Working in the cyberz makes for many WTFs

Mar 5, 2020 - 5 minute read - law

I fought the Law, and the Law won, Pt4

In the process of making my application to force disclosure under the Criminal Procedure Act, I did a lot of reading to try and get my head around the legal technicalities of what I was trying to do. It was during this research that I first began to get a feel for how draconian a piece of legislation the Road Safety Act is. As I read through the various sections which were relevant to my charge, it became increasingly clear that the Act had been written very deliberately to place motorists at a distinct disadvantage when legally contesting any charges against them, with the obvious but unstated intention of discouraging people from even bothering. The subtext was clear - don't even bother contesting the charges, you will lose.

Since the crux of my planned defence was essentially dependent on convincing the Magistrate to side with me over an obscure legal technicality, I needed to untangle the labyrinthine mess of cross references and interactions between the relevant sections of the Road Safety Act and the Criminal Procedure Act. It was while doing so that I hit the first RSA-related exclusion that effectively strips a defendant of a right granted elsewhere.

PART 3.2 - “Procedure before summary hearing” of the Criminal Procedure Act requires that police provide the accused with something called a “Full Brief”, the contents of which is defined in section 41. It includes things like details of the charges and what evidence the prosecution intends to submit. In particular, section 41(1)(e) includes what is basically a catch all clause “any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence including-", the goes on to list several items which make it pretty clear that the intention of this clause is to prevent the prosecution from withholding evidence in their possession that is relevant because it will help the case of the accused. I figured this was my ticket to get what I wanted from the police.

The Road Safety Act however, explicitly undercuts the Criminal Procedure Act in section 81A(1)(A), saying “For the purposes of section 41(1)(e) of the Criminal Procedure Act 2009, a certificate referred to in subsection (1) is the only document relevant to an alleged offence to which section 66 applies”. In short, the certified image(s) from the road safety camera is the only thing the prosecution are required to provide.

This was the argument used by the lawyer representing DJCS from Maddocks who turned up at Melbourne Magistrates Court on the day my application was heard to object. To his credit, he acted professionally and courteously, pulling me aside before the hearing to explain his line of argument to me and give me a written summary of his submission, including a print out of a judgement from the Supreme Court of Victoria which he was going to use as precedent to argue that my application was a “fishing expedition” that should be denied, should his primary argument fail.

As I sat in court for most of the morning waiting my turn, I had the enlightening experience of watching the court process, and getting a feel for how the Magistrate interpreted and applied the law. The court room I was in seemed like it must be dedicated to traffic matters, as every other case was related to some kind of traffic offense - speeding, using a mobile phone while driving, drink driving, and people with interlock devices on their cars, etc. Most people represented themselves and plead guilty at the first opportunity. The Magistrate gave each person a chance to explain the circumstances of their offending, and took that into account when sentencing. Most people with speeding or mobile phone related fines got a finding of guilt without conviction, and a reduction on the fine. People on drink driving offences got less leniency.

When it came to be my turn, my matter was the first of the day which was not a simple plea out. I made my arguments, which I had gone to some length to write out in preparation so I wouldn't forget any points I thought were important. The Magistrate listened to what I had to say, and thankfully in this instance it seemed like the slightly technical arguments I was making didn't go straight over her head. When the DJCS lawyer made his rebuttal, he essentially quoted S83A(1A) of the Road Safety Act and said I wasn't authorised to requested the information I was asking for.

The Magistrate, unsurprisingly, agreed with the qualified lawyer. She did ask me if I had any other grounds to make my application, and I tried a public interest argument saying people have a right to know if road safety cameras can't be trusted. She agreed with this sentiment also, but said this was not the proper way to get the information I was asking for and said I would have to question the prosecution witnesses at the contested hearing. When I pointed out that the prosecution wasn't calling witnesses and was relying on the evidentiary certificate, the Magistrate said I could subpoena the witnesses if I wanted - so that was my way forward. To my amusement, she then clarified to the DJCS lawyer that she was only advising me on court procedure, not giving me legal advice (as they are not allowed to, obviously).

After leaving the court room, even though I had been soundly defeated in this battle, I was still relatively happy with he outcome. I knew what the next step was, and as a result of making this misguided attempt under the wrong legislative framework, I had in my hand a detailed description of the exact legal arguments that the prosecution would try to use when I issued my subpoenas, or as we say in hacker speak - a map of the attack surface.

Tune in next time to read about the hijinks involved in trying to issue subpoenas and just how hard they make it.