South Australian Current Acts South Australian Current Acts79B—Provisions applying where certain offences are detected by
photographic detection devices
(1) In this
section—
"average speed camera location" has the same meaning as in section 175A;
"owner", in relation to a vehicle, has the meaning assigned to the term by
section 5, and includes the operator of the vehicle;
"prescribed offence" means—
(a) an
offence against section 45A or 45C(1); or
(b) an
offence against this Act prescribed by regulation; or
(c) an
offence against the Motor Vehicles Act 1959 prescribed by regulation; or
(d) an
offence against the Heavy Vehicle National Law (South Australia)
Act 2013 prescribed by regulation;
"red light offence" means a prescribed offence relating to traffic lights,
traffic arrows or twin red lights defined by the regulations as a
red light offence;
"speeding offence" means a prescribed offence defined by the regulations as a
speeding offence;
"traffic arrows", "traffic lights" and "twin red lights have the same
respective meanings as in the Australian Road Rules .
(2) If a vehicle
appears from evidence obtained through the operation of a
photographic detection device to have been involved in the commission of a
prescribed offence, the owner of the vehicle is guilty of an offence against
this section unless it is proved—
(a) that
although the vehicle appears to have been involved in the commission of a
prescribed offence, no such offence was in fact committed; or
(b) that
a nomination made in a manner and form approved by the Minister and stating
the name and address of some person other than the owner who was driving the
vehicle at the time has been given—
(i)
by the owner; or
(ii)
if the owner is a body corporate—by an officer of
the body corporate acting with the authority of the body corporate,
to the Commissioner of Police—
(iii)
in the case of an expiation notice—within
28 days after an expiation notice in respect of the offence is given to
the owner; or
(iv)
in the case of an expiation reminder notice—within
14 days after an expiation reminder notice in respect of the offence is
given to the owner; or
(v)
if an expiation notice is not given—within
28 days after a summons in respect of the offence is given to the owner,
(or within such longer period as the Commissioner may allow if satisfied that
exceptional circumstances exist in the particular case); or
(i)
if the owner is a body corporate—the vehicle was
not being driven at the time by any officer or employee of the body corporate
acting in the ordinary course of the officer's or employee's duties as such;
and
(ii)
the owner does not know and could not by the exercise of
reasonable diligence have ascertained the identity of
the person who was driving the vehicle at the time; and
(iii)
the owner, or, if the owner is a body corporate, an
officer of the body corporate acting with the authority of the body corporate,
has furnished to the Commissioner of Police a statutory declaration stating
the reasons why the identity of the driver is not known to the owner and the
inquiries (if any) made by the owner to identify the driver.
Maximum penalty:
(aa) if
the vehicle appears to have been involved in an offence against
section 45C(1)—
(i)
where the owner is a body corporate—not less than
$10 000 and not more than $20 000;
(ii)
where the owner is a natural person—$5 000;
(a) in
any other case—
(i)
where the owner is a body corporate—$10 000;
(ii)
where the owner is a natural person—$5 000.
(2a) The expiation fee
for an alleged offence against this section is as follows:
(aa) if
the vehicle appears to have been involved in an offence against
section 45C(1) and the owner is a body corporate—an amount equal to
the sum of the amount of the expiation fee fixed by the regulations for an
alleged offence against section 45C(1) where the owner is a natural
person and a body corporate additional fee of $5 000;
(a)
subject to paragraph (aa), if the vehicle appears to have been involved
in a red light offence and a speeding offence arising out of the same
incident—
(i)
where the owner is a body corporate—an amount equal
to the sum of the amount of the expiation fees for such alleged offences where
the owner is a natural person and a body corporate additional fee prescribed
by regulation;
(ii)
where the owner is a natural person—an amount equal
to the sum of the amount of the expiation fees fixed by the regulations for
such alleged offences;
(b) in
any other case—
(i)
where the owner is a body corporate—an amount equal
to the sum of the amount of the expiation fee for the alleged offence in which
the vehicle appears to have been involved where the owner is a natural person
and a body corporate additional fee prescribed by regulation;
(ii)
where the owner is a natural person—the amount of
the expiation fee fixed by the regulations for the alleged offence in which
the vehicle appears to have been involved.
(2ab) A body corporate
additional fee prescribed by regulation for the purposes of
subsection (2a) must not exceed $5 000, but may be prescribed even
if the addition of the fee results in an expiation fee for an alleged offence
against this section of an amount exceeding the maximum expiation fee that
would otherwise be permitted to be prescribed by regulation under this Act.
