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Friday, 21 December 2012

NSW limits challenges to speed cameras

The NSW Court of Appeal recently considered a case dealing with a challenge to a speed camera prosecution in the Burwood Local Court, Roads and Maritime Services v Addario [2012] NSWCA 412. The NSW equivalent to VicRoads used to be called the RTA (Roads and Traffic Authority). Turns out it recently changed name.

The judgment doesn't show up on Austlii yet, so I've linked to it on JADE.

It's an easy read. Mr Addario was charged with speeding, based on a photo taken by a speed camera.

In NSW, the relevant legislation presumes that the speed camera is evidence is correct and prima facie evidence of what it shows, unless sufficient evidence is adduced to raise doubt about it.

This is fairly similar throughout Australia, and particularly to Victoria's scheme, which I discussed in this post in May 2010.

But one thing is different in NSW.

Section 73A of Road Transport (Safety and Traffic Management) Act 1999.

That restricts contradiction of or challenge to the accuracy, reliability or correct or proper operation of speed cameras, to evidence adduced by a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience).

(At a wild guess, I'd say it's probably no accident that this provision is very similar to the expert-evidence rule in the Evidence Act.)

At the Local Court Mr Addario tendered two receipts for fuel he apparently bought. The times on those two receipts placed him at a nearby fuel station just before and just after the time on the photo. It seems that argument was that if the receipts were accurate, he couldn't have been driving past the speed camera at the time alleged. Kind of alibi for cars...a point raised by Campbell JA at [46] ff.

The appeal judgment doesn't note if it was possible for Mr Addario to buy fuel, drive past the speed camera moments later, and then return to the petrol station and buy more fuel several minutes later. Given the camera was only 200 metres down the road and all...

The Court of Appeal upheld the RMS appeal. (The case won't go back to the Local Court as the appellant expressly said it didn't want to re-prosecute Mr Addario: it just wanted to clarify the law on this point. It even agreed to pay Mr Addario's costs!)

In ruling in favour of the RMS, the Court held that s 73A was not an admissibility provision. Rather, it governed the use that could be made of admissible evidence. Mr Addario's evidence was admissible, but because it wasn't evidence by a person with relevant specialised knowledge, it didn't contradict or challenge the prima facie provisions concerning the speed camera. So, the prosecution didn't need to lead any further evidence about the proper operation of the camera.

But — and this is the useful bit for our jurisdiction — the admissible evidence was something the magistrate had to weigh up when considering if the prosecution had proved its case beyond a reasonable doubt. After all, the prima facie provisions weren't conclusive.

But, whether the magistrate would ultimately be satisfied the accused's evidence raised a reasonable doubt was another matter.

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