LEGAL OPINION Unjust police principles

By: Adam Cockayne, Robert Bell*


NSW Police are denying truck drivers and operators a fair go, from the roadside to the court

LEGAL OPINION Unjust police principles
Police vehicle

Rod Hannifey, the president of the National Road Freighters Association (NRFA), has recently proposed that the police should not be used to enforce the Heavy Vehicle National Law (HVNL).

Highway Advocates, which is the affiliated legal practice of the NRFA, thinks this is unlikely to occur but we believe Rod is onto something.

So far, every one of our clients’ police matters has had significant problems including:

• no evidence at all to prove the alleged offence occurred

• the person has been charged with the wrong offence

• the person has been charged with an offence that doesn’t exist

• the alleged time, date or location of the offence are wrong

• the statement of facts refers to irrelevant material or makes prejudicial comments

• unsubstantiated allegations are made against the person.

This can’t all be a coincidence, and it is fair to say that this commonly occurs. Highway Advocates do not let these things slip by; and we feel it is time to remind police of all jurisdictions of the Peelian principles. These principles summarise the ideas that Sir Robert Peel developed to define an ethical police force. The approach expressed in these principles is commonly known in the United Kingdom, Canada, Australia and New Zealand as policing by consent.

This model says that police officers are to be regarded as citizens in uniform. They exercise their powers with the implicit consent of other citizens on the basis that the act transparently with integrity and accountability. This applies in all situations including the conduct of police prosecutors in court.

If you are charged with a New South Wales penalty notice offence – which applies to most heavy vehicle offences under the HVNL and the road rules – the legislation says the prosecutor is "not required" to show you the brief of evidence. However, not being required to show you the evidence doesn’t mean the prosecutor can refuse to give you a brief if you ask for it: the police prepare briefs in all cases, so it is a simple matter of giving you a copy.

So, when you attend the court, the police and the Magistrate have access to the brief, but you don’t. It is manifestly unfair that the only person who doesn’t see the evidence is the person charged with the offence.

Upon request, the defendant and their legal representative should be given the brief because all manner of things could be wrong with the evidence.

We have two recent cases where the failure to serve a brief caused unnecessary prejudice to our clients.

Clean record

In Narrandera Local Court we were defending a client on a plea of guilty to a critical fatigue breach. This is a very serious offence carrying a maximum fine of $17,000 and four demerit points. We did not have a copy of the brief before the hearing.

When we turned up to court we had no information apart from our client’s instructions – in effect we had to "guess" the prosecution case. The prosecutor had a brief of evidence in front of her which she handed up to the court but not to us. We arrived with written submissions, our client’s logbook and his traffic history, and we gave copies to the prosecutor and to the court. The Magistrate complained to the police prosecutor that her brief was incomplete and did not include our client’s traffic history: this was a serious omission. The history, which we provided, showed our client had a completely clean record for the past 30 years. This was a significant factor in the Magistrate’s decision to dismiss the charge.

In Dubbo Local Court, we appeared for Rod Hannifey in a minor fatigue case where the police had not served a brief. The Court Attendance Notice was defective – it described the offence incorrectly and had the wrong offence date. We spoke to the police prosecutor, who clearly had not read the brief, and we explained the errors that needed to be fixed. The police prosecutor did not show us the brief and had no interest in talking to us. She peremptorily dismissed our attempts to explain the problem and told us to come back on another day. This borders on a breach of prosecutorial ethics and we refused to allow our client to be disrespected in this manner.

We mentioned the matter to the court, explained the problem to the Magistrate and he promptly amended the charge. This should have been done by the prosecutor. The Magistrate then dismissed the charge.

The attitude displayed at the roadside is really another article, but the Peelian principles prevail in every situation.

If you are prosecuted in court, the longstanding principle of full disclosure says that you must be given a copy of the evidence. It would be unjust to deny you access. Yet this happens in hundreds of cases prosecuted every day by the New South Wales Police. This is plainly wrong and must stop.

 

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*Adam Cockayne is the legal practitioner director of Highway Advocates and is a lawyer with 25 years’ experience in criminal and administrative law. Robert Bell, a former truck driver, and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates. Contact Highway Advocates on robert.bell@highwayadvocates.com.au or phone 0491 263 602.

 

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