Advice needed. Excessive speed, going to court.

[Saiuri]

Obviously im going to court for a excessive speeding charge.
I electected to go to court because I honestly believe either misuse of a laser gun or the laser gun is faulty.

Long story short, booked for an alledged speed of 109kmh in a 80kmh zone which results in a license suspension of 3months.
This is my 1st offence since obtaining my license.
I have elected to go to court and reading through the summary of charges and summons, in the statement of the police officer he states using a prolaser 2 seal number xxx however the certificate of seal and compliance states a prolaser 4 with the same seal number. Also under the police officers certified training under laser and radar guns there is a bunch of stamps for a variety of other radar and laser guns but not for the prolaser gun. The latest stamp for qualified training is back in 1995. Would this mean that the officer who had lasered me is not properly trained or certified in the operation of the laser gun used to book me?
Would this infomation be enough to dismiss my case?

Also. What i find interesting is that under the approved police mobile camera operating sites which can be obtained from

https://www.camerassavelives.vic.gov.au ... -locations

Where I was booked in gippsland Traralgon, the site is not on the approved list.
Does this mean that police are only allowed to set up stationery mobile speed detection in the approved locations or it really doesn't matter. Police can set up anywhere they want.

Honestly I truly believe misuse of the laser gun is at fault but how am I supposed to prove this in court, like most I don't have all the $ in the world.

Any help would be appreciated.

[Chef]

Once you are qualified on laser, the authority doesn't nominate which laser you can use.

A laser detection site is not a camera site, so that's irrelevant

A lawyer will tell you whether the statement is relevant to your case, but the onus is on the police to prove the case, not you to disprove it.

If you think you have concerns, pay a lawyer who can see the full brief and give you informed advice, not advice based on a couple of internet paragraphs

[Saiuri]

To be specific the information gained is from what I believe to be government regulations and documents, not just random sources from websites

Reading through my charge and summons the statement given by the officer states using a prolaser 2 auslaser lidar vic police id number PL688.
However the certificate under section 83 produced in the brief of evidence states the speed detector prolaser 4 no PL688

Would this mean the officers statement is incorrect or is the certificate incorrect?

Also reading the ( Road safety (general) regulation 2009 S.R. No 115/2009)
Part 3- evidence relating to speeding and other offences
Which the certificate for the prolaser 4 matches to.

Under part 3 no 41 prescribed speed detector
Prolaser 4 is NOT listed.
Would this mean the certificate supplied for evidence is null and void and can not be used as evidence?

Also another question.
Under the officers training and speed measuring device record the officer has a bunch of stamps indicating he is a approved operator for particular devices however neither prolaser 2 or 4 is there.
Would this mean he is not properly trained or certified to use the device and therefore not allowed to use the device.

I also have another document from standards Australia title AS 4691.2-2003 laser based speed detection devices- operational procedures.
Under A4 and A5 it explains only those who have training and accreditation is authorised to use the devices.
Again does this mean that the officer must have completed training to use the prolaser devices,
as to my beliefs, because the officer has multiple accredited stamps for training in multiple devices, it would indicate that you would have to be trained and accredited to use each individual device

[Hardy]

For your PL4, take a look at http://classic.austlii.edu.au/au/legis/ ... 9/s41.html

He didn't use a PL2. They haven't been used for years.

The training certification refers to a Laser, not any particular model.
Seeing there is no law that requires the operator to have undertaken any training whatsoever, it is going to be difficult to convince a magistrate that it is material if the operator was not trained on a PL4. It is probable that the document certifying the training of the police member is inadmissible, as it purports to offer an opinion of a person who is not called as a witness. You could object to it on the basis that it is hearsay and irrelevant. It is irrelevant because the police can win with or without that document being tendered. However, I have been in cases where the police drop the charge if the operator has not completed the relevant training course.

Australian Standards can be ignored unless there is a law that expressly makes them relevant to a case. For example, it is a legal requirement for a cyclist/motor cyclist to wear a helmet which meets australian standards. There is no law that obliges a policeman to comply with australian standards when measuring a vehicle's speed with a laser.

I truly believe misuse of the laser gun is at fault but how am I supposed to prove this in court

That is how a driver tries to defend himself. It is not how a lawyer does it, because it is practically impossible to do. A defence lawyer doesn't try to prove anything. Our job is to stop things being proved.

[Saiuri]

Hello hardy.
Thank you for your response. This clears a few of my concerns and questions.
I find it hard to understand certain areas of the law and how it applies.
My next question in my mind is that there is doubt in the officers ability in the use of the laser used to book me. As stated earlier. The last training indicated in the use of laser/radar devices is back in 1995. Would this indicate that no further training in regards to speed detection has been taken since then?
In my opinion the officer is incompetent and does not have sufficient and adiqute training in the use of the latest laser technology. The fact that the officer states setting up a prolaser 2 also (in which you reply as to saying that this device hasn't been used for some time) indicates to me that his statement of events is false.

I have requested and been accepted by the vic police freedom of infomation to receive a couple of documents. 1 is of laser theory and the other is a supplement training manual.

Is it wise to defend myself stating the officer may be incompetent in the use of laser devices.