(2b) If a court
convicts a natural person of an offence against this section constituted of
being the owner of a vehicle that appears from evidence obtained through the
operation of a photographic detection device to have been involved in the
commission of an offence against section 45A, the following provisions
apply:
(a) the
court must order that the person be disqualified from holding or obtaining a
driver's licence for such period, being not less than 6 months, as the court
thinks fit;
(b) the
disqualification prescribed by paragraph (a) cannot be reduced or
mitigated in any way or be substituted by any other penalty or sentence;
(c) if
the person is the holder of a driver's licence—the disqualification
operates to cancel the licence as from the commencement of the period of
disqualification.
(2c) If a court
convicts a natural person of an offence against this section constituted of
being the owner of a vehicle that appears from evidence obtained through the
operation of a photographic detection device to have been involved in the
commission of an offence against section 45C(1), the following provisions
apply:
(a) the
court must order that the person be disqualified from holding or obtaining a
driver's licence—
(i)
in the case of a first offence—for such period,
being not less than 6 months, as the court thinks fit; or
(ii)
in the case of a second offence—for such period,
being not less than 12 months, as the court thinks fit; or
(iii)
in the case of a subsequent offence—for such
period, being not less than 3 years, as the court thinks fit;
(b) the
disqualification prescribed by paragraph (a) cannot be reduced or
mitigated in any way or be substituted by any other penalty or sentence;
(c) if
the person is the holder of a driver's licence—the disqualification
operates to suspend the licence as from the commencement of the period of
disqualification;
(d) in
determining whether an offence is a first, second or subsequent offence for
the purposes of this subsection, any previous offence against this section
constituted of being the owner of a vehicle that appears from evidence
obtained through the operation of a photographic detection device to have been
involved in the commission of an offence against section 45C(1) for which
the person has been convicted or that the person has expiated will be taken
into account, but only if the previous offence was committed or alleged to
have been committed within the period of 5 years immediately preceding the
date on which the offence under consideration was allegedly committed.
(3) If there are two
or more owners of the same vehicle—
(a) a
prosecution for an offence against subsection (2) may be brought against
one of the owners or against some or all of the owners jointly as
co-defendants; and
(b) if
the case for the prosecution is proved and a defence is not established under
subsection (2)(a), the defendant or each of the defendants who does not
establish a defence under subsection (2)(b) or (c) is liable to be found
guilty of an offence against subsection (2).
(4) A prosecution must
not be commenced against an owner (other than a body corporate) for an
expiable offence against this section unless the owner has first been given an
expiation notice under the Expiation of Offences Act 1996 in respect of
the offence and allowed the opportunity to expiate the offence in accordance
with that Act.
(4a1)
Subsection (4) does not apply in the case of an expiable offence against
this section if the prescribed offence that the vehicle has appeared to have
been involved in is an offence against section 45A.
(4a) If, in the case
of an offence against this section constituted of being the owner of a vehicle
that appears from evidence obtained through the operation of a
photographic detection device to have been involved in the commission of an
offence against section 45C(1), there is a registered operator of the
vehicle, an expiation notice for the offence may only be given to, and a
prosecution for the offence may only be brought against, the
registered operator.
(5) If an offence
against this section is alleged, an expiation notice, an expiation reminder
notice or summons in respect of that offence must be accompanied by a notice
in the prescribed form containing—
(a) a
statement that a copy of the photographic evidence on which the allegation is
based—
(i)
will, on written application to the Commissioner of
Police by the person to whom the expiation notice, reminder notice or summons
is issued, be sent by post to the address nominated in that application or (in
the absence of such a nomination) to the last known address of the applicant;
and
(ii)
may be viewed on application to the Commissioner of
Police; and
(b) a
statement that the Commissioner of Police will, in relation to the question of
withdrawal of the expiation notice, reminder notice or information, give due
consideration to any exculpatory evidence that is verified by statutory
declaration and furnished to the Commissioner within a period specified in the
notice; and
(c) such
other information or instructions as is prescribed.
(6) If a
prescribed offence is alleged and the allegation is based on photographic
evidence obtained through the operation of a photographic detection device, an
expiation notice, an expiation reminder notice or a summons in respect of the
offence must be accompanied by a notice in the prescribed form
containing—
(a) a
statement that a copy of the photographic evidence on which the allegation is
based—
(i)
will, on written application to the Commissioner of
Police by the person to whom the expiation notice, reminder notice or summons
is issued, be sent by post to the address nominated in that application or (in
the absence of such a nomination) to the last known address of the applicant;
and
(ii)
may be viewed on application to the Commissioner of
Police; and
(b) such
other information or instructions as is prescribed.
