Qld Speed Camera in School Zone - S322 court cases

Offences committed outside Victoria
taylorb
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Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Mon Dec 19, 2016 10:57 am

I'm trying to court cases for a ticket for speeding in a school zone where I didn't see the single speed sign.

I'm wondering if anyone else knows of any court cases with S322 defense - where the sign was not "clearly visible".

Here is one posted by "turtle".
viewtopic.php?f=4&t=1446&p=9795&hilit=s322#p9795

Since I'm a newbie I can't send him a private message - does someone mind asking if he can get me more details on his successful case?

Here is another example, but I'm not sure how to get access to the actual court case:

http://www.notguilty.com.au/speeding-in ... visability

If anyone else has any other details i'd be much obliged.

Brian

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Re: Speed Camera in School Zone - S322 court cases

Postby Hardy » Mon Dec 19, 2016 7:12 pm

I've done numerous of those s.322 cases. There is no point bringing up other people's cases because what a Magistrate thought of the situation in a different case is not going to determine what will happen in your case - unless the other case was about exactly the same sign with exactly the same problem. Other people's experiences should neither encourage or discourage you from running your case on its merits. There are no Supreme Court decisions that interpret what r.322 means, so the Magistrates will apply a common sense interpretation of the rule. How one Magistrate interprets the rule is not binding on any other Magistrate. The phrase "clearly visible" means clearly visible for any driver who drives down the road in daylight on an empty road. Although you could try to argue that parked or moving trucks made the signs hard or impossible to see that is unlikely to be acceptable as a defence provided the signs were clearly visible to the police who drove past it 30 minutes earlier. Insofar as a NSW law firm suggests that being obscured by traffic is sufficient for a sign to be not clearly visible I doubt many Magistrates or the Supreme Court would agree. If the sign was clearly visible to the truck in front of you then it is no defence that it was not clearly visible to you just because you were driving behind a truck. The sign has to be not clearly visible to motorists generally, not just to you. It is not a subjective test. One further reason why that is the case is because of the rule that states that you are bound by the signs (provided they are properly erected) even if you did not see them or you did not even drive past them. A road works speed limit sign that is erected on the ground and difficult to see amongst a line of bollards could be "not clearly visible". Rule 322(8) excludes darkness or weather as being factors that could render a sign being not clearly visible. The rule is intended to apply to signs or signals that are difficult to see because they are behind other signs or trees.

taylorb
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Re: Speed Camera in School Zone - S322 court cases

Postby taylorb » Fri Jan 27, 2017 10:05 pm

Thanks Hardy! Very interesting and points taken on board.

I'm still working through and documenting this case. I am working on two areas of defence:

1. The school zone doesn't comply with the two Queensland standards (MUTCD/TRUM) because it is not adjacent to the school (would this be "no case to answer"?).

2. I didn't see the single school zone sign solely on the left, and its flashing lights (active school zone). s327, "the speed limit sign only applies to a driver if he faces the sign before passing it. (MUTCD)", and as well as visibility the position of the sign "are all very important" (MUTCD) or duplication is advised in order to achieve "greater compliance" (TRUM). Just adjacent to the sign is an opposing 2.2m lane that buses don't fit into and it takes continuous driving concentration in order to avoid a collision with vehicles to the right or ahead (other traffic may take action). Hence I wasn't facing the sign but was facing to the right (and didn't see the flashing lights just before school holidays).

(As a bit of an aside the standard (TRUM) requires visible "significant school related activity" in order for drivers to take note of the school zone and slow down - but there is not much of this given the school entrance is 1/4km away down a side road and the school is not visible from the road I was driving down.)

Failing all that I guess I'll try the technical details of the speed measurement given the multitude of vehicles around. Also from what you said on 322(8) the sun shining directly behind the sign could be a factor that affects the sign visibility (at that time of day and year). Regarding visibility MUTCD p4 s5.2.11 seems to give the best guidance for visibility requirements.

Again I'd welcome any comments.

