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Defences

So you want to take it further! So you want to take it further!
So you want to take it further! Accept the fine on the condition that proof of claim can be provided
Object to the fine. Object to the fine
Legislative Framework for the Alleged Offence Legislative Framework for the Alleged Offence
Does the National Measurement Act 1960 apply? Does the National Measurement Act 1960 apply?
Is the speedometer accuracy legislated?</span> Is the speedometer accuracy legislated?
Defence Of Honest And Reasonable Mistake Defence of Honest & Reasonable Mistake
Challenge to the accuracy of a speed detection device Challenge to the accuracy of a speed detection device
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What is your defence argument?

Even if the court determines that the infringement has been proved by the Informant and the speed is within 10% of the speed limit, then the submission is that the offence is subject to a defence of honest and reasonable belief as to a mistake of fact.

The mistake in this case is a mistake of fact as to the speed at which the vehicle was travelling. That mistake is created by the driver relying on the speedometer in their vehicle to monitor their speed, which speedometer complies with law but which is inadequate for the purposes of monitoring small variations above the speed limit and is specified under the law to have an error tolerance or ±10%.

The Informant (speed camera operator or police officer) has also made a mistake of fact, and has corrected this mistake by taking into consideration the error of ±2% of the instrumentation used to measure my vehicles speed.

This same consideration must be afforded the defendant, as the defendant monitors vehicle speed using a separate instrument to the Informant.

What Precedences are available?

The law in relation to honest and reasonable belief has been considered in both Victoria and South Australia. It would appear that the effect of existing case law is that, in Victoria, no such defence exists in relation to charges of excessive speeding. However, it appears open for the court to find that such a defence is available in relation to a charge of driving less than 10% over the speed limit.

Refer the court to the following cases:

KEARON V GRANT

In Kearon v Grant [1991] 1 VR 321 the Full Court of the Supreme Court of Victoria held that the defence of honest and reasonable belief is not available on a charge of excessive speeding, in that case, travelling 110km/h in a 60km/h zone.

This case has been put forward in the past as a precedence that speeding is a strict liability offence. However on it is submitted that in Kearon v Grant the court’s decision relates to cases of excessive speed only.

In his judgement, which was agreed by the other Justices, Justice Brooking stated:

“I think it clear that the defence, as I shall call it, of honest and reasonable belief is not open on a charge under this regulation of exceeding the speed limit. In my view, the subject matter and character of this regulation are such as to make it likely that the exclusion of this defence was intended. … If ever one might expect an intention to impose strict responsibility, it would be in relation to this offence of driving a motor vehicle at an excessive speed.” (p 323)

The situation where the speed is within 10% of the speed limit, however, does not relate to a charge of driving a motor vehicle at an excessive speed. Rather it is in relation to a charge of driving less than 10% over the speed limit, at a speed that is not considered to be an excessive speed within the meaning of the Road Safety Act 1986.

The Road Safety (Regulations) 1999 specify different offences for driving at different speeds over the speed limit. The type of offence to which Kearon v Grant refers is now apparently covered by Code 1916 in Schedule 4 of the Regulations and is described as “Exceed speed limit in a vehicle other than a large vehicle in a 110km/h zone by 20km/h or more but less than 25km/h”. This offence is an “excessive speed infringement” as defined in Section 3 of the Road Safety Act.

The ruling in Kearon v Grant should be limited to the fact situation in that case, namely, where the defendant was travelling at an excessive speed. This is clear from the words of Justice Brooking. Specifically, considering the above extract from the judgment, Justice Brooking states the defence is “not open on a charge under this regulation of exceeding the speed limit”. He goes on to say that “the subject matter and character of this regulation are such as to make it likely that the exclusion of this defence was intended” and that such an intention was likely “in relation to this offence of driving a motor vehicle at an excessive speed”.

And further, “I should not expect the law to recognise mistake as a defence to a charge of this kind”. (all from p 323)
The obvious question is, of course, what is meant by those words “a charge of this kind”? Does it refer to all speeding infringements or is it a reference to the offence of excessive speeding?

Having regard to all the above words of Justice Brooking, the reasonable interpretation is that the defence of honest and reasonable mistake is not open to a person who has been charged with travelling at an excessive speed. The availability in Victoria of the defence of honest and reasonable mistake is not clear for infringements relating to smaller excesses of the speed limit.

This is confirmed in the Butterworths service entitled “Motor Traffic Law Victoria” at paragraph 70,175.5 where it is stated:

“In Kearon v Grant [1991] 1 VR 321; (1990) 11 MVR 377 the Full Court held that the defence of honest and reasonable belief was not open on a charge of exceeding 60 km/h under reg 1001(1)(c) of the Road Safety (Traffic) Regulations 1988.”

This interpretation is also wholly consistent with community standards. The “subject matter and character” of excessive speeding is very different to that of travelling at less than 10% over the limit. Indeed, having regard to the acknowledged error allowances for both speed measuring devices and speedometers, it is in fact reasonable to expect the law to recognise mistake as a defence to a charge of this sort.

It is also worth noting that in the course of his judgment, Justice Brooking goes on to specify the type of mistake that would exist if the defence were available. These comments suggest that Justice Brooking considered that there may be some offences covered by other regulations where the offence of honest and reasonable mistake would be available.

You can anticipate that the Informant will argue that if it were reasonable to offer this defence, then it is the role of the legislature to make any appropriate changes to the law. However, this offence is set out in the Regulations, and is not determined by Parliament. It is therefore incumbent on the courts to review the Regulations to ensure they are consistent with law.

Accordingly, it is submitted that, unlike in Kearon v Grant, in the case of an offence within 10% of the speed limit, the defence of honest and reasonable mistake should be available, the mistake being as to the speed at which the vehicle was travelling. That mistake is open to be made by any driver who reasonably relies on the accuracy of their speedometer that complies with government regulation in order to monitor their speed.

HEARN V MCCANN

In Hearn v McCann [1982] 29 SASR 448, Justice Zelling of the South Australian Supreme Court reluctantly held that the defence of honest and reasonable belief is not available as a defence to a charge of speeding in that State. This was because the language of the provision was sufficiently clear that it was intended to be a strict liability offence to which such a defence should not be available. However, the judge expressed some dissatisfaction at having to interpret the relevant legislation in that way:

“I am no friend to absolute offences and I would gladly construe s.49 as allowing a defence of honest and reasonable belief if I could properly do so. … I am constrained to hold that s.49 creates an offence of absolute liability to which honest and reasonable belief is not a defence.” (p 453)

You should note that this decision was based wholly on the interpretation of the particular South Australian legislation. Accordingly, it is submitted that it cannot be considered to be good or binding law in Victoria. Specifically, the relevant South Australian legislation was a general offence of travelling more than 60km/h. It did not involve a series of offences, graded in their severity, as the Victorian Regulations do. It was not therefore open to the court to make any distinction between “low” and “high” excesses of the speed limit, as is the case in Victoria.

For these reasons, it is submitted that Hearn v McCann does not stand for the proposition that the defence of honest and reasonable belief is not available for a speeding offence under Code 1909 of the Victorian Road Safety Regulations.

Accordingly, it is submitted that it is open to this court to hold that the defence of honest and reasonable belief is available on a charge of exceeding the speed limit in other than a large vehicle by less than 10 km/h. In this case, the mistake is a mistake of fact as to the speed at which the vehicle was traveling. That mistake is created by the driver relying on the speedometer fitted in their vehicle, which speedometer complies with law but which is inadequate for the purposes of monitoring small variations above the speed limit.