Should a good travel history entitle you to a warning? Credit:Eddie Jim After questions were asked about the enforceability of the problem-plagued technology in April last year, the department denied there had been any failed prosecutions, saying it had proven its case in seven contested hearings since November. "In each of these, the department's case has been found proven," a department spokeswoman said, but declined to provide details of the cases. It has since been discovered that at the time of those comments, the department's case against commuter Shane Arch had failed at a contested hearing in which Magistrate Mealy was critical of the ticketing system and scathing of the department's lack of trial evidence. A department spokeswoman said the case was not previously disclosed because it did not relate to myki technology.

"A broader search of the department's database shows that there have been 28 contested ticketing cases since January 2013," she said. "Of those cases, there were two (including Mr Arch's) where the prosecution case was not found proven." Representing himself in court, Mr Arch said when his card would not touch on at Sunbury Station in September 2013, a transport employee told him to continue his trip to Flagstaff where he could move his balance of $100 to a new card. At Flagstaff he told another employee about his card and this person took him through the gates, towards the booths to get a new card when an authorised officer fined him, he said. "The signs at the station say you must have a ticket, I had a ticket and your facilities let me down and I did everything in my power that day to rectify it," he said. Magistrate Mealy said the steps Mr Arch would have had to take to get a ticket were excessive and dismissed the charge. "He's taken all reasonable steps that were available to him at the time of seeking to touch on, the additional actions in terms of getting a new card were unreasonable in the circumstances," he said.

Barrister Julian Burnside QC, who accused the department of "bullying" commuters, has gathered a team of junior barristers who will next month descend on magistrates' courts in Melbourne, Broadmeadows and Sunshine to represent people contesting their fines. "I suspect there will be a lot of cases withdrawn," he said. In September 2014, the department claimed contested hearings proceeded to court regularly, in an attempt to demonstrate the ticketing system could withstand legal scrutiny, and described whistleblower claims of enforcement problems as "ludicrous". But this was contradicted in 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," a court spokeswoman said.

Fairfax Media revealed in 2013 that the Department of Transport had been warned by staff that the problem-plagued myki technology could not withstand legal scrutiny. A former contractor said he had provided the department with written and verbal advice that false readings, administrative errors and poor calibration of machines would damage the chances of a successful prosecution in court. "As a prosecutor, you have an ethical duty to the court and I would regularly explain to them that this system won't stand up to scrutiny. They [the transport department] don't want it to be tested in court, they just want the revenue. They need to prove beyond reasonable doubt and they simply can't." Although a department spokeswoman denied it had received any advice that made it doubt its ability to prosecute myki fines, an insider insists concerns the technology would buckle under legal scrutiny had underpinned the introduction of cheaper on-the-spot fines in 2013.