My Latest AiLL: Parking not completely within the bay

[Jonathanr]

This was the second of two infingement notices for the same offense. In the notional state of Victoria, Australia, you pay the extortion amount, or request to have the matter heard in court (Magistrates' Court).

Today was the final hearing, following a 'mention', and 'contest mention'. The mention was just me being jerked around by the prosecutor (Brian Moore) who had somehow got an ex-parte hearing scheduled. This was done in the morning of the day that the 'mention' was scheduled, except that the mention was scheduled for 14:00. I was told verbally by the court coordinator that the ex-parte hearing had been scheduled, and that I would receive notice of the time and date in the mail. I didn't, of course.

However, knowing that something was happening, and having a verbal of the time and date, I could look it up on the online docket.

At the ex parte hearing, which turned into a 'contest mention', probably because I turned up and ruined the ex parte bit, the magistrate attempted to elicit statement from me regarding what my issues were with the matter. At that point, I didn't have my head completely around Marc's suff, so I simply said that I was not here to assist the prosecution to prepare their case. If there was in fact a case, then it should be heard. In hind sight, I should have raised 'evidence of a complaining party' and 'corpus delicti' at that point. So today was the hearing.

I hadn't pled the charge at this point (in fact the court didn't formally receive a plea - ever). The closest thing to a plea was my affirmative response to the question of whether I was to contest the matter.

Before that point, when I was asked if I understood the charge, I objected; I said I understood the allegation, but asked the magistrate if there was evidence of a complaining party. This threw a spanner in the works, with puzzled looks all 'round. The magistrate asked about the relevance of my question, to which I responded that it was a point of jurisdiction, with the question of if this was an adversarial proceeding, to which he affirmed. He also said that he believed that he had jurisdiction. I suggested it wasn't a point of belief, but one of evidence. From there, I asked how many parties were necessary for an adversarial hearing (not as eloquently as that). Failing to get any response or responsive answer, I simply said that for the record, there is no evidence of a complaining party, and specifically stated that my objection was to preserve the issue for appeal.

I could have pushed further with the point of corpus delicti, but I didn't want to get the magistrate totally offside, and end up in the slammer like Ian Freeman. So I let the court proceed from there.

The brief of evidence listed two witnesses, of which one was present. After the prosecutor's summary, the single witness took the stand, and after the preliminary crap, the prosecutor started asking what he saw, and then presented photos of the vehicle 'not parked within the parking bay'. I objected to the presenting of the photos, that they lacked foundation. This objection cause a rumpus, because the magistrate asserted that I couldn't object yet, because the photos had not been tendered as evidence.

The witness said that there were 'three or four' enforcement officers at the carpark at the time.

In my cross examination, I asked how many officers were present, (no affirmative answer), who the officers were, and who weilded the camera that took the photos. The witness stated that he witnessed the photos being taken, but couldn't identify who it was that took the photos. I asked him if the officers present at the time were part of a work team, to which he affirmed. I asked how many worked in his team, to which he responded, about 18. I asked if he knew the names of the people with whom he worked, well enough to interact on a social basis. Then I asked him if he knew his collegues well enough on a social level, and stated that he witnessed the photos being taken, how he could explain to the court why he could not identify who it was who took the photos. I also asked if it was the other witness lsited (who didn't attend the hearing), to which he responded negative. So we had some photos that the prosecution was itching to use as evidence, but for loss of the identity of the photographer, they weren't actually tendered. This kind of killed the cross-examination at that point.

The prosecutor then argued Section 86 of the Road Traffic Act, which is the bit about the registered owner of the vehicle being liable for the offense. The small problem with that, was that there was no evidence tendered to show who the owner of the vehicle was.

My submission summed up these defects, and then the magistrate stood the matter down, while he left and pondered the case for probably more than 30 minutes (more likely 45mins - I didn't set the stopwatch).

He came back, and said that he was convinced that an offense occured, but that there was no evidence to link me to the offense, so the prosecution failed.

I was free to go.

What I amazed at, was that this was the second of two identical matters, prosecuted by the same Brian Moore, and the first one also wend down on the issue of vehicle ownership. The first time, Mr Moore failed to provide the legislation and legal argument to effect that link. This time, while he provided the legal argument (of sorts), he failed to provide any evidence to support his argument.

All in all, it was a good learning experience, if somewhat time consuming.

[NonEntity]

Bravo! Good work.

- NonE