Beating Myki fines in court
After claims he was wrongly fined over
a Myki touch-on error, software engineer Nick Seidenman took the matter
to court and explains how he managed to come out on top.
Most of the myki fines contested in court have been withdrawn or
dismissed, amid claims the government department responsible for the
problem-plagued technology is deliberately avoiding legal scrutiny.
Since
the system was introduced, 109 challenges to infringement notices have
been heard in the Melbourne Magistrates Court, and only six people who
turned up to court were fined. Another 17 who did not attend were fined.
Altogether
71 cases were dismissed or withdrawn, while 15 cases were adjourned.
And that, according to figures obtained by Fairfax Media, is even though
about 80 per cent pleaded guilty.
Leigh Mahoney next to a myki machine at
Southern Cross Station. He has successfully challenged myki infringement
notices in court. Photo: Pat Scala/Getty Images
But not one case where a person pleaded not guilty has proceeded
to a contested hearing, a spokeswoman for the Magistrates Court of
Victoria said.
Fairfax Media revealed last December that the Department of Transport
had received written and verbal advice that false myki readings,
administrative errors and poor calibration would damage the chances of a
prosecution in court.
In August, the department withdrew an
infringement notice against a Brighton woman and agreed to pay $383 in
costs just two days before she was to challenge the ticketing system in
court.
Ryan Heath was fined for not having a valid ticket while teaching others how to use the system.
The department had refused previous requests by the woman for myki performance, service and staff training records.
"The
department is not, and will not be, in possession of any service
records for any devices owned or operated by Public Transport Victoria
or Metro Trains," said department prosecutor Joe Connolly in a letter on
February 5.
Mr Connolly did not indicate where the information could be accessed.
Fairfax Media is aware of several other people who have had fines
withdrawn after requesting detailed information about myki readers,
calibration and servicing, and the legislation that regulates their
operation.
Andy Schmulow, a senior research associate at Melbourne
University's School of Law, had "virtually begged" the department to
issue him a court summons after he was fined on a Melbourne tram despite
topping up his myki account a day earlier. But the department would not
take him to court.
Mr Schmulow was told by a department
prosecutor that a failure to present a valid tram ticket was a crime of
"absolute liability" and he had no basis for an appeal.
"After examining the legislation, I found there were grounds upon
which the department could uphold an appeal," he said. "This lack of
understanding the legislation was simply inexcusable. Without
explanation, the infringement was quietly withdrawn."
Mr Schmulow
accused the department of "bluffing" public transport users. "They know
there are such serious defects either in the legislation or in the
technology and the myki system, that if it appears a passenger is
willing to challenge the infringement, then the department might as well
fold.
"Is this the reason why the department gave passengers the option to pay a $75 on-the-spot fine? Is this part of the bluff?"
A
Department of Transport, Planning and Local Infrastructure spokeswoman
said it was "ludicrous" to suggest there were any enforcement problems
with myki.
"There is a robust legislative framework in place to
deal with ticketing offences and the department successfully prosecutes
over 6000 ticketing matters annually," she said.
The spokeswoman insisted that contested hearings had proceeded to the Magistrates Court, but would not say how many.
But
this appears to be contradicted by a statement from the Magistrates
Court. "In the Magistrates Court, a contested criminal hearing is a
hearing where the accused pleads not guilty. Of the 109 cases that
resulted from the data request, none proceeded to the plea of not guilty
hearing type," the court spokeswoman said.
Another
department spokeswoman later said these cases were "not reflective of
the ticketing matters prosecuted annually by the department".
Court
data revealed that most people pleaded guilty and a majority had their
fines wiped. People who failed to attend court usually had fines upheld.
Fairfax
Media observed a man who claimed he was in a rush and did not have time
to touch on have his infringement notice dismissed by a judicial
registrar.
Public Transport Users Association president Tony
Morton said many people were discouraged from challenging fines because
of the cost and inconvenience.
"Public Transport Victoria is keen to avoid having to contest cases in court and in a lot of cases it's succeeding," he said.
Ryan
Heath was hired by a government subcontractor to teach Melbourne
commuters to use the system in 2012. Mr Heath was fined for not having a
valid ticket while trying to teach others to use the system at
Melbourne Central in January 2013. His problem was that he had touched
on to a machine that was offline.
"I'm there trying to help myki with all these problems and I'm getting fined. The whole thing was ridiculous," he said.
