Receiving a speeding fine is usually no cheap ticket. However, to be charged without the use of a radar gun for speeding is unfair. In fact, the police can use their ‘expert’ knowledge to determine how fast you were speeding. This practice by the NSW police officer is not illegal and has been widely criticized in recent years. The infamous case of Chris Smith is well-known amongst the legal profession. This story looks at a truck driver who was caught speeding. After being questioned on it, the Senior Constable stated the following:
“I’m an expert in the courts at estimating speed, yes.”
The community got behind Mr. Smith when his video on Facebook reached over 1.2 million views.
According to the research studies, an eyewitness testimony is influenced by many cognitive factors. These factors include the particular make and model of the vehicle. For example, the studies indicate that cars such as BMW apparently ‘driver faster’ than Volkswagen Polos. The interesting thing to take from the studies is this, the cars were travelling at the same speed. The question of this practice and the legality is what we will consider next.
Police Officers And The Practice Of Estimation
There is a common misconception on the role a police officer has in these circumstances. One thing is for sure, it is not illegal for a police officer to use this practice of estimating the speed of any vehicle. However, when this practice is brought before the Court, evidence of this kind can always be challenged by experienced criminal lawyers. What it requires is a lawyer to analyse the circumstances from a forensic point of view.
The first point of the forensic analysis in this practice is to persuade the Court that an estimation of someone’s speed with a radar gun is consider opinion evidence under the legislation.
This is pursuant to Section 76 of the Evidence Act which states the following:
“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”
It is impermissible for a person to provide this type of evidence in Court. In other words, an ordinary citizen could not give medical advice to a hearing at court. Similarly, a police officer cannot make an estimation on how fast you were going unless an exception applies which is considered below.
As mentioned above, evidence provided by a witness is generally prohibited from expressing opinions. Opinions offered by witnesses are excluded because they are not experts or do not have specialised knowledge in the particular field in question. In this case, whether an general duty police officer can provide an estimation on how fast you were going.
However, evidence provided by an expert may be called as witnesses if they;
(1) possess ‘specialised or expert knowledge’; and
(2) provided their opinion ‘wholly or substantially based’ on that specialised knowledge.
This is consistent with the provisions of Section 79 Evidence Act 1995 (NSW). This is a provision our office has applied many times in the past. For example, late last year, Mr Moussa our Principal Lawyer persuaded the Court that the evidence provided by the Doctor was not specialised knowledge and therefore fell outside the scope of section 79. Click here to read the full story.
Are Police Considered Having Specialised Knowledge?
Police officers are not always considered specialist with knowledge on all criminal matters. Generally speaking, in addition to the general police training, highway patrol officers are provided with extra training including advanced driver training (this is involved with speed estimating) and learning to use the equipment of radar technology.
So while they can be considered in some circumstances experts, their opinions and estimations may in fact not fulfill the overall standard of proof which is ‘beyond reasonable doubt’.
When a police officer is estimating the speed of a vehicle, there are also a number of factors that must be considered which includes, but is not limited to the following;
i. The positing of the vehicle;
ii. The nature of the road;
iii. The direction the vehicle is travelling; and
iv. The weather conditions.
What Should I Do If Police Pull Me Over For Speeding?
As the saying go, less is more. If you do get pulled over for whatever reason, you are not obligated to say anything, and you are entitled to exercise your rights to silence. To avoid any issues, simply provide the police officer with your driver’s license to verify your identity. It is important to understand that there is no such thing as an “off the record” discussion with a police officer. Anything that you say to the police, may be used later as evidence in Court. In other words, the more you say, the less it helps. Remember, body worn footage is used against us not for us. Be smart and stay silent.