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Re: Speed Camera in School Zone - S322 court cases

Postby Hardy » Fri Jan 27, 2017 11:08 pm

In Victoria, and perhaps also in Qld, there is no such thing as a school zone. It is simply a speed zone on a length of road. The existence of a school is irrelevant. Some signs specifiy the speed limit applies on school days at certain times. This does not make it a school zone. it is still just a speed zone. The issue is not whether the sign was visible to you. You have misquoted and/or misunderstood r.327. If you pull out of a drive-way or a lane you are required to comply with the speed zone signs applying to the road you are on even if you never drove past them and didn't know they existed. Unless the legislation requires all signs to comply with the MUTCD or TRUM then the court won't even read them because they will not be admissible evidence. Indeed, if the law requires the police to comply with the mutcd the onus is on the prosecution to prove compliance with the MUTCD. And if Qld has school zones they will almost certainly be defined by the signage - just like any other speed zone - and not by anything else. You have posted to the Victoria speeding forum and if this thread is really about interstate issues then it should move to the interstate offences forum.

taylorb
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Re: Speed Camera in School Zone - S322 court cases

Postby taylorb » Sat Jan 28, 2017 12:55 pm

Thanks very much Hardy! Sorry about the QLD references – hopefully there will be some commonality.

You are saying that the Magistrates court will not pay attention to the MUTCD or TRUM in relation to the TORUM. Very interesting. This has happened before yet compliance of all sign installations are mandatory with the MUTCD and TRUM as stated in the TORUM: S72A, and S166. As I read, the Transport Department and the Supreme Court have made this clear in evidential cases:

http://www.tmr.qld.gov.au/business-indu ... anual.aspx
http://www.austlii.edu.au/cgi-bin/sinod ... ool%20zone
http://www.austlii.edu.au/cgi-bin/sinod ... uery=mutcd
http://www.austlii.edu.au/cgi-bin/sinod ... mutcd#fnB1 (not also reference to School Zone and reference to TRUM in [12])
[14] Ex No. 8 also states (at 8.1): “A school zone is a time based linear speed zone that in installed to regulate vehicle speeds in the vicinity of schools.
While school zones would generally be installed to support facilities such as children’s or pedestrian crossings, the absence of such facilities at a school would not preclude installation of a school zone.”
[15] I interpret from this statement that it is entirely possible that a school zone might not totally surround a school, but might be limited to an area around a school where there is some facility such as a crossing. Again, this is supportive of the contention of the defendant.”
http://www.austlii.edu.au/cgi-bin/sinod ... uery=mutcd

I read all this that there is such an item as a “school zone” and its design must comply with the MUTCD/TRUM for the signs to be valid in the TORUM. By the way the sign says “SCHOOL ZONE”.

Likewise the quote from the MUTCD on r.327 interprets this rule stating that the driver must face the sign at some time for it to be valid (which would always be the case if it was duplicated). After reading through the 2013 supreme court case I understand entering the school zone from the centre but I hoped this does not preclude the fact that the road design must also be adhere so that other rules (r.327) to be valid, specifically the flashing which warns that the zone is active for that day. I have not read any law, rule or case that refers to the flashing portion of the sign and how/when that should be applied to observing the speed.
Sorry for posting in the wrong forum – How do I move it?

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Re: Speed Camera in School Zone - S322 court cases

Postby Hardy » Sat Jan 28, 2017 2:11 pm

Of the four cases you mention, only two were criminal cases and in neither of those did the driver win. Indeed those cases seems to suggest that a failure to comply with the MUTCD is not a defence to a speeding charge. I checked the Qld road rules for you and r.23 still exists there, so a school zone is defined in the Rules. I also note the MUTCD is incorporated into law in Qld by the Transport Operations (RUM) Act but more work would need to be done to discover the extent to which it is mandatory to comply with anything in it. It seems those cases focus on whether or not s.24 of the Criminal Code in Qld provides a defence, and because Victoria does not have the equivalent of s.24 that issue never arises here in speeding cases. In any case, s.24 can only help someone who is mistaken about how fast their car was travelling, not someone who is mistaken as to how fast it is permitted to travel.

