South Australian Police announced on 29 November 2018 that all prosecutions of speeding offences detected by hand held LIDAR guns would be withdrawn and that people who have been issued expiation notices could apply for a review. So what do you do if you are one of the affected drivers?
IF THE CHARGE IS BEFORE THE COURTS
If you have elected to be prosecuted and your matter is in court, in due course the charge will be withdrawn. That will happen when you next go to court. Or you can call the number of the prosecution unit which is listed in the top third of the charge sheet to confirm that the charge will be withdrawn. You might be entitled to costs, but you would have to make an application for costs before a Magistrate. If prosecution contact you to tell you that the charge is being withdrawn and you don’t need to attend court, you will lose your opportunity to apply for costs.
IF YOU HAVE ELECTED TO BE PROSECUTED BUT NOT YET RECEIVED A SUMMONS
If you have elected to be prosecuted and you have not yet received a summons to attend Court, then you will not receive a summons. It is unlikely that you will hear anything further from the Police or the courts at all.
IF YOU HAVE BEEN GIVEN AN EXPIATION NOTICE
If you have been given an expiation notice and not yet paid it, then SAPOL has asked that emails be directed to this address: email@example.com. This is not the usual address for reviews of Expiation Notices. Make sure that your request for review is sent to the above email address. You will need to include your name, address, date of birth and expiation notice number.
LIDAR devices are hand held speed guns. If you have been detected by a hand held gun, you would have been pulled over by a police officer and spoken to. Usually you would have been given a blue handwritten expiation notice at the time. Occasionally it is posted to you a few weeks later. However, as a general rule of thumb, you would have been spoken to a police officer at the time and handed a handwritten expiation notice.
If you receive a typed notice in the mail, then you would have been detected by a fixed or mobile camera. The SAPOL announcement does not cover these expiation notices.
There are two types of hand held guns in use in South Australia; LIDAR (or laser) and radar guns. It is difficult to know which type of gun was used by looking at the notice. I recommend that if you have been detected by a hand held gun, you should ask for a review. You will soon enough be advised what type of device was used.
WHAT ABOUT IF YOU HAVE ALREADY PAID THE FINE?
The announcement stated that reviews are available only to those people who have not yet paid their fines. The Expiation of Offences Act clearly allows for expiation notices to be withdrawn even after they have been paid if “the notice should not have been given with respect to the offence”, provided the application for withdrawal is made within 60 days of the date the notice was issued. SAPOL’s concession that fines and charges will be withdrawn is a clear admission that expiation notices for LIDAR detected speeding offences “should not have been given”.
If you have received a fine in the last 60 days and paid it, then there is a very good argument that the fine should be withdrawn pursuant to s16 of the Act and your money should be reimbursed and demerit points reversed. I recommend that you write in to request a review, stating:
“Section 16 of the Expiation of offences Act permits the withdrawal of a fine despite payment if the expiation notice should not have been given with respect to the offence”. The expiation notice should not have been given to me. I request that the fine be withdrawn pursuant to s16 of the Act”.
SAPOL has known about this evidentiary issue for over two years. There is a really good argument that the LIDARs should have been removed from operation back then. If you have been fined since September 2016 then I recommend that you send an email requesting that your fine be withdrawn. I don’t make any promises that your application will be successful. What I can guarantee is that if you don’t ask the question, then there is no chance that the fine will be reversed.