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Old 11-11-2003, 00:30   #1 (permalink)
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Successful Speeding Defence

One more down for Bracksy and his cronies

Victorian motorcyclist and former traffic cop, Peter Culpan has
successfully defended a speed camera violation on the basis that he
exceeded the speed limit in order to avoid injury to himself and another
road user.

The outcome of the case is seen as a crucial victory for road users in a
state that is now heavily reliant on the revenue raised from contentious
speed monitoring devices. More significantly, it paves the way for other
motorists to use the same defence in both speed and red light camera cases.


The outcome is a slap in the face for the Bracks Government's insistence
that speeding -- no matter the circumstances -- is indefensible. With
record numbers of speeding notices now being handed out in the State, which
has a tolerance of just 3km/h over the posted limit, many Victorians will
welcome Murphy's decision.

The verdict -- theoretically at least -- means that other motorists who
believe that they are in imminent danger may use judicious speed to avoid a
collision. In other words, exceeding the speed limit can be justified if it
can be successfully argued that the rider/driver did it to avoid injury or
loss.

The case was heard in the Mansfield Magistrates Court, north-east of
Melbourne on Wednesday, November 5. Magistrate John Murphy heard that in
November last year Culpan, a Melbourne safety con******t, was riding his
BMW motorcycle near Mansfield when a ute pulled out from a side street,
almost colliding with him. Culpan maintained the he was forced to
accelerate beyond the posted limit to prevent injury to himself and the
driver of the ute.

Rather than accept the fine of $125 and loss of one licence point on the
charge of doing 65km/h in a 60km/h zone, Culpan was determined to have his
day in court and fight what he saw as a blatant injustice.

"I feel that in this case I have to put my side to a court," Culpan told
CarPoint in an interview days prior to the case (see Court case challenges
Speed Kills). "I was within a whisker of getting T-boned and injured and it
was the only way I could avoid a collision," said Culpan, whose previouse
appeal to the State's Civil Compliance Office had been denied.

Barrister John Lavery argued that Culpan deserved to be excused from the
charge using the defence of necessity which, in effect, states that illegal
actions were needed at a specific time and place to prevent injury or loss.


Magistrate Murphy agreed, dismissing the charge and awarding all costs to
the defendant. Mr Murphy was also critical of the prosecution's position,
commenting that the incident may well have resulted in an "inquest" if it
hadn't been for Culpan's actions.

The defence of necessity has never been tested against a speed camera
before and is similar to the argument of self defence.

"The interesting aspect of the necessity defence is that the onus is on the
prosecution to rebut it," explained Lavery. "In this case, the only
evidence they could present was the speed camera photo, which only showed
the rear of Peter's bike after the near-collision. I believe there is no
reason why this defence cannot be used in other camera offences.

Lavery sites a couple of possible scenarios: "If a motorist was
photographed by a red light camera, they could argue that they were forced
to drive through the intersection to avoid a car behind them running into
the rear of their car. Or you could argue that you had to speed up to avoid
an aggressive motorist tailgating you on the freeway. In both of these
cases a plausible necessity defence could be used and the authorities would
have to present evidence to rebut it.

"Another interesting aspect is that the government continues to maintain
that its speed cameras are set up in accident 'black spots', which are
inherently locations where emergencies take place. The implication is that
anywhere there is a speed camera, the location is more likely to cause
people to increase their speed to avoid collisions or emergencies."

In summing up, Magistrate Murphy told the court that he was "appalled" that
the case had come before him and condemned the widespread use of speed
cameras specifically in situations where a police officer would exercise
discretion.

"This is a win for what is right and honest," said an elated Culpan. "I'm
delighted that honesty and commonsense prevailed."

Senior Constable Sam Ireland, prosecuting, indicated that a recording of
the proceedings and Mr Murphy's comments would be passed to the Victorian
Police Assistant Commissioner.
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Old 11-11-2003, 00:47   #2 (permalink)
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Re: Successful Speeding Defence

My god, justice from our justice system.

I just hope a lot more Victorian drivers pursue similar cases like this and put pressure on the Vic Govt to pull there heads in.
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Old 11-11-2003, 00:58   #3 (permalink)
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Re: Successful Speeding Defence

This is great news. The government has shot themselves in the foot with this one!
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Old 11-11-2003, 01:05   #4 (permalink)
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Re: Successful Speeding Defence

Wait for it... it will be a loop hole that is closed soon. They *must* protect their revenue stream. Soon speeding because you were hit from behind by a mack truck and catapulted past the camera will be indefensible.
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Old 11-11-2003, 01:16   #5 (permalink)
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Re: Successful Speeding Defence

It seems a very specific defense. The Gov can always use the argument that you could pull in to the left hand lane if you are being tail gated. It's also quicker to brake (100-0 is usually quicker than 0-100).

I sympathise with the motorbike guy I tried saying to the same thing to a cop - I was overtaking a truck around a bend, 2 lane road and didn't want to stay in his blind spot (only going 3 kmh faster than him) for a long (legal) time.
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Old 11-11-2003, 01:18   #6 (permalink)
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Re: Successful Speeding Defence

Reminds me of the Qld cops putting speed cameras in overtaking lanes.

Going by the Transport Ministers comments, he'd prefer you hit head-on with a vehicle coming in the opposite direction after the lane runs out, than exceed his precious speed limit by a few kays.

Good to see the courts exercising some commonsense for a change.
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Old 11-11-2003, 01:20   #7 (permalink)
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Re: Successful Speeding Defence

Good on 'em...stick it to the government!
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Old 11-11-2003, 17:18   #8 (permalink)
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Re: Successful Speeding Defence

Quote:
Originally Posted by sandmanls1
"Another interesting aspect is that the government continues to maintain that its speed cameras are set up in accident 'black spots', which are inherently locations where emergencies take place. The implication is that anywhere there is a speed camera, the location is more likely to cause people to increase their speed to avoid collisions or emergencies."
I think he's a bit off the mark here, most "black spots" (usually intersections, winding roads, sharp corners, etc) are not safer if you're going faster.
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Old 11-11-2003, 18:22   #9 (permalink)
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Re: Successful Speeding Defence

Quote:
Originally Posted by xacoupe
Wait for it... it will be a loop hole that is closed soon. They *must* protect their revenue stream. Soon speeding because you were hit from behind by a mack truck and catapulted past the camera will be indefensible.

LMAO, to true.

This is a good win for the Victorian driver. There is an absolute plethora of excuses that could be used to say you were avoiding injury or loss. It opens a big a can of worms thats for sure.
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Old 11-12-2003, 00:10   #10 (permalink)
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Re: Successful Speeding Defence

WTF whats the courts come to,they actually let someone of a fine,nooooooooo the world will end..LOL

good luck argueing that one in court,"why were you doing 110 in a 80 zone sir" answer"well it was to avoid a car which was going to hit me" i guess 5 k's aint much but it wont tolerate much more i'd think?
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