Many of you may have heard about the recent outcome of the Whiteline Transport case in South Australia. In this case, the National Heavy Vehicle Regulator (NHVR) was prosecuting a driver employed by Whiteline Transport based on evidence collected by SA Police. The Magistrates Court of South Australia produced three separate judgments that essentially derailed the prosecution case on several important legal principles. The NHVR has often claimed that they ‘partner’ with police in several jurisdictions. This is true in part.
However, one must look at the Application Acts, which apply to the HVNL (QLD) in both South Australia and Victoria. The Heavy Vehicle National Law (South Australia) Act 2013 declares that only police officers are ‘authorised officers’ for the purposes of the HVNL in SA. The same can be said for Victoria. This begs the question, under what authority or guise are those NHVR-wrapped cars and officers acting under those jurisdictions?
The Whiteline case stands out for a unique reason. It showcases Whiteline Transport’s steadfast commitment to supporting its driver and the eventual triumph of justice.
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Not to steal any of Whiteline’s thunder, but Highway Advocates has been successful in challenging the police and the regulator on this basis for some years now. In another SA matter some years ago, our client was intercepted and charged by police for multiple offences under the HVNL. When we challenged the regulator on several issues regarding the case, they produced an affidavit that a police officer witnessed in NSW. We did our homework on this, of course, and worked out that a NSW police officer has no authority to do so in NSW, let alone in SA. The eventual result was that all charges were withdrawn/dismissed, demonstrating the effectiveness of legal advocacy in upholding justice.
The Whiteline case underscores the critical need for focused and experienced legal advocacy, especially given the high stakes in HVNL matters. We believe this case will have far-reaching ramifications for how future prosecutions may be conducted. In a recent Victorian matter, our client had been charged with 53 offences, and he faced over $500,000 in potential fines and a licence-crushing 16 demerit points. As an industry insider and with Rodney’s expert legal knowledge, we fought hard and got the critical breaches withdrawn. The end result? Less than one per cent of the maximum fine and zero demerit points lost. We kept our client on the road where he belongs, and the VicPol Heavy Vehicle Unit received a salient reminder that the law should be applied in a proper manner.
False and misleading entry offences also seem to be on the rise, and the way evidence is obtained and charges are laid face some hurdles after the Whiteline case. Highway Advocates has been handling these types of matters for years now, and we now believe they are eminently challengeable in many circumstances, especially when police rely on Google Maps to work out average speeds. The Whiteline case also has major implications in relation to ‘Notices to Produce’ whereby the Court ruled that the prosecution must hold a ‘reasonable belief’ before issuing such a notice. Many of you reading this will have received such a notice previously, with words to the effect of “Heavy Vehicle XXXX was detected travelling too quickly between Safe – T – Cams, therefore it is alleged that an offence has been committed”. This notice will be accompanied by a demand that driver details and copies of work diary pages be supplied, with failure to do so resulting in a significant fine.
The last time we checked, Safe–T–Cams had not been gazetted, prescribed or authorised as average-speed cameras under the HVNL or any other law. What may be regarded as the allowable travel time between cameras has not been legislated, or even published, to our knowledge. Therefore, how can an offence of any type be alleged, let alone to the required ‘reasonable belief’? In a recent case we handled, our client received a section 10(1)(a) dismissal upon a plea of guilty after we explained to the Court that all was not what it appeared.
The Whiteline case may be viewed as an important juncture in the evolving face of heavy law and enforcement. As we have said before, who watches the watchtower? We believe that while heavy vehicle safety and that of other road users must be of paramount concern, that does not mean that the rights and legal remedies available to heavy vehicle operators and drivers should be eroded.
Striking a balance is equally important, and this vision and foresight created Highway Advocates in the first place.
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