Division 2 Speed measurement

43A   Average speed of heavy vehicle is evidence of actual speed in certain circumstances

(1) When section may be relied on
A person who brings proceedings for a speeding offence involving a heavy vehicle may, in accordance with this section, rely on evidence of the average speed of the vehicle between detection points as evidence of the actual speed of the vehicle in order to establish the offence.

(2) Evidence and other matters that may be relied on
The following provisions apply in relation to proceedings for a speeding offence involving a heavy vehicle in which the person bringing the proceedings seeks to rely on evidence of the average speed of the vehicle:

(a)  the average speed of the heavy vehicle calculated in accordance with this section is admissible and is prima facie evidence of the actual speed at which a driver of the vehicle drove the vehicle on a road between the detection points, and

(b)  if there was more than one driver of the heavy vehicle between the detection points—each driver is taken to have driven the heavy vehicle at the average speed of the vehicle calculated in accordance with this section, except as provided by subsection (3), and

(c)  if more than one speed limit applied to a driver of the heavy vehicle between the detection points and the speeding offence is not a speed limiter offence:

(i)  the average speed limit for the driver on a road between the points calculated in accordance with this section is taken (subject to subsection (8)) to be the speed limit that applied to the driver at all times on the road between those points, and

(ii)  a driver of (and any responsible person for) the vehicle may be dealt with under the road transport legislation accordingly, and

(d)  the heavy vehicle and any of its drivers are, for the purposes of calculating the vehicle’s average speed and any average speed limit, taken to have travelled between the detection points by means of the shortest practicable distance between those points regardless of the actual route taken by any of the drivers between the points.

(3)  Subsection (2) (b) does not apply in relation to any driver of a heavy vehicle if the driver establishes any ground of exculpation prescribed by the regulations. The regulations may also provide for the kinds of evidence that may be used in connection with establishing any such ground of exculpation (for example, the provision of a statutory declaration).

(4) How average speed is to be calculated
The average speed of a heavy vehicle between detection points is to be calculated in accordance with the following formula (and expressed in kilometres per hour rounded down to the next whole number):

where:

D_T is the total shortest practicable distance (expressed in kilometres and rounded down to 2 decimal places) that could have been travelled by the vehicle on a road between the detection points.

T is the journey time (expressed in seconds) of the vehicle between the detection points.

(5) How average speed limit is to be calculated
The average speed limit for a driver of a heavy vehicle on a road between detection points in circumstances where more than one speed limit applied to the driver between those points is to be calculated in accordance with the following formula (and expressed in kilometres per hour rounded up to the next whole number):

where:

D_T is the total shortest practicable distance (expressed in kilometres and rounded down to 2 decimal places) that could be travelled by the vehicle on a road between the detection points.

S₁, S₂…S_n are each of the speed limits (expressed in kilometres per hour) that would have applied to a driver of the vehicle if the vehicle were travelling along the shortest practicable distance D_T on a road between the detection points.

D₁, D₂…D_n are each part of the total shortest practicable distance D_T between the detection points (expressed in kilometres and rounded down to 2 decimal places) for the different speed limits S₁, S₂…S_n that would have applied to a driver of the vehicle between the detection points.

(6) Certificate evidence concerning average speed calculations
Any certificates purportedly signed by an approved person for the matters concerned that certify any one or more of the following matters may be tendered in proceedings for a speeding offence involving a heavy vehicle in which the person bringing the proceedings seeks to rely on the vehicle’s average speed and are admissible in the proceedings and are prima facie evidence of any of the matters that are certified:

(a)  the shortest practicable distance, expressed in kilometres and rounded down to 2 decimal places, that could be travelled by a vehicle on a road between the detection points,

(b)  if more than one speed limit applied to a driver of a vehicle between the detection points (measured along that shortest practicable distance):

(i)  each distance for which each speed limit applied to the driver, expressed in kilometres and rounded down to 2 decimal places, and

(ii)  the average speed limit calculated in accordance with this section that applied to the driver between the points (including an average speed limit calculated in accordance with this section using computer programs or electronic equipment),

(c)  the average speed calculated in accordance with this section at which a vehicle travelled between the points (including an average speed calculated in accordance with this section using computer programs or electronic equipment).

