Author: A Criminal Defence Lawyer

Facts:

Our client is a car enthusiast, loves loud music and going to the gym.

He purchased a set of 2.5cm 12 volt LED strobe lights from a car supplies place – they type that can be plugged into the cigarette lighter socket and pulsate to the beat of the bass notes – the faster the music, the faster the light pulse – the louder the music, the brighter the light. The lights are commercially available in blue, red, green or white for the sum of $20. They carry a ‘warning’ that the lights should be turned off whilst driving. He purchased the blue variety and turned the music up loud to drive to the gym.

Police were waiting for traffic villains committing offences at a particular intersection controlled by traffic lights. Obviously, no serious crime was happening in the area. The car in front of our client turned into the street followed by our client. It was nighttime and the blue-light disco was in full swing.

The car in front pulled over and our client drove past. Police were focused on the blue lights and did a u-turn to stop our client outside the gym. Police did not attempt to speak with the driver who had pulled over, to see why he pulled over, nor did they notice that he did a u-turn and turned back on to the street from where he had driven – a perfectly good reason for pulling over you might think.

Police asked the client if he had been using the lights to pull over cars – he flatly denied this and promptly demonstrated to police how the lights worked, telling them that they were connected to his sound system. Police said they would defect his car – so he cut out the lights and handed them to police. One officer commented, “the lights are not that bad” and told him that probably no action would be taken.

Police charge:

A court attendance notice was sent to the client for the offence of Drive Vehicle That Has On It Police Insignia pursuant to section 203(4) Police Act – which carries a potential penalty of $11,000 and or up to 2 years imprisonment.

Prior Criminal Record:

The client had was on a good behaviour bond – if he was convicted of this allegation, it was highly likely that he would have been breached on the bond and re-sentenced for the original matter. Naturally, this concerned our client.

Legislation:

Section 203 Police Act carries the section header, “Wearing or Possession of Police Uniforms By Others”. Clearly it is intended for persons holding themselves out to be police officers or on police duty when in fact they are not. In brief, the subsections set out four ways in which a person can be in breach of the law:

(1) Wears or possesses uniform not being a police officer

(2) Manufactures or sells police insignia

(3) Uses police insignia (other than exercising functions of a police officer): and

(4) Drive/Possess non-police vehicle “that has on it any police insignia”.

Insignia is defined in subsection 8. Police insignia means:

(a) any items( being insignia, emblems, logos, devices, accoutrements and other things) that are generally recognized as pertaining to the NSW Police Force or as being used by police officer; or

(b) any parts of any such items, or

(c) any reasonable imitation of any such items or parts, or

(d) anything or class of thin prescribed by the regulations.

A statutory defence is set out in subsection 5 if the accused “establishes that the person had a reasonable excuse for the act or omission.”

Statutory Interpretation:

The lights detected by police are potentially capable of being a device. However, to satisfy the definition of insignia, they need to be “generally recognized as pertaining to the NSW Police Force or used by officers”. Without being turned on, they are merely a set of 12V lights. The colour of the pulsating strobe is not identifiable when the lights are off unless one relies upon the packaging. The globe and glass are a clear colour. Look at the photograph above – if you saw that item, you would not associate it with police duties. Unless the lights were turned on, or in use, they are incapable of being “generally recognized as pertaining to the NSW Police Force.”

It is the product itself, and not the use, that is the basis for an offence pursuant to section 203(4). If police relied upon the use of the lights, as they appear to given their reason for pulling over the client, they should have charged him pursuant to section 203(3) – they did not do so.

The subsection required that the vehicle has on it any police insignia. Not only are the lights incapable of being perceived as insignia without being turned on, they are not “on” the vehicle but rather “in” the vehicle.

It would be absurd that a person purchasing a red or blue lighting unit could be prosecuted for placing the light packet in their car having just bought them, yet a person buying the white or green could evade prosecution. It would be equally absurd that a person with the blue or red lights set up wherever they chose within the car, but not operating could be guilty of an offence under section 203(4).

The accused also relied upon the statutory defence. He had a reasonable excuse for having the lights within his vehicle – he purchased them commercially, plugged them into his cigarette lighter 12V outlet and turned on the music in his car. The product is not a banned or prohibited product.

Defended Hearing:

When the matter came before the local court, a not guilty plea was entered. The matter was set down for defended hearing. The solicitor, on instruction, raised his concerns about the case with the police prosecutor. A little known regulation under the Road Transport (Vehicle Registration) Regulation 2007 set out an offence that was appropriate -namely that a vehicle must not display a light that shows a blue light. The potential penalty was a fine of up to $2,200. The original charge was withdrawn and a plea entered to a breach of the regulation. The matter was dismissed pursuant to section 10 Crimes (Sentencing Procedure) Act. No action was taken on the bond.