Defences

	So you want to take it further!
	Object to the fine
	Legislative Framework for the Alleged Offence
	Does the National Measurement Act 1960 apply?
	Is the speedometer accuracy legislated?
	Defence of Honest & Reasonable Mistake
	Challenge to the accuracy of a speed detection device
	Need some help?

What is your defence argument?

The argument is that the speed detection device may be inaccurate if it has not been certified as a legal measurement device and subsequently not had its calibration verified by an appropriate authority. Refer to Does the National Measurement Act 1960 apply? for more detail.

What do you do?

You will need to obtain evidence from the prosecution that the speed measuring device has been certified and tested correctly.

How do you do that?

You will need to go to court as this will require a Witness Summons to produce documents to be issued under section 44 of the of the Victorian Magistrates Court Act.

The first court appearance is called a "Mention" and this is where the date for the actual hearing is set. It is at the Mention that you raise the issue of requesting the information and ask the Magistrate to issue an instruction to permit you to issue Witness Summons, and be sure to have the Magistrate identify to whom they are to be issued.

It will help if you have copies of the Witness Summons you intent to issue available for the Magistrate to review. (There are samples in the Library section of this web site here...)

What do you want?

You want the following information from the Victorian Police:

• A document as evidence that the National Measurements Institute has issued a Certificate of Approval in respect of the speed measuring device under the National Measurement Act 1960, certifying that the speed measuring device was suitable for use as a legal measuring instrument, and that the Certificate of Approval was valid on the date of the offence and the date it was last tested.

• A document as evidence the speed measuring device has been tested, or the testing was supervised, by a Verifying Authority appointed by the National Measurements Institute under the National Measurement Act 1960 to verify reference standards of measurement, prior to the date of the offence.

• A document as evidence that the speed measuring device has been marked with the date of certification as required by Regulation 37(6) of the National Measurement Regulations 1999.

• A document as evidence that the speed measuring device has an approved pattern as required by Regulation 37(5) of the National Measurement Regulations 1999.

• A document as evidence that the testing organisation has been appointed as a Verifying Authority by the NMI under the National Measurement Act 1960.

• A document as evidence that the person who signed the Certificate has been appointed as a Verifying Authority by the NMI under the National Measurement Act 1960.

• A document as evidence that the testing organisation is accredited by the National Association of Testing Authorities, Australia [“NATA”] as a testing Laboratory for Electrical testing.

• A document as evidence that the person who signed the Certificate is accredited by NATA to endorse test reports.

• A document as evidence that the person who signed the Certificate is empowered to issue certificates of verification under National Measurement Act 1960.

• A document that mentions expressly the tests undertaken on the speed measuring device that permitted a Certificate to be issued.

• A document recording the results of tests undertaken on the speed measuring device that permitted a Certificate to be issued.

• The summons regarding the Certificate of Approval of the speed measuring device will go the the person named as the Informant, usually a Victorian Police officer. Check the name against the documents provided to you in the Brief of Evidence.

• The summons to the testing authority will go to the person who signed the Schedule 2, Certificate Under Section 83.

• Will need to either use a process server, or serve them yourself and swear an Affidavit of service as proof that they were served.

As the task of prescribing speed detection devices does not rest with the Parliament, but rather is undertaken by government departments, it is considered appropriate for a court to review their decisions, and this includes providing the defence with information about the speed detection device.

The following cases are examples where this has been upheld and considered appropriate in a Supreme Court.

GAFFEE V JOHNSON

In Gaffee v Johnson (1996) 90 A Crim R 157, Justice Smith of the Supreme Court of Victoria confirmed that it is appropriate and acceptable for a motorist to challenge the accuracy of the result recorded by a speed detection device:

"It seems to me that the legislation and regulations while drafted to facilitate proof of the speed of the driver also leaves to the driver the right to challenge the alleged speed. It would not be contrary to the statutory scheme for a magistrate to have the power to require documentary information to be made available to the defendant for the purpose of that defendants defence." (p 163)

“The legislation also envisaged that it will be open to a defendant to challenge the accuracy of the recorded result and one way in which this can be done is to lead evidence about the margin of error in any equipment or by pointing out some deficiency in the device which may have been overlooked by the authorities in prescribing it” (p 164)

Further, it was stated:

“In the vast majority of cases the defendant will not contest the radar test. In those cases where a defendant wishes to contest the result, however, it would be contrary to the interests of justice for the prosecuting authority to withhold relevant documentary information concerning relevant aspects of the radar device, its testing, sealing and its use if that is sought by the accused. If it reveals nothing to detract from the evidence of the device's reading, no harm is done from the prosecution's point of view. If it reveals facts which do so detract, then the accused is entitled to know. To permit the withholding of such information would be to allow a situation to exist where, in most cases, the prima facie proof intended by the Parliament would become conclusive. That is not Parliaments intention and the courts should not permit such a situation to exist without the plainest statutory direction. ” (p 165)

Justice Smith also noted that it is acceptable to challenge the reliability of speed detection devices, as the task of prescribing speed detection devices does not rest with the Parliament. Rather, such a task is carried out by government departments and it is appropriate for a court to review their decisions.

REDMAN V KLUN

Redman v Klun [1979] 20 SASR 343 was a decision of the Full Court of the Supreme Court of South Australia.
The defendant was charged with travelling 110 km/h in a 60 km/h zone. The police followed the defendant’s car for 200m. The police car speedometer indicated the defendant was travelling at 110km/hr. The Magistrate dismissed the case because the police gave no evidence as to the accuracy of the police car speedometer. The Supreme Court considered the presumption of accuracy of speedometers. In the course of his judgement, Chief Justice King referred to the Victorian case of Porter v Kolodzeij [1962] VR 75 where it was stated:

“In support of the admissibility of the result of such tests, the Solicitor-General relied upon the well-known evidentiary presumption of the working accuracy of scientific or technical instruments. This presumption makes the recording or reading of such an instrument prima facie evidence of the facts recorded without any evidence that its accuracy has been actually tested. According to Taylor on Evidence 12th ed, paragraph 183 at p 167, it applies to watches, clocks, thermometers, pedometers, aneroids, anemometers and a ‘variety of other ingenious contrivances for detecting different matters’. It has been held in several cases to apply to the readings of speedometers … The speedometer, however, today takes its place, as do the contrivances actually mentioned by Taylor, amongst a class of instruments of a scientific or technical character, which by general experience is known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such class, before allowing the presumption in question to operate with regard to readings made thereon.”

Chief Justice King also quoted Justice Travers in Barker v Fauser [1962] SASR 176 in a case relating to a weighbridge:

“If they are instruments or machines of a type which we know to be in common use our experience tells us that this is suggestive of their substantial correctness. Experience also tells us that they are rarely completely accurate, but usually so substantially accurate that people go on using them, and that subject to a certain amount of allowance for some measure of incorrectness, they act upon them. In fact, this means that for a small overweight one would necessarily be very conservative about acting upon a machine if that were the only proof of the overweight, but as the amount of the indicated overweight increased one will tend more and more, as a matter of general experience, to rely on the machine as being at least prima-facie proof of there being some overweight. One does not necessarily take them as being completely accurate, but the greater the overweight shown the greater is the probability that there is, in fact, some overweight.”

These observations are equally applicable in this case – speedometers and speed detection devices cannot be relied upon where there is a relatively small excess of speed. So while there is a presumption of accuracy in relation to these technical instruments, it is possible to rebut this presumption of accuracy by providing the court with evidence to the contrary.