(6a) If—
(a) an
expiation notice for a prescribed offence is given to a person named as the
alleged driver in a nomination under this section; or
(b)
proceedings for a prescribed offence are commenced against a person named as
the alleged driver in a nomination under this section,
the notice or summons, as the case may be, must be accompanied by a notice
setting out particulars of the nomination that named the person as the alleged
driver.
(6b) The particulars
of the nomination provided to the person named as the alleged driver must not
include the address of the person who made the nomination.
(7) If a person is
found guilty of, or expiates, a prescribed offence, neither that person nor
any other person is liable to be found guilty of, or to expiate, an offence
against this section in relation to the same incident.
(8) If a person is
found guilty of, or expiates, an offence against this section, neither that
person nor any other person is liable to be found guilty of, or to expiate, a
prescribed offence in relation to the same incident.
(9) In proceedings for
an offence against this section, a document produced by the prosecution and
purporting to be signed by the Commissioner of Police, or any other police
officer of or above the rank of inspector, and purporting to certify that the
defendant had, before the prosecution was commenced, been given an expiation
notice under the Expiation of Offences Act 1996 in respect of the
offence and allowed the opportunity to expiate the offence in accordance with
that Act will be accepted as proof, in the absence of proof to the contrary,
of the facts so certified.
(10) In proceedings
for an offence against this section or proceedings for a
prescribed offence—
(a) a
photograph or series of photographs produced by the prosecution will be
admitted in evidence if—
(i)
the photograph or series of photographs was produced from
exposures taken, or electronic records made, by a
photographic detection device; and
(ii)
the requirements of this Act and the regulations as to
the operation and testing of photographic detection devices were complied with
in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a
photograph or series of photographs will be accepted as proof, in the absence
of proof to the contrary, of the date, time and location at which the
exposures were taken or the electronic records were made by the
photographic detection device; and
(b) a
document produced by the prosecution and purporting to be signed by the
Commissioner of Police, or any other police officer of or above the rank of
inspector, and purporting to certify—
(i)
that a specified device used at a specified location
during a specified period was a photographic detection device; and
(ii)
that the requirements of this Act and the regulations as
to the operation and testing of photographic detection devices were complied
with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the
facts so certified; and
(c) if
it is also certified in a document of a kind referred to in paragraph (b)
that the device was designed and set to operate according to a specified
system during that period, it will be presumed, in the absence of proof to the
contrary, that the device was designed and set to operate according to that
system during that period and did, in fact, so operate.
(11) Where evidence
referred to in subsection (2) is evidence of the average speed of the
vehicle between 2 average speed camera locations calculated in accordance
with section 175A—
(a) the
time of commission of the offence will be taken to be the period during which
the vehicle travelled between the 2 locations; and
(b)
subsection (2)(b) applies as if the reference to "the name and address of
some person other than the owner who was driving the vehicle at the time" were
a reference to—
(i)
the name and address of each person other than the owner
who drove the vehicle during the time of commission of the offence; or
(ii)
the name and address of each such driver whose name and
address is known to the owner and, in relation to every other driver of the
vehicle during the time of commission of the offence, the reasons why the
identity of the driver is not known to the owner and the inquiries (if any)
made by the owner to identify the driver; and
(c) if
the owner is not a body corporate, a nomination furnished to the Commissioner
of Police under subsection (2)(b) must also state whether or not the
owner was also a driver of the vehicle during the time of commission of the
offence; and
(d)
subsection (2)(c) applies as if—
(i)
the reference in subparagraph (ii) to "the person
who was driving the vehicle at the time" were a reference to any person who
was driving the vehicle at the time; and
(ii)
the reference in subparagraph (iii) to "the reasons
why the identity of the driver is not known to the owner and the inquiries (if
any) made by the owner to identify the driver" were a reference to the reasons
why the owner does not know the identity of any driver and the inquiries (if
any) made by the owner to identify a driver; and
(e)
subsection (7) only applies to the person who is found guilty of, or
expiates, the prescribed offence and subsection (8) only applies to the
person who is found guilty of, or expiates, the offence against this section.
(12) The Commissioner
of Police may require a person who makes a nomination under this section to
verify the information contained in the nomination by statutory declaration.
(13) If the
Commissioner of Police believes that a nomination under this section has been
made in error, the Commissioner may permit the nomination to be withdrawn and
a new nomination to be made.
(14) A person must
not, in making a nomination for the purposes of this section, make a statement
that is false or misleading in a material particular.
Maximum penalty: $25 000 or imprisonment for 4 years.