(7) Section does not exclude other modes of proof of speeding offences
This section is in addition to, and does not derogate from, any other mode of proof of the speed of a heavy vehicle.

(8)  Without limiting subsection (7), a court in proceedings for a speeding offence in which the person bringing the proceedings is seeking to rely on evidence of the average speed of the vehicle may convict a person of the offence relying on evidence of the actual speed of the vehicle at a particular point of its journey between detection points (instead of evidence of an average speed or average speed limit) if the court is satisfied that:

(a)  evidence in the proceedings (other than evidence establishing the average speed) establishes the actual speed at which the driver was driving, and the actual speed limit that applied to the driver, at that point, and

(b)  the use of the actual speed and actual speed limit rather than the average speed (and, where relevant, the average speed limit) demonstrates that the driver exceeded the speed limit by a greater speed than that indicated by the use of the average speed or average speed limit.

Note. Assume, for example, that the average speed of a heavy vehicle calculated in accordance with this section between detection points is 120 kilometres per hour along a length of road for which the speed limit is 90 kilometres per hour. The use of the average speed of the vehicle indicates that the speed limit was exceeded by 30 kilometres per hour.

Assume, as well, that a police officer also measured the speed of the vehicle at some point during the same journey at 130 kilometres per hour using an approved speed measuring device. Using the police officer’s measurement, the driver was exceeding the speed limit by 40 kilometres per hour at that point.

A court in proceedings to which this section applies may rely on evidence obtained by the police officer rather than the average speed to convict a person of the speeding offence.

(9) Reliance on average speed does not affect validity of driver licence suspension notices
For the avoidance of doubt, the validity of a suspension notice given to a person under section 205 or 206 of the Road Transport (General) Act 2005 for a speeding offence may not be challenged or called into question in any proceedings only because the average speed that is relied on in proceedings or a penalty notice for the offence is less than a speed for which a notice may be issued under section 205 or 206.

(10) Definitions
In this section:

approved person means:

(a)  in relation to certifying distances for the purposes of this section—a registered land surveyor within the meaning of the Surveying and Spatial Information Act 2002, and

(b)  in relation to certifying any other matter for the purposes of this section—a person (or a person belonging to a class of persons) authorised by the Authority to issue certificates for the purposes of this section.

detection points means the different points on a road by reference to which the average speed of a heavy vehicle is proposed to be calculated for the purposes of this section.

heavy vehicle has the same meaning as in the Road Transport (General) Act 2005.

journey time, in relation to a heavy vehicle between detection points, means the total time that elapsed between the heavy vehicle passing the first and last detection points.

road transport legislation has the same meaning as in the Road Transport (General) Act 2005.

shortest practicable distance between detection points on a road means the shortest distance between those points that a driver of a heavy vehicle could have used to travel between the points without contravening any road rules applicable to the driver under this Act.

speed limiter offence means a speed limiter offence within the meaning of Division 2A of Part 5.

speeding offence means:

(a)  an offence against this Act or the regulations of failing to obey a speed limit, or

(b)  a speed limiter offence.

44   Approved speed measuring devices

(cf Traffic Act, ss 2 (1) and 4AB (3))

(1)  In this Act, an approved speed measuring device is a device of a type approved by the Governor by order published in the Gazette as being designed to measure the speed at which a vehicle is travelling.

(2)  The Minister is not to recommend the making of an order by the Governor for the purposes of subsection (1) except with the concurrence of the Attorney General.

Editorial note. For orders under this section see Gazettes No 61 of 5.5.2006, p 2994; No 167 of 9.11.2007, p 8387; No 53 of 16.5.2008, p 3929; No 152 of 28.11.2008, pp 11679, 11680; No 207 of 18.12.2009, pp 6275–6278; No 92 of 16.7.2010, p 3552 and No 33 of 8.3.2013, p 561.

