes, anything you say ‘can’ be taken down by the officer and used against you but it could be argued that simply acknowledging the officer’s statements didn’t necessarily mean that you agreed with them. You must always be aware that most marked and unmarked highway patrol vehicles have in car video in operation recording your conversation and actions.

If you received a speed camera fine in the mail, what would be your first step?

To ask for [purchase] the photographic evidence; that will show whether your vehicle was there in the first instance to ensure the photograph identifies your vehicle. There are situations where the rego numbers have been wrong, and the fine has gone to the ‘closest’ vehicle on their records.

If you believe you may be guilty, why would you take a matter to court?

The words “may be” are important. There may be factual or legal issues that support a defence. It’s incumbent upon the prosecution, in the first instance to establish a prima facie case and if that is established to prove their case beyond a reasonable doubt. Secondly, you may wish to enter a plea of guilty and put forth the mitigating circumstances so that the court could take them, and your personal circumstances into account when determining your penalty. For example, when there is a mandatory loss of licence, the court may consider what happened, when it happened and your driving record, thereby exercising its discretion under Section 10 of the Crimes (Sentencing Procedure) Act, where they can find the offence proven but record no conviction; or where they can exercise the application of statutory minimum disqualifications.

What is a Section 10?

A provision under the Crime (Sentencing Procedure) Act, which gives the court the power to deal with a matter without proceeding to conviction, so a court can find the offence proven but not proceed to conviction, and by not proceeding to conviction they don’t have to impose a penalty. But the thing to keep in mind is that because the offence is proven, but with no conviction, the demerit points will still apply because the legislation permits it. This could ultimately lead to a licence points accumulation and cancellation.

Is it ever better to simply pay the fine?

People don’t see me because of a fine. People see me because of issues involving being aggrieved by the actions of police, loss of licence, loss of points and accumulation of points resulting in loss of licence.

Is every fine defendable? When would you advise someone to, or not to defend a case?

Every offence should be considered carefully with respect to the existence of a potential defence; the strengths of any defence are what you need to investigate and whether you believe this defence is strong enough to be successful before a court. But there are other cases where it would appear there is no defence, therefore you may still elect the matter to go to court for the court to consider the mitigating circumstances in regard to penalty.

Is there a risk of taking an offence to court and having the penalty increased?

That is a risk in some cases, though by and large I have never seen penalties increased. The courts are pretty good that way.

What if a fine, say a parking fine is clearly issued incorrectly, what action can you take?

The first step would be to send a letter to the respective authority, such as the issuing council or the Infringement Processing Bureau, and make necessary representations. You would potentially raise the issue of how and why it was issued inaccurately, including photos, such as in respect to the time you were there, or a defective meter. In those circumstances, it is always good to log a complaint/service call at the time to the help number that is often on the defective machine.

How successful are challenges to speed measuring devices, for speeding offences?

A speed measuring device, be it a Silver Eagle radar [mounted to a vehicle], a LIDAR [hand-held] or a fixed speed camera, are all scientific speed measuring devices. Any measuring device needs to be calibrated. How it is calibrated is a serious issue with serious questions. The issues are how it has been calibrated as required by national standards, how it has been calibrated on a daily basis by the operator, and how has it been used by that operator in compliance with the guidelines or otherwise.

Have you seen many cases of innocence that have been proven guilty?

Generally speaking, no, the courts in the majority get it right. It is up to the prosecution to prove its case beyond a reasonable doubt and if that has been achieved the court will proceed with conviction.

If my driving record is clean, do I stand a better chance of defending an offence than someone with a worse history?

In relation to a defence of any case, your driving record has nothing to do with it. The court considers a case based upon the factual evidence and the relevant charge. Your record is only usually considered when it comes to the determination of penalty after there is a finding or plea of guilty.

At a random breath test, can a driver refuse to provide their personal information or refuse a breath test?

In general no, it is an offence to refuse a breath test.

Can the police legally search your car?

As a general concept, there is a plethora of legislation in traffic and criminal law that enables the police to search your vehicle.

Car manufacturers still allow a 10 percent accuracy tolerance, is there allowance in the court room for this speedo error?

In general terms, courts may take this into account in various defences, but at the very least they have a power in NSW legislation to make findings of a lesser speed. For instance if you are charged with a speed greater than 30km/h and less than 45km/h it may be possible for the court to make a finding of speed less than 30km/h.

How accurate is police radar when it is used to enforce speed limits?

The accuracy depends on how the equipment is being used by the operator and how it is maintained and calibrated by the police force. However, there are numerous police guidelines, applicable to the Silver Eagle radar and LIDAR which require the officers to utilise the equipment in a certain way. A failure to comply with the guidelines could call the reading into question.

If I successfully defend a speeding fine, will my licence still record the original offence?

No, it won’t appear on your traffic record.

Is there a recipe for a successful defence?

In short, preparation. Do everything you can to prepare your case thoroughly; a large percentage of success is due to preparation. From the time you are pulled over, if you wish ask the officer exactly why and where you are alleged to have offended, and gather as much evidence from the site of the alleged offence as soon as possible such as photos and distance measurements.

