Police prosecutors have been accused of conspiracy to pervert the course of justice over a helmet camera fine that has now been thrown out of court.
They have also been accused of “despicable” behaviour, lack of transparency and misdirection of the court. The NSW Police have rejected the allegations.
It all started when Coffs Harbour rider Tony Deane was fined $311 and three demerit points for wearing a non-compliant helmet on October 25, 2014. He decided to challenge the fine. He was represented by a pro bono lawyer and backed by the Australian Motorcycle Council (AMC).
Tony says police prosecutions rang him in July to say they were dropping the charges and he didn’t need to attend court.
A week before the case, the lawyer also rang the police and was told it was being withdrawn. However, the case was still listed for hearing so he attended court.
“My solicitor still showed up, the prosecution admitted no evidence and the charges were completely dropped,” Tony says on his Facebook page.
“What a total waste of the solicitor’s and the court’s time and money.”
However, AMC spokesman Guy Stanford and rider advocate Wayne Carruthers believe the police may be guilty of something more sinister.
“I think the police could have handled this matter with more transparency,” says Guy.
“They rang the bloke to say they were withdrawing the charge. No withdrawal notice arrived. One week out, the lawyers rang the police and were told it was being withdrawn.
“The lawyer found that the case was still listed for hearing so he appeared on the day. It was only withdrawn by the prosecutor in session of the court after they sighted the lawyer.
“Had the lawyer not shown up, the bloke would have been convicted after being misdirected to not appear. Despicable.”
“The NSW Police dropped the charge at the last second when Tony’s lawyer dropped in on them unexpectedly whilst they were presenting the case in court after they had advised the offender the matter had been dropped,” he says.
“So basically they tell the rider the case is withdrawn and then either by administrative error or design, they proceed in the court without the rider or his legal rep present. The legal rep wanders into the court presumably re another matter and discovers what is happening and they drop it.
“Now if they deliberately told the rider it was dropped and then proceeded with it, then it appears to be conspiracy to pervert the course of justice.”
The NSW Police issued this email statement to reject the allegations: “The original Traffic Infringement Notice was issued by an officer attached to Traffic and Highway Patrol Command. Following representation, a decision was made the Commander for the matter to be withdrawn. The Police Prosecutor contacted the driver (Mr Deane) on Friday 12 June 2015 to advise him the matter would be withdrawn. On the 4 August 2015 the matter was mentioned at Kempsey Local Court solely for the purpose of withdrawing the matter.”
WORDS OF WARNING
Chris Burns of the AMC says it’s salutary lesson to riders: “if it isn’t in writing, it doesn’t count.”
Our legal expert, Jim Feehley, also warns that the withdrawal of the charges does not create a legal precedent for any other similar charges as there was no evidence provided to the court to substantiate a criminal charge.
This follows the recent case of Victoria Police withdrawing a fine for Luke Johnson over a “non-compliant” tinted visor without providing a reason.
Jim warns that neither the case of the helmet camera fine nor the tinted visor offence being waived has any legal precedence for other riders such as Max Lichenbaum who was fined by Victorian police on March 22, 2014.
His case was adjourned for the third time in the Frankston Magistrates Court in July for a new hearing date of September 16, 2015.
Defence lawyer Malcolm Cumming, principal of Maurice Blackburn Lawyers, believes their case will succeed against the $289 fine and three demerit points for “failure to wear an approved helmet”.
FIX THE LAWS
The AMC is now calling for the “extremely complex” Australian Design Rules on helmets to be reviewed by state and federal governments.
AMC spokesman Guy Stanford says there is no reason a camera or communications device couldn’t be attached to a helmet so long as the helmet did not need to be modified to accept the attachment.
“Adding an accessory to your helmet doesn’t change the structural integrity – if the accessory is removed, the helmet is the same as when supplied,” he says.
Guy says the “extremely complex” laws are compounded by differing police interpretations in each state.
While NSW and Victorian police have issued fines for helmet cameras and tinted visors, they don’t seem to be a problem in other states. In Queensland, the former Police Minister actually encouraged cyclists to wear helmet cameras to collect evidence in case of a crash.
Wayne says it is time for a full review of all camera/visor tickets and “a refund to all riders who have taken the easy way out and paid the tickets plus restoration of the points”.
He says there is still the case of a Canberra couple charged over a helmet camera that is before the courts on the NSW North Coast.
He urges that anyone fined for an illegal visor or wearing a camera on their helmet should fight the fine.
“The simple fact is there are no provisions in any of the state regulations which empower police to determine that a helmet with a valid approval label/sticker is no longer compliant,” he says.
“No infringement notice for either a visor or camera should be paid in any state as they are improperly issued.”