45   Approved camera recording devices

(cf Traffic Act, s 2 (1))

(1)  In this Act, an approved camera recording device is a device of a type approved by the appropriate approval authority by order published in the Gazette as being designed for attachment to an approved speed measuring device for the purpose of taking photographs of vehicles being driven in excess of speed limits and for recording on any such photograph:

(a)  the speed at which any such vehicle is travelling (as measured by the approved speed measuring device), and

(b)  the date on which the photograph is taken, and

(c)  the time and location at which the photograph is taken, and

(d)  the speed limit that, in accordance with the regulations, is applicable to the length of road or road related area at which the photograph is taken, and

(e)  the direction in which the vehicle is travelling (that is, towards or away from the device).

(2)  In this Act, approved digital camera recording device is an approved camera recording device that is capable of recording images in the form of digitalised, electronic or computer-generated images.

(3)  In this section, appropriate approval authority, in relation to the approval of a device as an approved camera recording device, means:

(a)  if the device is only capable of taking photographs that are not in the form of digitalised, electronic or computer-generated images—the Commissioner of Police, or

(b)  if the device is capable of taking photographs in the form of digitalised, electronic or computer-generated images—the Governor.

Editorial note. For orders under this section see Gazettes No 61 of 5.5.2006, p 2994; No 152 of 28.11.2008, pp 11680, 11681; No 207 of 18.12.2009, pp 6275–6278; No 92 of 16.7.2010, p 3552 and No 33 of 8.3.2013, p 561.

46   Certificates concerning use of approved speed measuring devices

(cf Traffic Act, s 4AB (1) and (2))

(1)  In proceedings for any offence against this Act in which evidence is given of a measurement of speed obtained by the use of an approved speed measuring device, a certificate purporting to be signed by an appropriate officer certifying that:

(a)  the device is an approved speed measuring device within the meaning of this Act, and

(b)  on a day specified in the certificate (being within the time prescribed by the regulations before the alleged time of the offence) the device was tested in accordance with the regulations and sealed by an appropriate officer, and

(c)  on that day the device was accurate and operating properly,

      is admissible and is prima facie evidence of the particulars certified in and by the certificate.

(2)  If any such certificate is tendered in proceedings for an offence, evidence:

(a)  of the accuracy or reliability of the approved speed measuring device, or

(b)  as to whether or not the device operated properly or operates properly (generally or at a particular time or date or during a particular period),

      is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating properly is adduced.

(3)  In this section:

appropriate officer means:

(a)  in the case of an approved speed measuring device that is used in conjunction with, or forms part of, an approved digital camera recording device—a person (or person belonging to a class of persons) authorised by the Authority to install and inspect approved digital camera recording devices or approved speed measuring devices (or both), or

(b)  in the case of any other kind of approved speed measuring device—a police officer, or a person authorised by the Commissioner of Police to test a device of that kind.

Note. See also section 73A.

47   Photographic evidence of speeding offences

(cf Traffic Act, s 4AC)

(1)  In proceedings for an offence of driving at a speed in excess of a speed limit imposed by or under this Act or the regulations, evidence may be given of a measurement of speed obtained by the use of an approved speed measuring device and recorded by an approved camera recording device.

(2)  In proceedings in which such evidence is given:

(a)  the provisions of section 46 relating to the accuracy or reliability of the approved speed measuring device apply, and

(b)  subsections (3)–(7) apply in relation to the approved camera recording device, and

(c)  evidence that a photograph taken by an approved digital camera recording device bears a security indicator of a kind prescribed by the regulations is prima facie evidence that the photograph has not been altered since it was taken.

