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wrong person convicted lawyer

Is it a case of mistaken identity?

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An important component of any prosecution involves identifying the perpetrator of any criminal act. It is equally important in traffic matters but potentially difficult where there are lots of vehicles on the road of a similar make, model, and colour. Even more so on a motorbike when people wear helmets.

Have they identified you the perpetrator?

There are definitely instances where an offending bike/car has not stopped, and the police believe that they have the registration number and go knocking on the registered owner’s door. That doesn’t mean they necessarily have the right rego number but they believe they do. At law they are entitled to make a demand on the responsible person often the registered owner to provide the name and details of the person who was driving or riding the vehicle at a relevant time. Further they can advise you that a failure to provide that information is an offence.

ROAD TRANSPORT ACT 2013 – SECT 177

Requirement for responsible person to disclose driver identity

177 Requirement for responsible person to disclose driver identity
(cf Gen Act, s 173)
(1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation:

(a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, […]

Maximum penalty: 20 penalty units.

(2) It is a defence to a prosecution for an offence against subsection (1) (a) if the defendant proves to the court’s satisfaction that the defendant did not know and could not with reasonable diligence have ascertained the driver’s name and home address.

[…]

But what happens if they have the wrong rego number or you are unaware who may have taken your vehicle. There are many instances where police or members of the public get a fleeting glance at a vehicle and memorise a number which could be wrong. Further this flies in the face of your right to silence or no self-incrimination and some may decide to say nothing and risk a charge pursuant to the above legislation than incriminate themselves to a potentially more serious charge.

Similarly even where a person is pulled over and identified it does not mean that the car or bike they saw was the offending vehicle. A case that comes to mind is where a group of riders were coming back from a ride on a Sunday afternoon from the South Coast. A rider who wasn’t in the group had tagged along. In the distance a number of police vehicles could be seen stopping bikes. The tagalong rider on observing this pulled to the side of the road as my client and his friends were almost alongside the police vehicles he took of accelerated hard and went past my client and his friends. My client and his friends kept travelling but to my client’s surprise a highway patrol vehicle cut him off. He was slammed onto the bonnet of the car handcuffed and taken to the police station. Again on advice he told the police it wasn’t him. We defended the charges and with the evidence of my client and other witnesses established that my client’s bike was a black Kawasaki and the offending bike was a black Yamaha.

So again keep in mind that with the similarity in bikes and colours that proof of identity, which is fundamental to the prosecution case can be flawed. Especially where the rider was not apprehended at the time and place where the incident occurred. So in a case where police allege someone has done a runner and you happened to be pulled over kilometres away be cautious in making admissions as the bike or car seen may not have been you. Further this is an instance where it might be advisable to agree to attend the police station and do so with a solicitor.

Don’t assume guilt if you haven’t perpetrated. Police do get it wrong sometimes

Similarly even where a person is pulled over and identified it does not mean that the car or bike they saw was the offending vehicle. A case that comes to mind is where a group of riders were coming back from a ride on a Sunday afternoon from the South Coast. A rider who wasn’t in the group had tagged along. In the distance a number of police vehicles could be seen stopping bikes. The tagalong rider on observing this pulled to the side of the road as my client and his friends were almost alongside the police vehicles he took off and accelerated hard and going past this rider and his friends. The rider and his friends kept travelling but to their surprise a highway patrol vehicle cut him off. He was slammed onto the bonnet of the car handcuffed and taken to the police station. Again on advice he told the police it wasn’t him. The charges were defended and with the evidence of the rider, and other witnesses established that the rider’s bike was a black Kawasaki and the offending bike was a black Yamaha.

Always keep in mind that with the similarity in bikes and colours that proof of identity, which is fundamental to the prosecution case can be flawed. Especially where the rider was not apprehended at the time and place where the incident occurred. So in a case where police allege someone has done a runner and you happened to be pulled over kilometres away be cautious in making admissions as the bike or car seen may not have been you. Further this is an instance where it might be advisable to agree to attend the police station and do so with a solicitor.

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