Driving & the law in NSW P.1
For as long as I can remember I have been obsessed by cars and motorbikes. It has not diminished over time, in fact it has been an expensive addiction. Over the years I have owned many different cars and motorbikes, and have accepted the expense as part of my passion.

The expense has been justified by the fun this past time has given me and a large part of this fun was in the driving and riding, going out on my own or with friends sharing the experience of fellow enthusiasts. These experiences have been somewhat diminished by the over policing that seems to be about today. Be it the oversimplification by the press or the mantra of Government agencies that it is speed that kills as opposed to inappropriate speed we see a growing number of possible traffic rules that can be breached.

As a criminal and traffic lawyer I see an ever increasing number of cases where the authorities can take away your ability to drive. For example allegations by police that an individual is driving dangerously or at speeds above a certain limit can result in an immediate roadside suspension, despite no guilt being established. The practical ramification of such action is that one needs to run a preliminary case before the local court arguing “exceptional circumstances” in an attempt to have the licence returned pending the substantive hearing in to the charge itself. If one was not to do that the period of suspension could have been completed before the substantive case comes to hearing.

This does not take into account the power of the Roads and Maritime Services formerly the Roads and Traffic Authority, who have authority to suspend licenses for a variety of reasons from excessive demerit points, to speeding offenses over 30kmh and 45kmh, to medical conditions. I have had numerous people contact me because they have served a period of disqualification for an offence given to them by a court only to be advised they have a further period imposed by the RMS when they have attended a registry to get their license back. These reasons can be demerit point suspensions or up to 5 years suspension

for being a habitual offender. Recent case law resulting from challenges by the RMS has influenced the ability of courts to stipulate the exact period of disqualification in some cases allowing it to be determined by the RMS.

Don’t fool yourself by thinking that it could not happen to you, that as portrayed by the press it only happens to hoons. A growing proportion of my clients are older people, who are so called responsible members of the community, who get dragged into the complexities of the criminal justice system by a moment of indiscretion or inattention. People who may lose their license on the side of the road because they are traveling over the speed limit on roads that used to be 100kmh but are now 60kmh, or 40 kmh work zones on 110kmh freeway. Over the years it has been much harder to delineate between changes in speed zones. One can be traveling along a road that should be a 110 but turns out to be 80. This means that if you were traveling at 115kmh you could lose your licence for 3 months. Going out today for a fun ride or drive results in more time being spent trying to absorb a significant amount of information from multitudes of signs than concentrating on the roads.

If all that is not bad enough the various pieces of legislation that govern driving offences are numerous and can be confusing with gaps in the legislation in some instances which can be to the detriment of  an offending driver. For instance we have in New South Wales the following legislation that may govern your driving and motor vehicles:

Road Rules,

Road Transport (General) Act and Regulations,

Road Transport (Safety and Traffic Management) Act and Regulations,

Road Transport (Driver Licensing) Act and Regulations,

Road Transport (Vehicle Registration) Act and Regulations,

Crimes Act

Often one has to consider more than one act where overlaps may exist that may impact on the driver.

The purpose of the articles that will follow is to share some of the information that I have developed in almost 30 years of practice as a solicitor and to give some examples of the methods by which one can get caught and the things to consider in investigating an allegation for a range of traffic and criminal offences.

Chris Kalpage
Kalpage and Co Solicitors

This entry was posted in Driving & Law on May 22, 2013.

Driving & the law in NSW P.2
Let us assume that on a lovely sunny day you are driving or riding on a road when you are pulled over by a police vehicle. The officer approaches your driver’s side window and introduces himself. The officer advises you that you were speeding which may come as a surprise to you.
   The first thing to bear in mind is that if it is a highway patrol vehicle the conversation is being recorded both audio and video and the officer will advise you of such. Even if it is not a
highway patrol vehicle the officer will make notes as to what responses you may have made.
The second thing to remember is not to make any admissions especially if you do not have all the facts. For example where exactly do the say they observed you speeding and how did they assess your speed.
Generally there are four methods by which they assess speed, listed here in descending order of
1.    The Lidar which is a gun like object which projects a laser beam and is aimed by the officer at a specific target.
2.    The Silver Eagle Radar which is a radar attached to the police car and operates by way of a
Doppler beam.
3.    The check speed which is a police officer following you and assessing your speed by using the speedometer in their vehicle, which obviously shows their speed. This speed may reflect the
acceleration and deceleration of the police vehicle as he tries to catch up to you and may not be a true reflection of your speed.
4.    Police officers estimate, which is the evidence given by the officer as to the speed they estimate you were traveling at. There is no objective measurement of your speed in this instance.
Often they will use one of the first 3 methods combined with their estimate.
If one has the presence of mind one should ask the officer, where specifically you are alleged to have been speeding. It is beneficial for you to take photographs with your phone of where the
incident is meant to have taken place and if you have the capacity on your sat nav or phone the
exact longitude and latitude. It is often difficult, especially on country roads to pin point the location weeks later when you see a lawyer and decide you want to challenge the allegation. I have spent many hours driving backwards and forwards on remote country roads with clients trying to
figure out where they believe, they were pulled over or the incident was meant to have taken place.
Ask to see the reading and make notations of any measurements displayed.  If the police officer was stationary when they alleged that they observed you speeding try and observe what the officer’s
visibility of your approaching vehicle would have been and the maximum sighting distance he would have had when he first observed your vehicle. The distance he would have had in observing you and conducting his test is relevant dependent upon the speed that is alleged and accordingly the
available distance he had to conduct his test.
If safe to do so pace out some measurements of the following:
1.    Maximum sighting distance.
2.    The point and distance that you believe the police officer finished his test.
This may be indicated by the fact that he stepped out onto the roadway to pull you over.
In doing so is a good indication that his testing of your speed would be over. So where were you on the road at that stage? Take that measurement.
3.    Where exactly did you come to a halt which may assist in the relevant braking distance
compared to the speed alleged, that is the distance from the point you first observed the
officer indicating for you to pull over and the spot where you did.
4.    Make a note and take photographs of anything that may have obstructed the officer’s tracking of your vehicle.
At the roadside try to maintain your composure, be firm but be polite the officer is just doing his job, and as he may be exercising his discretion in whether to issue a ticket, or what to charge you with, there is nothing to be gained by antagonizing the situation. Further the relationship of how a case progresses in court and the ability for charges to be reduced can often be influenced by that first
encounter on the roadside.

Chris Kalpage
Kalpage and Co Solicitors


This entry was posted in Driving & Law on May 22, 2013.

Share by: