[Hi, I'm Atticus. I'm a law student and intend to contribute an occasional post on law-related topics.]
In Paul Sheehan’s Monday column, his topic was the recent decision of Judge Nicholson to exclude a speed camera photo because its accuracy came into question. Although we do not yet have the benefit of the judge’s written reasons, Sheehan is certain that the decision is a travesty of justice and another example of unelected judges trampling the will of the people as expressed through parliament. But he’s got it exactly backwards. The problem seems to be that the judiciary is upholding the law, and the parliament’s sloppy legislation is at fault.
According to Sheehan, the case boiled down to this:
[The appellant's lawyer] argued that a decision this year by Supreme Court Justice Michael Adams was relevant in observation in his judgement in RTA v Michell: “In order to remove what I might call the ‘default position’ [that the speed camera is accurate], all that is necessary is that evidence to the contrary be adduced. The statute does not require that evidence to be of any particular quality. Even slight or unconvincing evidence ‘to the contrary’ would satisfy the negating requirement.”
It is worrying to find the words “slight” and “unconvincing” in reference to negating evidence accepted by the court. What should take precedence over opinion, I would have thought, was hard, objective evidence, such as the recording of a properly functioning speed camera.
If Sheehan put the quotation from RTA v Michell is read in context, it would be clear to his readers that the problem is with the way the the Road Transport (Safety and Traffic Management) Act 1999 is constructed. Because of its unorthodox language, judges are backed into a corner. As Justice Adams explained:
The argument focuses upon the significance of the phrase “unless evidence to the contrary is adduced”. That appears in each of paras 47(2)(c), 47(3)(a), and 47(3)(b). It is important at the outset to note that in order to remove what I might call the “default position”, all that is necessary is that evidence to the contrary be adduced. The statute does not require that evidence to be of any particular quality. Even slight or unconvincing evidence “to the contrary” would satisfy the negating requirement.
The phrase to which I have drawn attention is in marked contrast to one often used where evidence is to be given prima facie cogency: “unless the contrary is proved” or, as appears in s 146 of the Evidence Act 1995, “unless evidence sufficient to raise doubt about the presumption is adduced”. It cannot be doubted that the negating phrase used in the Act has been intentionally and carefully chosen in pursuant to the purpose to which I referred at the beginning of these reasons, namely, to create an appropriate balance between proof by mechanical or electrical device on the one hand and the right to defend a case on the other.
This balance does not appear to have been well struck by the legislation. The way it is set up, a speed camera photo “is evidence (unless evidence to the contrary is adduced) of the matters shown or recorded on the photograph”. That means a defendant merely has to say, on oath, “I wasn’t speeding”, and the photo can not be admitted as evidence of the alleged offence. As Justice Adams pointed out, the language of s 146 of the Evidence Act 1995 would produce a different result: it would require the defendant to produce something more convincing than their own word before they could be taken to have displaced the presumption of speed camera accuracy.
There are different statutory approaches taken around Australia, and NSW sticks out ilke a sore thumb. For instance, the Victorian Road Safety Act 1986 provides that speed camera evidence “is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle on that occasion.” In NSW, when a speed camera photo is challenged, it is excluded as evidence; in Victoria, it is merely excluded as proof — it is still evidence to be considered by the judge.
In Western Australia, section 98A(3) of the Road Traffic Act 1974 simply says that the reading taken by the speed camera “is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle”, while section 98A(5) allows “the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty”. The onus is on the defendant to show, on the balance of probabilities, that the speed camera was inaccurate.
It is not clear that the NSW parliament intended their legislation to be quite so different from that in Victoria and WA. You might notice a little note in section 47: “cf Traffic Act, s 4AC”. This indicates that the provision should be compared with the old section 4AC of the Traffic Act 1909, which was repealed when the current legislation came into force. The explanatory notes of the 1999 legislation suggest that there should be no material difference:
The proposed section substantially re-enacts the provisions of section 4AC of the Traffic Act 1909.
