A correspondent, along with

… numerous other motorcycle riders provide motorbike escorts during cycling road races. These events are under special permits and we ride under the supervision of QLD Police.

During these events the motorbike riders use numerous warning lights as a safety measure as we are frequently in hazardous situations. The lights we use are similar to Police only amber. We have been instructed by the Police not to use our hazard lights as we are then not able to use them to indicate turns. – All good so far.

These events are frequent and most of the riders have the lights permanent fixed to the bikes but only use them when appropriate. Much the same as a large number of trucks on the road today.

Police have advised me today that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”. The alternative of removing and reinstall them multiple times a year is just not viable.

The Police have suggested that we obtain a “Special Purpose” status however for the life of me I have been unable to find out how. I have even spoken to QLD Transport and they stated that they have never struck this type of request, especially for a motorbike and are unsure where to direct me.

A second email added:

I have since been able to obtain advice from the Vehicle Standards area of QLD Transport and they advised me (over the phone) that our vehicles are deemed “Special Purpose” (a determination was made some time ago after a similar call) and the use of the lights is legal and providing we are using them in accordance with the regulation. They declined to put this in writing which I am still perusing as the Police have stated without written documentation they want us/me to go to court. I have pointed them to the relevant section of the regulation, however they have further stated it is up us to prove the lights are legal.

The relevant provisions are the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).  These rules require vehicles to comply with the Vehicle Standards set out in Schedule 1.   Rule 99(1)(b) says ‘a special use vehicle may be fitted with 1 or more flashing yellow lights’   A ‘special use’ vehicle (r 99(6)) is

(a) a vehicle built or fitted for use in hazardous situations on a road;

(b) an oversize light vehicle authorised to be driven on a road under a guideline or permit issued under part 3;

(c) a vehicle built or fitted to accompany—

(i) a vehicle mentioned in paragraph (b); or

(ii) a heavy vehicle that—

(A) is an oversize vehicle within the meaning of the Heavy Vehicle National Law (Queensland); and

(B) is being used on a road under a mass or dimension exemption within the meaning of that Law;

(d) a vehicle, whether or not a school bus, fitted with warning lights and warning signs under the Transport Operations (Passenger Transport) Standard 2010, schedule 1, part 4, section 19 or 25(1).

The relevant definition in this context is ‘a vehicle … fitted for use in hazardous situations on a road’.

The problem then becomes what is a ‘special permit’.  The Transport Operations (Road Use Management—Accreditation And Other Provisions) Regulation 2005 (Qld) provides for special event and special circumstances permits.     I would infer that bicycle races are probably subject to a special event, rather than special circumstances, permit.    A special event permit is issued to allow event organisers to use the road in circumstances where ‘conduct of the event involves, or may reasonably be expected to involve, some inconsistency with the requirements of any of the following— the Vehicle Standards and Safety Regulation; the Queensland Road Rules’ (r 102).    One of the inconsistencies may be that escort motorcycles will be fitted with flashing yellow lights. To actually determine the position, it would be necessary to see the terms and conditions of any permit that has been issued and whether it says anything about escort vehicles.  A special event permit may include conditions regarding ‘the display of warning signs and warning lights’ (r 103(5)).

If the permit refers to the need for escort vehicles and allows or requires the fitting of yellow flashing lights it may be inferred that it is understood that this is permission contrary to the the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) (r 104) in which case it would equally be inferred that the intention is not to allow the yellow lights to remain on the bikes after the special event.

Where does that leave my correspondent?  The advice ‘that none of us can have these permanently fitted to our bikes without our vehicles being deemed “Special Purpose”’ is correct but the question is who is to decide that?  The definition is set out in the regulation, the DoT may issue a permit or registration to that effect but clearly they are not prepared to do so.  It then becomes the unhelpful conclusion that if the bikes are ‘fitted for use in hazardous situations on a road’ they are a special purpose vehicle, if they are not so ‘fitted’ then they are not.  The ultimate judge is … a judge.  If the police and/or the DoT don’t think the bikes fit that definition they could issue a fine and it would be necessary to go before a court and ask a judge or magistrate to rule on the matter.

A critical piece of evidence would be the special circumstances permit. If both the obligation, and permission to, install the yellow lights is set out in the permit, then prima facie the person issuing that permit thinks that fitting the lights would, otherwise, be contrary to the Vehicle Standards and that is why they are now giving permission.  That again would not determine the matter but would certainly be evidence.

It is of course wrong for the police to say that ‘is up us to prove the lights are legal’.

 Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal.  (Woolmington v DPP [1935] AC 462).

Unless there is a specific statutory provision shifting the burden of proof (and there may be hidden in some traffic legislation somewhere) then the burden of proof will be on the prosecution. If the matter went to court they would have to prove, beyond reasonable doubt, that the fitting of the lights contravenes the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld), not the other way ‘round.