What is the Standard of Proof in Traffic Cases?

There is some confusion about the standard of proof in traffic cases, and justifiably so.

Much of the confusion arises from the personal experiences of our readers, who receive traffic infringements and are then given conflicting advice.

Many are adamant that they are  innocent.

Some point out that police relied upon guesswork or unscrupulous practices to book them – especially in cases of speeding.

But what level of proof is required in traffic cases, and what must be established for a person to be found guilty?

Standard of Proof in Traffic Cases

The “standard of proof” refers to the degree of evidence that is required to prove a case.

In civil cases, the standard of proof is “on the balance of probabilities”; in other words, more than 50%.

This basically means that whichever side is more convincing wins. Civil cases include debt recovery, neighbourhood disputes, family law disputes, commercial cases and even AVOs.

But in criminal and traffic cases, the required standard of proof is “beyond reasonable doubt”.

This means that the prosecution has an obligation to establish each of the ingredients of the offence beyond any reasonable doubt.

So, for example, if a court comes to the view that there is a reasonable possibility that the offence did not occur, you must be found ‘not guilty’.

Some offences may have three or four ingredients, and it is important to know that the prosecution must prove each and every one of them beyond reasonable doubt for you to be found guilty.

For example, in a high-range drink driving case, the prosecution must prove that you:

• Drove a car
• On a public road or road related area
• With a blood alcohol concentration of 0.150 or higher.

If they cannot prove one or more of those elements, you must be found ‘not guilty.’

Strict Liability

Traffic offences are often “strict liability offences”.

This means that the prosecution does not have to prove that you had an intention to commit the offence; for example, in drink driving cases they do not need to establish that you intended to drive whilst over the blood alcohol limit.

However, the prosecution still needs to prove each ingredient of the offence.

And there are also a number of legal defences that are available in strict liability cases, including where you made an “honest and reasonable mistake”.

What Evidence Can Police Use?

In order to support their allegations, police must be able to provide evidence of your alleged wrongdoing to the court.

Highway patrol cars are fitted out with a raft of technology which is used to detect offending.

They have sophisticated in-car camera systems which film what is happening in front of them.

This enables police to obtain video recordings of a person’s manner of driving, which is often used to support their case.

Police are also equipped with microphones, enabling them to record conversations with drivers.

There are also on-board radar systems which can be used to detect the speed of vehicles up to 600 metres away in a straight line.

However, under section 138(1) of the Evidence Act, courts have the discretion to exclude evidence that has been illegally or improperly obtained.

And in certain cases, admissions made to police can be excluded where they have been unfairly procured, such as where the police officer made a false statement in order to get you to make an admission.

For example, if you were pulled over by police who claimed that they clocked you speeding when they did not, and this led you to say that you were speeding, your admission may be excluded.

However, it should be noted that evidence that has been improperly or illegally obtained will not automatically be excluded.

Rather, the court will consider a range of factors when determining whether or not to admit the evidence, including:

• the importance and weight of the evidence,
• the seriousness of the case, and
• the nature and degree of the police illegality or impropriety.

What if I’m innocent?

Many people who receive speeding fines feel that they are too much hassle to defend – and they’re feelings are often justified.

After all, it can be easier and quicker to pay a few hundred dollars and lose a few demerit points then to go through the ordeal of fighting the case in court, especially if you’re thinking about paying a high-priced lawyer.

However, it’s important to know that you may be able to apply to the State Debt Recovery Office (SDRO) for a review of the penalty notice.

And if the offence was allegedly picked up by a speed camera, you can seek to obtain images through an application process that is outlined on the SDRO website.

Where the images show that you are innocent, they should be included in the letter contesting the fine.

If your case is more serious and you are required to attend court, you (or your lawyer) can certainly obtain materials such as images and ‘in car footage’ by issuing subpoenae to police and/or the RMS.

To lodge a subpoena, you (or your lawyer) will have to:

a) fill out the required form specifying the details of your case and the documentation you require,

b) file it at the court office, and

c) serve it upon the relevant body (eg police or the RMS) together with ‘conduct money’, which is a reasonable fee to the person or body upon whom you are issuing the subpoena to do what’s necessary to comply.

If the subpoenaed evidence is favourable to your case, you can then write to the police asking for the case to be dropped.

Such letters are known as ‘representations.’

If you intend to write representations yourself, they should be addressed to the Local Area Commander of the police station that charged you.

Written and video guides to writing representations can be found on our website.

Alternatively, an experienced traffic lawyer can draft compelling representations for you.

Some law firms offer free first conferences where you can get advice about the case against you, your options and the best way forward.