(3)  A photograph tendered in evidence as a photograph taken by an approved camera recording device on a day and at a location specified on the photograph, and as bearing a security indicator of a kind prescribed by the regulations, is admissible and:

(a)  is to be presumed to have been so taken unless evidence sufficient to raise doubt that it was so taken is adduced, and

(b)  is to be presumed to bear such a security indicator unless evidence that is sufficient to raise doubt that it does so is adduced, and

(c)  is prima facie evidence of the matters shown or recorded on the photograph.

(4)  When the photograph taken by an approved camera recording device (other than an approved digital camera recording device) is tendered in evidence, a certificate purporting to be signed by a police officer and certifying the following particulars is also to be tendered in evidence and the certificate is admissible and is prima facie evidence of those particulars:

(a)  that the officer is authorised by the Commissioner of Police to install and inspect approved camera recording devices,

(b)  that within 168 hours before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the officer carried out the inspection specified in the certificate on the approved camera recording device that took the photograph,

(c)  that on that inspection the approved camera recording device was found to be operating correctly.

(5)  When the photograph tendered in evidence is taken by an approved digital camera recording device, a certificate purporting to be signed by an authorised person and certifying the following particulars is also to be tendered in evidence and the certificate is admissible and is prima facie evidence of those particulars:

(a)  that the person is an authorised person,

(b)  that within 30 days (or such other period as may be prescribed by the regulations) before the time and day recorded on the photograph as the time at which and the day on which the photograph was taken, the person carried out the inspection specified in the certificate on the approved digital camera recording device that took the photograph,

(c)  that on that inspection the approved digital camera recording device was found to be operating correctly.

(6)  If a certificate under subsection (4) or (5) is tendered in proceedings for an offence, evidence:

(a)  of the accuracy or reliability of the camera recording device concerned, or

(b)  as to whether or not the device operated correctly or operates correctly (generally or at a particular time or date or during a particular period),

      is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating correctly is adduced.

(7)  In this section, authorised person means a person (or person belonging to a class of persons) authorised by the Authority to install and inspect approved digital camera recording devices.

Note. See also section 73A.

47A   Approved average speed detection devices

In this Act, an approved average speed detection device means a device approved by the Authority by order published in the Gazette as being designed to photograph a vehicle at a point during its journey between different points on a road for use in calculating the vehicle’s average speed between those points and to record on any photograph that is taken:

(a)  the date on which the photograph is taken, and

(b)  the time and location at which the photograph is taken, and

(c)  the direction in which the vehicle activating the device is travelling, and

(d)  such other information as may be prescribed by the regulations.

Editorial note. For orders under this section see Gazettes No 69 of 28.5.2010, p 2272 and No 78 of 29.7.2011, p 5102.

47B   Photographic evidence for use in proceedings involving average speed

(1)  In proceedings in which evidence of the average speed of a vehicle calculated in accordance with section 43A is relied on:

(a)  photographs tendered in evidence as photographs taken by means of the operation, on a day or days specified on the photographs, of approved average speed detection devices installed at the locations specified on the photographs, and as each bearing a security indicator of a kind prescribed by the regulations, are admissible and are to be presumed:

(i)  to have been so taken unless evidence sufficient to raise doubt that they were so taken is adduced, and

(ii)  to bear such a security indicator unless evidence that is sufficient to raise doubt that they do so is adduced, and

(b)  evidence that a photograph tendered in evidence taken by an approved average speed detection device bears a security indicator of a kind prescribed by the regulations is prima facie evidence that the photograph has not been altered since it was taken, and

(c)  any such photograph is prima facie evidence of the matters shown or recorded on the photograph.

(2)  When photographs are tendered in evidence in such proceedings as being taken by approved average speed detection devices, a certificate purporting to be signed by an authorised person and certifying the following particulars is also to be tendered in evidence, and is admissible and is prima facie evidence of those particulars:

(a)  that the person is an authorised person,

(b)  that, within 30 days (or such other period as may be prescribed by the regulations) before the time and day recorded on the earliest of the photographs as the time at which and the day on which that photograph was taken, the person carried out the inspection specified in the certificate on the approved average speed detection devices that took the photographs,

(c)  that on that inspection the approved average speed detection devices were found to be operating correctly.