We have made an interstate forum for people who have interstate issues, so I'm moving this topic there for you. Just don't expect many people here to have the time to disect this Qld issue. It would require reading the legislation and case law and effectively starting from scratch.

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Sun Jan 29, 2017 12:43 am

Here is what you are talking about re s.24:
http://www.austlii.edu.au/cgi-bin/sinod ... 0and%20law

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Sun Jan 29, 2017 9:52 am

Here is what you are talking about re s.24:
http://www.austlii.edu.au/cgi-bin/sinod ... 0and%20law

Do you think so? That case tells you nothing about s.24 except that in some cases it might be an important consideration.
Best thing for you to do is look up and read s.24 of the Criminal Code so you can understand what it is about. Then read Proudman v. Dayman and He Kaw Teh. But it seems all that may be a waste of time if you just want to argue about the signage because s.24 is not going to help someone who doesn't see the sign. i.e. s.24 can not help someone whose defence is "I didn't know the speed limit was 40kmh".

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Tue Jan 31, 2017 9:31 pm

Thanks again. Also read, http://www.austlii.edu.au/cgi-bin/sinod ... 9/134.html. All very complex. My simple explanation is that it is vital to always know and practice the law, however sometime mistakes involving a set of unlikely circumstances (etc, e.g. probability) may cause one to make innocent and factual mistakes and not obey the absolute law (the s.24 defence). Am I close?

So, given my knowledge of the school speed sign on the left (and its rules), and evidence that I was continuously turning to face a hazardous lane (& vehicles) on the right (and hence did not directly see the flashing sign), could my mistakes of fact could be (for example):
1. I didn’t know I was travelling more than 40km/h?, or,
2. I’d heard it was school holidays (was actually the week following)?, or,
3. I didn't see the flashing of the sign (indicating an active school zone)?, or,
4. The flashing of the sign (indicating an active school zone) was obscured by the low sun in my peripheral vision?, or,
5. There was no evidence of the school or related activity indicating the 40km/h limit applied (school day)?, or,
6. Some combination of the above.
(Although I note from your previous discussion, given the good weather & daytime, that the low sun did affect “clear visibility” of the sign, r.322.)

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Tue Jan 31, 2017 10:11 pm

I don't think anything you have raised is going to assist your defence in any way whatsoever.
So far everything you have said can be summed up as follows: 'I didn't realise I was in a 40 zone" which of course is not a defence no matter what the reason is. As soon as you admit you failed to see the signs then it becomes implausible for you to give evidence that you thought you were complying with them - which is where s.24 comes in. I guess there is a chance you will be able to convince a magistrate that the signs failed to comply with the guidelines and get it thrown out on that basis. Also the usual speeding defences may be available to you but we haven't gone into any of that.

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Tue Jan 31, 2017 10:40 pm

So that mean we are expected to know when it is a school holiday or not? Or should we travel at 40km/h just in case. I guess by the reasoning of the law we should make the effort to know when it is school holidays.

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Tue Jan 31, 2017 10:59 pm

Unfortunately ignorance of a law that applies to you is never a defence. Else everyone would just plead ignorance and get acquitted.

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby busdriver » Sat Apr 01, 2017 12:17 pm

taylorb wrote:So that mean we are expected to know when it is a school holiday or not? Or should we travel at 40km/h just in case. I guess by the reasoning of the law we should make the effort to know when it is school holidays.


If in doubt travel at 40km/h. When driving interstate you should make an effort understand the roads rules in that state or Territory. You should make an effort to find out when the school zones are going to operating.

I like the school zones in SA, they only operate when children are present within the zone but on the other side to that they are in operation 24/7.