Mr
Heath said supervisors were often confused about how the system worked
and he frequently saw people fined after they had asked for help.
Like many other cases, Mr Ryan's matter was found proven but dismissed without penalty or conviction.
RMIT
researcher Adrian Dyer is determined to challenge the system after
pleading not guilty to failing to produce a valid ticket at Mount
Waverley Station.
Dr Dyer showed Fairfax Media a note signed by a
Metro Trains officer at his local station, which states: "When I
visually inspected the Myki readers with him, indeed it was hard to read
the screen."
There was no way for somebody to know whether they
had effectively swiped on the morning he was fined, Dr Dyer said, adding
that he always had funds on his card and had been using the system
without incident for more than a year.
"I'm not pleading guilty because I haven't done anything wrong," he said.
MYKI HORROR STORIES
LEIGH MAHONEY, 43, Murrumbeena
"I
have worked in the financial industry for 27 years and I have to sign a
declaration each year to confirm I haven't been convicted or charged
with any dishonesty offences. When they ran an advertising campaign that
compared fare evasion to stealing it was not something I could wear,"
Mr Mahoney said.
In court, Mr Mahoney had four defence arguments,
including anomalies in the Victorian Fares and Ticketing Manual and
concerns about the accuracy and maintenance of the myki system.
"I
wanted evidence on calibration around their readers. I wanted to know
what standards they are calibrated to and how often they are tested. I
had video evidence of scanners at Hughesdale not working, regardless of
how many times you touched on," Mr Mahoney said.
The Magistrate struck out the charges in February.
"These
cases block up days and days in the justice system. You've got
magistrates sorting out bullshit fines, when this money should be spent
fixing the system," he said.
NICK SEIDENMAN, 57, Tecoma
After
feeling confident he had touched on with his myki card at Upwey
station, Nick Seidenman was slapped with an infringement notice at
Melbourne Central when the gates failed to open.
"I said: 'I want
to go to court with this'. I know I'd topped up my card and swiped on.
The machine was right there and I got the beep and saw the flash," Mr
Seidenman said.
He said he had previously reported vandalism and
faults with myki readers to Metro officers, but the complaints were
often met with indifference.
"I'm a software engineer and I know a
bit about the protocols involved with this technology. I was confident
that if I requested the source code I could have identified a flaw
in
the system. I think they know it's flawed. Mine [infringement notice]
was withdrawn when I raised these concerns," Mr Seidenman he said.
Mr Seidenman urged other public transport users to dispute their fines in court when they believe myki technology has failed.
"Be polite, take your infringement notice and challenge it in court. You'll win," Mr Seidenham said.
MARK WIEMELS, 41, Flemington
Mr
Wiemels was issued with a $217 fine after he thought he'd swiped on at
Newmarket station. He said he had video evidence that proved a myki
reader at the station was often faulty.
"I went to court and
pleaded not guilty to begin with, but then I witnessed several cases
before me. The judge and the prosecutor were in total lock-step and
everyone who pleaded guilty had their fines waived."
"There was a
guy who said he was running late for the train and was going to miss
something and admitted he didn't have time to validate. Even he got off.
So I just pleaded guilty and they wiped the fine. The whole thing was a
farce, it was complete nonsense," Mr Wiemels said.
theage.com.au 14 Sep 2104
To be even more specific:
Note that the Victorian Infringements Court is not a constitutionally recognised court, as it is a computer.
Imperial Acts Application Act 1980 – SECT 8
PART II TRANSCRIBED ENACTMENTS Transcribed enactments
8. Transcribed enactments
[1688] I William and Mary Sess. II (Bill of Rights) c. II
12. That all grants and promises of fines and forfeitures of particular persons
before conviction, are illegal and void.
Legislation source:
http://www.austlii.edu.au/au/legis/vic/consol_act/iaaa1980240/s8.html
See also the Port of Portland v State of Victoria High Court case,
where WA Attorney General confirmed the Bill of Rights, on page 5.
Whereas all 7 justices confirmed the Bill of Rights Act (1688), and
Victoria’s Imperial Act Application Act (1980) on page 6 paragraph 13.
Port of Portland Pty Ltd v Victoria [2010] HCA 44 (8 December 2010)
Also regarding any forfeiture of property refer to
Attorney-General [NT] v Emmerson [2014] HCA 13 (10 April 2014), drug case, where only a court of competent jurisdiction can forfeit property.
