LEGAL OPINION: The camera does lie


Mobile phone usage photos are not always accurate

LEGAL OPINION: The camera does lie
"Any dark, rectangular object is assumed to be a phone"

 

Mobile phone detection cameras have been raking in fines since they were first introduced in New South Wales almost two years ago. In the first 18 months of their official operation NSW issued over $90 million in fines.

The technology is spruiked by the authorities as being highly accurate at detecting potential phone use offences. They back this up with a ‘human check’. Every time the camera detects a potential offence the photo is reviewed by an adjudication officer to make sure it definitely shows a mobile phone.

But as good as the system is, it’s not foolproof. Just because you’ve received a fine doesn’t mean you’re guilty of the offence.

Over the past year we’ve been contacted regularly by people who’ve received dubious fines from these cameras. We always ask to see the photos, and what they depict shows the system doesn’t always work. In a lot of photos it seems that any dark, rectangular object is assumed to be a phone. Even worse, several of the photos we’ve seen simply don’t show a phone, or anything that even resembles one.

Our advice to everyone who receives a fine from a mobile phone detection camera is to look at the photos before doing anything else. High resolution images are available through the Revenue NSW website.

Beyond reasonable doubt

Another important thing to know is that it’s the prosecutor’s job to prove that the object in the photo is in fact a phone. When these laws were first being introduced there were plans to swap the responsibility from the usual situation where the prosecutor has to prove that the object is a phone, to the driver having to prove that it’s not. Thankfully this aspect of the draft legislation hasn’t been implemented, so the current state of play is that unless the prosecution convinces the magistrate ‘beyond reasonable doubt’ that the photos depict a phone, they have to dismiss the charge.

It’s worth having a chat with a lawyer if you think your photos are borderline. We will be able to tell you how likely it is that a magistrate would be convinced or not.

The other option to consider is asking for the photos to be reviewed. You can request that Revenue NSW review the infringement. If it’s been wrongfully issued the fine should be withdrawn. One of the best things about this option is you can request the review before going to court. This means having a chance to fix the situation without the costs and risks of a court case.

If you do ultimately have to contest the fine in court, we’ve found that the prosecution lawyers are quite fair about reviewing the case again at this stage. Where the photos aren’t enough to prove the case they can withdraw the charge.

The main message that we’d like our readers to take home is to not assume the cameras are always accurate. It doesn’t cost anything to check the photos – and doing so could save you a fine and five demerit points.

As always, if you need some help our team at Ainsley Law is always willing to chat.

*SARAH MARINOVIC is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at sarah@ainsleylaw.com.au or phone 0416 224 601.

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