If I elect to have a matter heard in court, will it always make it in front of a judge?

Generally there is opportunity to discuss it with the prosecution, and for your legal adviser to discuss the matter with the prosecutor or the informant. However once you make a court election even if the prosecution withdraws the charges it will need to be ratified by the court.

If you can answer this subjectively, what is the likely success of an individual with an average amount of legal knowledge defending a speeding fine?

There are always situations where an individual may be able to do it. However there are so many variables, rules of evidence, procedures and issues of factual evidence that need to be understood and administered. Often there is insufficient relevant work being done to mount a successful defence, whereas an individual may have general knowledge but not specific knowledge to produce the relevant evidence in the proper form. Further I have observed over the internet various lay people who profess to be experts spouting a lot of general information that can be inaccurate or accurate but not relevant in a court.

What are the most common public misunderstandings of traffic law?

Where do I start? I guess amongst the many, a couple would be firstly, that it won’t happen to them. Secondly, people often have no understanding that they can lose their licence automatically for many speeding offences by paying a fine, and they are often not told this at the side of the road.

If you want to defend a fine, do you always have to go to court, ie: how much power does the Infringement Processing Bureau have to overturn an offence?

The IPB has certain guidelines to consider your representations, but in my experience they rarely do overturn fines unless you have had no offences in ten years and for a limited range of offences.

We’ve seen recent high profile cases of people nominating other drivers for their own alleged offences. What are the legal implications relating to false statutory declarations?

The potential legal implications are significant, with the ultimate sanction being of a custodial nature.

Does your knowledge of cars and motorbikes help in the court room, in terms of knowing what a car or bike could and couldn’t do, such as an impossible speed?

My knowledge of cars and motorbikes is a significant help because it gives me a degree of ability to understand what is and isn’t possible, such as the difficulty for a four-wheel drive vehicle to lose traction. The second issue is the effect of the camber of the road to traction offences. Through riding bikes and driving cars you realise the effect the surface may have on the ability of the particular vehicle to perform as alleged by police.

It takes three years to ‘clear’ traffic offence demerit points from your NSW licence. Are there some offences that never ‘clear’?

All the offences that attract demerit points remain for three years then the points clear, like a three-year conveyor belt. However the offence itself remains on your driving record.

Does delaying paying a fine provide time for those points to ‘clear’?

Often people think that if the offence occurs on a certain date that by delaying payment of a fine will allow time for points to renew, but that’s not the case. Once you pay the fine, or are convicted, it’s the date of the offence that goes on record, not the date of conviction or the date the fine is paid.

Do any traffic matters ever result in custodial terms?

Potentially there are a number of traffic matters that can incur custodial consequences, such as manner dangerous, drink driving, and drive whilst disqualified offences to name a few.

Are there traffic offences that can result in the vehicle being confiscated?

Yes, the issue of burnouts and street racing can result in three months confiscation while a second offence, can result in the vehicle being sold which says a lot about the sanctity of private property.

What is the difference between a traffic fine and a conviction?

A fine, or penalty notice, is something that’s been given to you by the police or an authorised officer. This can be dealt with by payment of the fine or having the matter elected to be heard by a court. Unless you get a section 10, conviction usually follows a finding of guilt by the court or by plea of guilty.

If I receive a fine in the mail for a speed camera offence, how difficult is it to defend given the lapse of time and potential lack of witnesses?

I have significant concerns about speed cameras because it’s harder to gather evidence such as who was driving, recalling what speed you were doing at the time, and any other relevant factual matter that may assist your defence because of the lapse of time.

Have you noticed a change in the matters you are representing, in regard to changes in traffic law, such as burnouts or street racing?

Burnouts, street racing and speed/manner dangerous are the big ones now and in relation to the first two the problem is if you look at the way the legislation was drafted, it should be utilised to cover the situations of people blocking roads and drag racing down the street or performing dangerous, sustained burnouts and the like. But a lot of my street racing cases are simply a couple of cars stopped at a set of traffic lights that accelerate away, which are then charged for street racing.

We have also seen cases where two-wheel drive cars have lost traction, through a slippery surface, camber of the road, or the type of tyre used and the drivers were charged with performing a burnout.

We have also seen an increase in speeding matters which carry mandatory periods off the road. A lot of speeding cases over 45km/h are also being charged with manner dangerous which takes it into a whole different realm. This is a serious offence, which can carry potential custodial implications and a significant period off the road.

Morally, do you feel it right to have someone who has been charged with speeding or drink driving successfully defended and back on the road?

I believe quite strongly that a person is innocent until proven guilty and every person has that presumption of innocence; their rights are sacred. Your question implies that they have been found not guilty and that is what our legal system is about. Unfortunately we are seeing more cases that are being tried through the media and a person will in effect be publicly judged prior to their case being heard in court.

When was your last traffic infringement and what was it for?

No comment. See my answer about saying as little as possible!

For Chris’ contact details, see his website Kalpage & Co or email Chris directly

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