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Thu Oct 12, 2017 10:32 pm

In the end for this case I completed a “Intention to Challenge or Dispute” and entered into case conferencing with the prosecution by email. In summary, it basically quotes regulations and provides facts that the school zone (which in Queensland must comply with the MUTCD and TRUM, s.72A & s.166) is not adjacent to, nor is it located at, the school (there is a park and houses in-between). The prosecution, after investigating the matter by liaising with the council engineer stated, “It has been confirmed that the school zone in question is non-compliant.” At the mention they offered no evidence and the judge closed the case.
Hardy, you did mention this course of action in your comments and I am very thankful for this even though it took a bit of work (as you also mention). However the school zone has always been a concern to me (the school is not visible and there is no significant school related activity). It is demonstrated in the traffic regulations that a sign is always next to the purpose for the sign (e.g. a speed sign is next to the road). So my plan to put in complaints about the zone.

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Fri Oct 13, 2017 6:36 am

Generally there are two basis for the police withdrawing a charge: either legal reasons or political/practical reasons. They might withdraw for legal reason is they think they can not win the case. They might withdraw for political/practical purposes if they think it is not an appropriate case to prosecute even though they could win it. I'm not sure from your post whether the police withdrew because they recognised they could not win (i.e the 40 zone did not lawfully exist), or they recognised it was inappropriate to win in circumstances where the 40 zone didn't meet guidelines. After all, in Victoria school zones do not exist in the Road Rules, so I can't see how the proximity of a school has anything to do with it as a matter of law. What we call school zones are simply 40kmh zones active on certain days and times, and these can (and do) occur anywhere. This might be different in Qld where I think r.23 still exists in their Road Rules, but r.23 still does not make any mention of proximity to a school or the existence of a school at all.

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Fri Oct 13, 2017 8:31 am

The basis for my defence was entirely legal:
"s.72A An official traffic sign must be installed in a way specified by the MUTCD."
"s.166 (1) The chief executive may approve the design of, and a method, standard or procedure about, an official traffic sign. (2) The approved design, method, standard or procedure contained in the MUTCD or an approved notice [TRUM]."
My submissions detailed the many ways the school zone did not comply with the MUTCD & TRUM and the prosecution recognised that the school zone was not lawful (“non-compliant”). r.23 was not relevant to the legal arguments in this case.
Here is a link: http://info.southporttowers.com.au/BRSZ.pdf
From your comments it seems this defence is not available in Victoria.

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Fri Oct 13, 2017 9:08 am

Thanks. These laws are all peculiar to Qld. I'll take a better look at it if I ever get a Qld client with a school zone speeding fine.

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Day » Fri Oct 13, 2017 11:12 pm

However the school zone has always been a concern to me (the school is not visible and there is no significant school related activity).


Always? How long was that prior to you allegedly breaking the speed limit?

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Re: Qld Speed Camera in School Zone - S322 court cases

Postby Hardy » Fri Oct 13, 2017 11:26 pm

Some might say that where a school is not visible there is an even stronger need to slow traffic before reaching the school.

taylorb
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Re: Qld Speed Camera in School Zone - S322 court cases

Postby taylorb » Fri Apr 06, 2018 8:16 pm

The school is on a side road about 200m from Benowa Road. The school is not on, adjacent to, or bordering on Benowa Road where the school zone is located. This has always been the case as I recall. It is also very confusing because one cannot see any school traffic (or the school particularly) on the road in the school zone. It is a bit like having railway crossing sign and no railway to be seen. For that matter I would have thought that all traffic signs, by definition, are right next the object of their signage, e.g. pedestrian crossing, roundabout, roadwork, no parking, one way, clearway, etc, etc.

Regarding the VIC legislation and the standards, "Road Safety Rules 2017" states: "The traffic signs in Schedule 2 are those in the relevant Australian Standard (AS 1742) as well as some existing non-standard signs in common use that will continue to be used and some new signs." Logically, then, could it be argued that a standard sign must comply with the mentioned standard for the road rule to apply? Maybe a good reading of the Road Management Act 2004 would confirm this, e.g. s.27?


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