[Saiuri]

After much reading from the link you provided Hardy, I believe I'm starting to somewhat understand what is needed to be done.

I read a case file of McWhirter’s appeal
Much of the brief of evidence by the prosecution is much the same as my prosecutors brief of evidence including the statement made by the police officer which does not detail correctly the operating use at the time of the laser gun including that the officer had ensured that the elements of the speed display were illuminated when it was connected to a source of electricity, that the audio signal of the device was properly set and operated to signify normal operation, that the device was activated when aimed in the direction of the appellant’s motor vehicle within the operator’s field of vision, and that the reading displayed on the digital target speed display was then observed.

Non of this is stated in my brief of evidence and the statement given by the police officer.

Is this the right direction I need to be in to help my case?

[Hardy]

It is quite frustrating trying to help someone pursue their ideas on how to defend themselves because it requires me to ignore other possible defences which are usually in conflict with the strategy being proposed by the driver.

McWhiter's case is obsolete and you won't gain much from it. Over several years I won numerous Supreme Court cases in the same way as I won McWhirter, but late last year in the case of Kinnersly a judge for the first time disagreed with my legal argument, so it will now be hard to convince any court to follow McWhirter and ignore Kinnersly. Anyway, McWhirter's case is only useful for someone who doesn't appear at the Magistrates Court and then appeals to the Supreme Court. Before you spend $18,000 on a supreme court case you should first spend $350 on a conference to get some legal advice.

[Saiuri]

Hardy.
Thank you again for your reply.
I'm sorry to ask. But what does your conference meetings involve exactly. As most. I do not have the $ to just simply spend on the possibility of waste.
Ultimately I fully understand that at the end of the day. I need proper legal advice whether it's going to be good news or bad. I am simply trying to use all resources possible. Like most.the possibility of your licence being suspended sucks and it simply seems to be a massive uphill battle that most end up losing. The possibility of Paying for advice and still losing just adds to the paranoia.

[Hardy]

Paying for a conference to get legal advice is similar to paying for soil testing before you start building your house, or paying for xrays before deciding whether to amputate your leg. The money invested getting a soil test result that says you should not build is a lot less than the money wasted on a building that falls down.

Anyway, the primary purpose of a conference is to help the client answer the perennial question "What should I do?". It is to tell the client all the ways in which the case can be defended successfully, to produce a strategy for winning or for losing which strives to achieve the client's goals, and to set out the costs of each option. Whether or not the case can be defended successfully requires an analysis of the police case - including every step the police claim to have done and every step that they are required to do. You can't do that analysis if you aren't very familiar with the provisions of, at least, the Road Safety Act and regulations and the Criminal Procedure Act and all the relevant case law.

Your case is only a three month licence loss. So if you can get by with Ubers and a myki you might be better off spending your money there. Not everyone can justify spending money trying to save their drivers licence. Many people have a go on their own and some of them win, so you might save your licence by showing there is reasonable doubt or non-compliance in some respect.

[Saiuri]

I know it may seem like a stupid question however
Can some explain to me exactly what this means from the criminal procedures act sec 37

(2) A statement by the informant in a preliminary
brief must be a complete and accurate statement
of the material available to the prosecution at the
time the statement is sworn, signed or attested and
must include—
(a) a statement of the alleged facts on which the
charge is based, including reference to the
material available to the prosecution to
support the alleged facts; and
(b) a description of the background to and
consequences of the alleged offence, if
known; and
(c) a summary of any statements made by the
accused concerning the alleged offence,
including any confession or admission; and
(d) a list of the names of all persons who, at the
time the statement is signed, may be called
by the prosecution as witnesses at the
hearing of the charge, indicating whether
those persons have made statements; and
(e) a list of any things the prosecution may
tender as exhibits, indicating whether they
are in the possession of the prosecution at the
time the statement is signed.


Does this also refer to the referred evidence in a brief of evidence or does it only relate to the statement itself made by the informant

[Hardy]

Section 37(2) refers to the statement of the informant only, not the documentary evidence that is referred to in that statement.

[Saiuri]

So that i can completely understand
Would this mean that within the statement of the informant itself. The informant must include for example
Police used a prolaser 4 pl no (0000) which was sealed........ etc.

In order to use a cert itself to be admissible evidence?

[Saiuri]

Or is the reffered evidence it self satisfactory to reference tendered evidence/exhibits

[Hardy]

That is a very good question, and probably only relevant if you have ambitions to take your case to the Court of Appeal to overturn the unfortunate result I got in http://www5.austlii.edu.au/au/cases/vic ... 8/752.html

Otherwise I can't see how it could possibly make any difference to your case what the police decide to include in their preliminary brief when what the court takes into consideration is the sworn evidence that is given by witnesses in the witness box and not what's in the preliminary brief.

[Saiuri]

Ok. So correct me if im wrong as to my understanding.

Reffered evidence and the statement made by the informant in a brief is only an indication of evidence that may be bought before a judge at a contest hearing.

The only evidence that is admissible at a hearing is that, that is sworn in at that hearing via x examination of the informant and or witnesses?

[Hardy]

The brief of evidence is only relevant if you don’t defend the charge.
If you want to be found not guilty the witnesses will give evidence.