Little discretion shown as police continue to overcharge

By: Robert Bell*


OPINION: The pain caused by the road authorities often extends beyond dollars and cents

Little discretion shown as police continue to overcharge
Police have been reported for holding up truck drivers on the roadside for over an hour

 

Rod Hannifey, National Road Freighters Association president, has written numerous articles and opinion pieces about modern police methods. Rod has focused explicitly on police enforcement of the Heavy Vehicle National Law (HVNL). Rod has called for the removal of police powers to enforce the HVNL, which, in our opinion, is never likely to happen. Even if the HVNL was Commonwealth legislation, state police can enforce it.

Police are generally empowered throughout Australia to enforce any law or statute within the criminal jurisdiction. This captures the HVNL and other road transport or traffic law. Police do not have jurisdiction over civil matters in general either. There are provisions in each participating jurisdiction that place doubt on the criminality of most offences under the HVNL. These provisions are found in the adoption or application of Acts in participating jursidictions.

Police overcharge – they always do these days and they rarely, if ever, apply any discretion. We hear of many stories whereby police on the roadside will hold up a driver for over an hour or more sometimes, looking for the slightest technical error. We are told the disappointment when they fail to do so is palpable.

We have correspondence in our possession that states that NSW Police will no longer review penalty notices. When we deal with police prosecutors in court, we find them quite decent, with a couple of notable exceptions. However, in most jurisdictions, their hands are tied when it comes to withdrawing matters. We are told the decision is left in the hands of the officer who issued the infringement or charge.

If a lawful review is not available at the penalty notice stage, as we are told, how then does one gain that review? It would seem a waste of court resources if all matters had to be brought before a court to gain that chance. Even in court, the prosecutor cannot apply the discretion granted to them. Some of the duties of prosecutors include assisting the court in avoiding an appealable error on the issue of sentence and informing the court of an appropriate range of severity by reference to relevant decisions.

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For the here and now, though, police are here to stay with the HVNL and other traffic legislation. As a legal practice dealing in only those matters, many of our clients result from charges preferred by the police. We often see single court notices with multiple counts or sequences attached.

Offence dismissed

The last three court matters we dealt with were police matters with multiple fatigue offences. Our results speak of our service and advocacy and changing attitudes within the judiciary:

• 20 sequences on a single court notice with a total maximum penalty of $176,470 and 27 demerit points
• two critical breaches with a total maximum of $34,480 and eight points
• 10 sequences on single court attendance notice with a total maximum of $67,700 and 10 demerit points.

Three defendants faced a cumulative maximum of $278,650 and 45 demerit points.

The cumulative penalty all three received from the courts was zero dollars and nil demerit points. This is not a misprint. Every single sequence or count was dismissed without a conviction.


RELATED ARTICLE: Dodgy fruit from the TfNSW tree


While we would like to take credit where credit is due, we believe that police and other prosecuting authorities should look at legislation in its entirety, rather than honing in on individual provisions in exclusion.

We mention policing for another reason. It is no secret that police often turn to law careers as a solicitor. It would seem a natural progression to some; often ex-police become brilliant defence advocates. Some might even say they are "industry insiders". Other ex-police solicitors stay within the prosecutorial circle. Having the ability to see things from different perspectives reaps the rewards for our clients. We feel it is what sets us apart.

We are finding it increasingly common that police in Victoria and South Australia are enforcing the law as only they know how, laying charges, and then handing the whole kit and caboodle to the National Heavy Vehicle Regulator (NHVR). This allows the NHVR to take credit for the prosecution without the legwork. We are not saying this can’t happen, but we question whether it should happen.

We believe this is an institutional problem that may only be recognised when nobody is left willing to drive trucks anymore.

Peelian Principles

The Peelian Principles of modern policing summarise Sir Robert Peel’s ideas to define an ethical police force. The approach expressed in these principles is commonly known as policing by consent. In this model of policing, police officers are regarded as citizens in uniform. One of the principles is particularly relevant:

"To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolute impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws."

It should not be up to us here at Highway Advocates to try and undo the damage done by prosecuting authorities. Of course, we relish the challenge, but the pain and anguish we see daily have a real toll that often extends beyond dollars and cents.

We believe that the laying of charges and issue of a penalty notice should be subject to review by someone other than the issuing officer.

Perhaps the NHVR could divert some of the money earmarked for more prosecutors and cameras towards that ideal.

 

*ROBERT BELL, a former truck driver and current law undergraduate and practising paralegal, is the CEO and a director of Highway Advocates Pty Ltd. Contact Highway Advocates Pty Ltd on robert.bell@highwayadvocates.com.au
or phone 0488 010 101.

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