However, if we go and look at the text of the old section 4AC (pdf), we find that it has been “substantially” but not exactly re-enacted:
(3) A photograph tendered in evidence as a photograph taken by an approved camera recording device on a specified day at a specified location:
(a) is to be accepted as having been so taken, unless evidence is adduced to the contrary; and
(b) is prima facie evidence of the matters shown or recorded on the photograph.
So section 4AC(b) of the Traffic Act 1909 used “prima facie” language similar to the Western Australian statute, but when it was “substantially re-enacted” in the Road Transport (Safety and Traffic Management) Act 1999, it was changed, without explanation, to a new construction — a change that has created a loophole big enough for hoons to speed through.
Sheehan says the decisions of Justice Adams and Judge Nicholson have raised “some very worrying questions that have suddenly arisen about the intent, spirit, practicality and literal meaning of the law.” He’s right — but when we take a longer look at the legislation, it’s clear that Sheehan is blaming the wrong people. The judges have applied the law as it was drafted and enacted by the parliament. If the politicians have legislated to tip the balance in favour of speeding motorists, I imagine the NSW public might not be very impressed — the Government should either put the law back the way it was before December 1999, or explain why it is prepared to take the uncorroborated word of a hoon over its own speed measuring devices.
So what Sheehan really wants is some activist judges who will interpret the law in light of the intention of the drafters, and reflecting our current culture and practices…
Damn these judicial stick-in-the-muds who interpret the text of the law as written
Bloody Sheehan: how can being a stickler for the absolute letter of the law as written be in any way described as “activist”? It’s simply not good enough for pollies to bleat “but we didn’t mean it like that” every time an example of poorly drafted law is rightly eviscerated on the bench.
Our pollies need to be held to a proper standard as legislators, which is a standard of ensuring that the language of the law meets their intent as well as the wishes of the electorate.
Welcome to the Blorg, Atticus. (Is your gravatar meant to be fuzzy?)
Mr Merkel, our posts crossed.
Yours was pithier.
You swine.
I would thank you not to call mere speeding drivers ‘hoons’. ‘Hoon’ is a term with a very specific inferred legislative meaning in most states and territories. It is to do with issues of governance regarding public space and specific ritualised practices including street racing and cruising.
If you are using ‘hoon’ in its ‘common sense’ of reactionary mass-media moral panics, then you should really think about changing your discourse so it is not shared with Today Tonight and A Current Affair.
There needs to be a specific term to describe middle-aged masculine drivers who think they rule the road and protest against the imposition of speed cameras or anti-speeding road safety measures.
The dearly departed?
Exactly how dangerous do you think doing 70 in a 60 zone is?
It’s right up there with eating too much bacon. The unconditional love you guys seem to have for state revenue-raising surveillance cameras is rotting your brains.
Speed limits in any case are set based not on the road quality or location, but on the amount of traffic the road carries.
Doing 70 on an empty street at 9pm is much safer than doing 55 on the same street in peak hour, but only one of them will get you a speeding fine.
Mmmm … bacon …
The following are ipso facto guilty:
1. Anyone driving a Suburu WRX.
2. Blonde matrons in 4×4s.
3. Drivers of cars bearing that transfer of Vietnam Vet medals.
4. Anyone who agrees with Yobbo.
Forgive me for believing that there are more important things police could be doing than chasing after people who drive 10kms over the speed limit.
Especially here in WA, which has the highest rate of burglary, car theft and violent crime in the country.
Even the police themselves don’t seem to think that speed cameras are all that important: http://www.thewest.com.au/default.aspx?MenuID=77&ContentID=2010
So, in Yobbish, a bit of cheap snark equates to unconditional love?
Have to remember that.
… and anyone Paul Sheehan doesn’t like.
What’s going on? A few years back conservative commentators were calling for the assertion of black-letter law in the nation’s courts. Now we’ve got people like Nicholson and the Victorian Appeals Court applying legislation as she is writ, and all of a sudden the place has just turned to absolute shite.
I think Sheehan is, in any case, on his own doomed crusade for elected judges. His views are, well, eclectic.
