Speed Cameras, Radars & The Law - Part II

Speed Cameras, Radars

&

 The Law

PART II

Taree Local Court NSW

The first of the speeding fines on the way to the Gold Coast occurred some 40 kilometers before the Queensland border.  That matter was listed for hearing at Murwillumbah Local Court.  The client flew to the Gold Coast 2 days before the hearing.  I took the first flight from Sydney on the day of the hearing that landed at 8:45 am and was met at the Gold Coast Airport by the client.  He drove me in his rental car to the Court mere half hour drive.  After having coffee in a cafeteria next to the Court I went inside the Court and spoke to the Police Prosecutor.  In view and consideration of the fact that I had flown from Sydney the matter which was number 12 on the List of contested matters was given priority and became number 3.  The Prosecutor informed me that he was having difficulty contacting the Constable involved.  The Magistrate stood the matter in the List till after morning tea break in other words close to 12 noon.  I drove with the client to Jupiter Casino on the Gold Coast and we both had good hearty breakfast.  At 12 noon I was back in Court.  The Prosecutor was still having difficulty contacting the Constable.  The Magistrate gave the Prosecutor until 1 pm indicating that if the Constable was not located and in Court He will be mindful of hearing an application for dismissal.  By 12:50 I applied for summary dismissal the application was granted without opposition.  Three demerit points dismissed!

The hearing in Taree Local Court was coming up in three weeks.  At 5 am on the day of the hearing I drove with the client to Taree arriving just before 9 am.  A vintage experienced prosecutor had conduct of the two matters and the two Police Constables involved were ready and well rehearsed to give their evidence.  Each of the two speed cameras and their tuning fork had valid calibration certificate within the 3 months period prior to the infringement notices.  I thought of raising unique legal argument and a challenge:  Whether Australia’s conversion from the Imperial to the Metric System of measure required sanctioning by the Australian Constitution and whether the conversion was in fact legally valid!  The jaws of the Prosecutor and that of the Magistrate together with the majority, if not all of the other present in Court dropped at the same time.  Both Constables shook their heads in amazements and my client was all smiles and gave me the thumb up.  

‘You can’t be serious’ said the Magistrate. 

‘It’s ridiculous’ said the Prosecutor.  

‘The Australian Constitution adopted the British  Imperial System of Measure, ie, miles per hour instead of kilometers per hour and that section of the Constitution dealing with the Imperial System of Measure had never been formally amended’.   

‘You well know the limited jurisdiction of the Local Courts Mr Abdul-Karim.  But what I am prepared to do is to stay the three demerit points and stay the hearing of the next matter against your client’ said the Magistrate to the chagrin and objection of the Prosecutor.  

My client stood up and said:  ‘I will fund and mount the challenge from the Imperial to the Metric System’.  For a while it appeared like my jaw had dropped!  There was momentary silence in the Court till the Magistrate said:  ‘do you seek anything else Mr Abdul-Karim?’ Trying to collect my thoughts I stood up and said:  ‘no thanks you your Worship’.

The client was ecstatic and started asking question of people outside the Court trying to find the best restaurant in Taree to eat lunch!

Needless to say I did not receive any instructions to mount a challenge in the Federal Court.  On reflection such a challenge was attractive if only for the sheer intellectual argument and may have had some sympathetic ears of some Justices.  But on reflection Australia’s conversion from the Imperial to Metric System of measure may well have offended the Constitution and allowed the Full Court the opportunity to ventilate opinions of how to deal with rectification of the transition rather than striking out that transition. 

That opportunity may well be still open! 

Speed Cameras, Radars & The Law - Part I

Speed Cameras, Radars

&

 The Law

PART I

This is a tale from my court representation of a client who in a matter of two weeks during Christmas New Year holiday period driving between the Snowy Mountain and Gold Coast, a combined return journey distant of some 2,800 kilometers incurred seven (7) separate speeding fines.  The combined demerit points of the seven fines were eighteen (18).  A fully licensed driver with no demerit points loses his or her license when the cumulative demerit points reach a total of 12.  When a period of three (3) years elapses from the date of incurring first demerit points those points are cancelled.  At the time my client incurred the 18 demerit points he had 6 points left on his license.  The client was a businessman and being able to personally drive is essential to the very survival of his business.  The distance from Sydney to the Snowy Mountains is some 500 kilometers one way.  The client incurred two radar speeding fines on the way up and one radar speeding fine on the return journey.  Besides the monetary fine of some $830 plus the cumulative demerit points losses off his license were 9.

The distance between Sydney and the Gold Coast Queensland is some 900 kilometers each way.  This time the client incurred five demerit point one way and four demerit point the return journey.  Those last four demerit points were incurred one after the other less than 5 kilometers apart approaching the town of Taree.  The client wanted to challenge each of the seven fines and was adamant he wanted to retain his license!  Goulburn, Murwillumbah, and Taree Local Courts were the venue in which this Herculean legal challenge took place and all of the client’s hope of retaining his license hung heavily on my shoulders.  By necessity this challenge required lots of planning, legal tactic, and luck.  

After ‘administrative’ delays of some 6 months the first two speeding fines incurred on the way to the Snowy Mountains came for hearing at Goulburn Local Court.  My instructions in relation to the first fine were that another vehicle overtook my client’s vehicle and the speeding fine should have been for that vehicle not my client.  After tender of the facts sheet the prosecutor called the Constable to the witness box.  I tested the Constable memory suggesting to him that the car which was in fact speeding was a Subaru that had overtaken my client’s vehicle.  The Constable disagreed.  I put the same question in the hypothetical and asked the Constable if in fact a Subaru had overtaken my client’s vehicle it would be possible that my client’s vehicle would, as far as the speeding camera concerned, appear as the speeding vehicle.  The Constable said yes it would be possible!  I put it to him that his hand held speeding camera napped the wrong vehicle and he should have booked the Subaru instead of my client’s vehicle.  On balance the Magistrate agreed with me!  The client escaped the first 3 demerit points!  The following week the other two speeding fines came for hearing.  Having read about the hand held speeding cameras in use by the NSW Police Force the maintenance section attracted my attention especially the requirement and importance of calibration of these cameras.  This calibration must be done every three months.  The calibration must also include calibration of tuning fork which is camera specific.

Each of the bookings was for a speed in excess of 10 kilometers over the limit.  In one booking the excess speed was 16 kilometers in the other 19 kilometers.  I asked the first Constable whether the speeding vehicle registering 116 kilometers could have been other vehicle than my client.  ‘Definitely not’ was the reply.  I asked the Constable about   his familiarity and comfort with the operation of the speed camera and whether the registered speed could be erroneous. ‘Very familiar with the camera, attended course when the camera was introduced’ was his reply.  I asked him when it was that the subject camera was last calibrated and whether he had the calibration certificate.  The Constable looked bit uncomfortable and dug out from papers he had in his possession a calibration certificate that stated the calibration was undertaken 5 months and 3 days prior to my client’s booking.  With full smile the client gave me the thumb up and winked at me. I breathed a sigh of relief.  The client escaped another 3 demerit points.  As luck will have it the same line of questioning followed the Constable in charge of the speed camera registering 19 kilometer over the limit.  When it came to the question of calibration that camera was in fact calibrated within 3 months of the booking BUT the tuning fork was not calibrated! A clean sweep!  The client escaped all 9 demerit points and as he told me with a big smile outside the Court I still smell the fresh air of the Snowy Mountain. 

If you think this client was lucky wait for the next blog when we team up at Murwillumbah, and Taree Local Courts.

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