(3)  If a certificate under subsection (2) is tendered in proceedings for an offence, evidence:

(a)  of the accuracy or reliability of the approved average speed detection devices, or

(b)  as to whether or not the devices operated properly or operate properly (generally or at a particular time or date or during a particular period),

      is not required in those proceedings unless evidence sufficient to raise doubt that, at the time of the alleged offence, the devices were accurate, reliable and operating properly is adduced.

Note. See also section 73A.

(4)  In this section:

authorised person means a person (or a person belonging to a class of persons) authorised by the Authority to install and inspect approved average speed detection devices.

48   Sale, purchase or use of prohibited speed measuring evasion articles

(cf Traffic Act, s 4AD)

(1)  A person must not sell or offer for sale, or purchase, a prohibited speed measuring evasion article.

Maximum penalty: 20 penalty units.

(2)  A person must not drive a motor vehicle, or cause a motor vehicle or trailer to stand, on a road or road related area if a prohibited speed measuring evasion article is fitted or applied to, or carried in, the vehicle or trailer.

Maximum penalty: 20 penalty units.

(3)  The responsible person for a motor vehicle or trailer which is driven or stands on a road or road related area in contravention of subsection (2) is guilty of an offence.

Maximum penalty: 20 penalty units.

(4)  It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the article concerned was not designed as a prohibited speed measuring evasion article but was designed for another purpose.

(5)  It is a defence to a prosecution for an offence under subsection (2) or (3) if the defendant satisfies the court that, at the time of the alleged offence:

(a)  the vehicle was in the course of a journey to a place appointed by a police officer, an officer of the Authority or a court, in order to surrender the article, or

(b)  the vehicle was the subject of a notice, issued in accordance with the regulations, requiring the responsible person for the vehicle to remove the article from the vehicle within a specified time and that time had not expired, or

(c)  the defendant did not know, and in the circumstances could not reasonably be expected to have known, that the article concerned was fitted or applied to, or was being carried in, the vehicle or trailer.

49   Surrender and forfeiture of prohibited speed measuring evasion articles

(cf Traffic Act, s 4AE)

(1)  A police officer who reasonably believes that:

(a)  a prohibited speed measuring evasion article is being sold or offered for sale in contravention of section 48 (1), or

(b)  a motor vehicle or trailer is standing or being driven in contravention of section 48 (2) because of an article fitted or applied to, or carried in, the motor vehicle or trailer,

      may require a person in possession of the article to surrender it immediately to the police officer or, in the case of an article fitted or applied to a motor vehicle or trailer and not immediately removable, may by notice in writing served on the responsible person for the vehicle or trailer require the responsible person to surrender the article within a specified time and in a specified manner to the Commissioner of Police.

(2)  An officer of the Authority who is authorised in writing by the Authority for the purposes of this section and who finds a prohibited speed measuring evasion article fitted or applied to, or carried in, a motor vehicle or trailer may, by notice in writing served on the responsible person for the motor vehicle or trailer, require the person to do either or both of the following:

(a)  remove the article (if it is fitted to the motor vehicle or trailer),

(b)  surrender the article within a specified time and in a specified manner to the Commissioner of Police.

(3)  A person must comply with a requirement under subsection (1) or (2), whether or not he or she is the owner of the article concerned.

Maximum penalty: 20 penalty units.

(4)  A court that finds any person guilty of an offence under section 48 or under subsection (3) may order that the article concerned, if not already surrendered in compliance with a requirement under this section, be delivered to the Commissioner of Police within a time and in a manner specified by the court.

(5)  An article surrendered as required under this section is forfeited to the Crown and may be destroyed or otherwise disposed of at the direction of the Commissioner of Police.

(6)  No liability attaches to any person on account of the surrender by the person, in compliance with a requirement under this section, of a prohibited speed measuring evasion article of which that person is not the absolute owner.