Well isn’t that one of the advantages of speed cameras? They don’t need to be operated by police officers, freeing them up to do other stuff.
Ain’t it weird the way people are all in favour of the law and an independent judiciary until it starts doing its job and handing down decisions that they don’t agree with. Then these self same commentators would have us believe that the bench is occupied by out of touch judges and magistrates who are singularly failing in their duty to protect us, the public, from whatever is ripping at the very fabric of society. Sheehan and his ilk should realise that they can’t have it both ways… IMHO, either you have a truly independent judiciary and (sometimes) have to cop decisions you don’t like, OR – live in a totalitarian dictatorship without the protection of (or from) a legal system. The current legal sytem may not be perfect, even, occasionally, an ass, but it is all we got to keep the barbarians at bay…
This is not to say the alternative tradition of inquisatorial systems such as they have in France don’t have their place, either..
BTW. Is it just me, or are there are uncanny parallels between the commentary about this, and some of the comments that were made about the Jack Thomas case. And what is with the “Get Marcus Einfield” campaign that seems to have spread well beyond the Murdoch press? Just curious, is all.
Cheers
Mick Strummer
“And what is with the “Get Marcus Einfieldâ€? campaign that seems to have spread well beyond the Murdoch press?”
I think that could be about overweening pomposity and hypocrisy getting a not undeserved serve. If you’re not prepared to cop your own speeding tickets, it’s probably best not to select two separate and conveniently deceased Teresa Brennans to cop it sweet for you; particularly if you are claiming a couple of doctorates from “universities” who are to academic achievement as mail order brides are to holy matrimony.
As David Marr recently observed on “Insiders” – ‘it’s wonderful stuff.”
Well good news then.
The rule of law being interpreted faithfully. A job for everyone and everyone doing HIS job.
Yobbo:
Dunno, but reducing the speed limit for Victoria’s built up areas from 60 to 50 caused a “statistically reliable reduction in casualty crash frequency on roads with the new default limit of 13.3 percent relative to roads that have remained 60 km/h and 12.3 percent relative to all roads not affected by the change.”
And fatal crashes involving pedestrians? Down “46.1 percent relative to roads that have remained 60 km/h and 40.2 percent relative to all roads not affected by the change”.
Einfeld deserves the serve alright.
Yobbo, doing 70 in a 60 zone is failing the aptitude test — it’s really not too tricky to maintain 60 km/h. And those who fail the test contribute to consolidated revenue! It’s almost a stupidity tax.
Oh yes, and congratulations atticus on an entertaining and insightful post. I predict a glittering career.
There is a further factor to the one that BillP mentioned regarding crash frequency. If a car travelling at 70 km/h hits something or someone it does a hell of a lot more damage than a car travelling at 60 km/h. About 36% more damage.
“I think that could be about overweening pomposity and hypocrisy getting a not undeserved serve”
Especially if you’re a pompous, lefty, self-satisfied, elitist, lefty, chardonnay drinking, chattering class, lefty hypocrite.
Stop fucking moaning if you speed cop it sweet.If I had my way excessive speeders would lose their fucking transport period.I would gaol drunk drivers,and anybody killing someone whilst pissed would get the death penalty.Revenue raising so what ! should be more of it.
Bill,
the evidence to support urban speed limits is quite good. The evidence to suggest that 130 km/h on the Hume Freeway is dangerous is a little more ambiguous.
Oh Panelbeater, you think we haven’t figured it out?
“The rule of law being interpreted faithfully. A job for everyone and everyone doing HIS job.”
I’m guessing you’re a Lebanese-Aboriginal drug-addict transvestite-prostitute-barrister-pedophile working out of Redfern driving a 120Y and living in a cabbage.
The profession being shortened to: Transvestituterophile.
Of course speed cameras are mostly about revenue. As John Quiggin noted once, state tax revenue has to come from somewhere and speeding drivers are a better tax base than most of the alternatives that our State governments would choose.
If you don’t want to pay, don’t speed. If you want to speed then pay up with good grace.