Cyclist hit by car challenges police over fine - Fairfax

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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Mulger bill » Tue Oct 29, 2013 9:11 pm

It's never not deserved with you Womble :P

[mod]Craig, no reason I can see for one of your posts to not appear, languaged or not. No idea what went wrong, sorry[/mod]
...whatever the road rules, self-preservation is the absolute priority for a cyclist when mixing it with motorised traffic.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby cowled » Tue Oct 29, 2013 9:17 pm

Mulger bill wrote:It's never not deserved with you Womble :P

[mod]Craig, no reason I can see for one of your posts to not appear, languaged or not. No idea what went wrong, sorry[/mod]


I must have clicked the wrong button then. Pity, it was a decent rant.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Mulger bill » Tue Oct 29, 2013 9:19 pm

Now, on a personal note...
Winston, as a long serving servant of the people of Victoria I take enormous offence to the 12m wide brush your inflammatory post uses to slander ALL of my ilk but as a sign of my integrity I will not do anything to it or you in a moderate sense. I will say that until now I have thought highly of your contribution to BNA.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby il padrone » Tue Oct 29, 2013 9:45 pm

Mulger bill wrote:Now, on a personal note...
Winston, as a long serving servant of the people of Victoria I take enormous offence to the 12m wide brush your inflammatory post uses to slander ALL of my ilk

+1

According to ABS records he has just grossly libelled some 1.9 million Australian citizens. Great work fighting from the keyboard :|
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby AUbicycles » Tue Oct 29, 2013 10:46 pm

Mod Says: Without suggesting that this topic is any less serious - an unacceptable post was removed with comments that simply have no place in the forum.

As explained before - but for the benefit of people who are not aware - If questionable/offensive content is posted the author takes full responsibility and liability for it. But, I have to deal with the mess and also don't want the forum to host questionable content so also remove it as soon as I am alerted. It means - think before you post.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby human909 » Tue Oct 29, 2013 11:09 pm

cowled wrote:So, the internal investigation is apparently coming to a conclusion, I'm told. Although I haven't received any written advice on this, I understand that the investigating officers will be 'disciplined'.

As for the driver of the Jeep, it looks as though the Forensic Crash Unit won't be recommending any further charges against him. Don't ask me why. I have done all my homework on this and I cannot understand how the incident can be viewed as anything other than "dangerous operation of a motor vehicle causing grievous bodily harm". I'm absolutely gutted! Even after viewing the footage, they somehow think that this driver's actions did NOT pose a risk of injury to persons on or likely to be on the road (i.e., ME!). EDIT: Perhaps they have some warped view of the world where cyclists are somehow inviting injury because we have the gall to ride a bike on the road.


That is very disappointing to hear. :cry: Unfortunately I can't say I am surprised. In fact it is what I expected.

There is plenty of precedence to indicate that the police, magistrates and juries do not consider an overtake to be unsafe even if a collision occurs. This is absolutely bizarre because in any other circumstance the fact that the collision occurred would be evidence enough. In a work environment even a close call would need to be reported as a near miss.

I would love to see this pushed hard and taken further. Change needs to happen and it won't happen unless such bias against cyclists is highlighted. But obviously sometimes pursuing these things as an individual is though.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby GeoffInBrisbane » Wed Oct 30, 2013 4:38 am

Well, as another public servant, it did read a bit like Shaun's interpretation to me. :cry:

Back on topic, Craig please try to keep up the pressure (I know you will :) ). Whitewashing something like this is completely unacceptable. :evil:
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby BastardSheep » Wed Oct 30, 2013 7:46 am

The most common argument used by those opposed to a 1m or 1.5m safe passing distance that I've seen is that it would force police to use that arbitrary distance and stop police from being able to use reasonable judgement to decide what a safe passing distance is.

From this thread, it's appearing as though negative distance, being _under_ a vehicle is now "safe passing distance" according to the "reasonable judgement" of Queensland police.

I wonder if this would fly in a vehicle-vehicle accident, whether they'd accept the drivers gave reasonable distance in a collision between two vehicles, or a drunk driver throws their car into the front of a house.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby gretaboy » Wed Oct 30, 2013 8:21 am

cowled wrote:So, the internal investigation is apparently coming to a conclusion, I'm told. Although I haven't received any written advice on this, I understand that the investigating officers will be 'disciplined'.

As for the driver of the Jeep, it looks as though the Forensic Crash Unit won't be recommending any further charges against him. Don't ask me why. I have done all my homework on this and I cannot understand how the incident can be viewed as anything other than "dangerous operation of a motor vehicle causing grievous bodily harm". I'm absolutely gutted! Even after viewing the footage, they somehow think that this driver's actions did NOT pose a risk of injury to persons on or likely to be on the road (i.e., ME!). EDIT: Perhaps they have some warped view of the world where cyclists are somehow inviting injury because we have the gall to ride a bike on the road.

I've got a 10 page draft of a letter that is going to be fired off quick smart to the Director of Public Prosecutions (and the Attorney General, and the Minister for Transport, and the Chair of the Parliamentary Inquiry into Cycling Issues, and my local MP) as soon as I get written advice of the conclusion of the internal police investigation.

Not at all happy right now. I've got two police officers telling me that they both think more serious charges are warranted and at the same time wringing their hands and pointing to the Forensic Crash Unit who apparently don't think more serious charges are called for. What a joke! I'd be willing to bet some good money that they actually do think dangerous driving is an appropriate charge but they want to save face with the police ... plus, they probably think that juries are predisposed to hate cyclists (because we only make up 2% of the population). GRRRRRRrrrrrrr!!!!!


Broad brush time: This is typical Police internal investigations covering their own. The statement "investigating officers will be 'disciplined'" is typical. Nothing at all will happen to the Police officers except maybe a note in their personal file.

It is amazing how the Police internal system works and how officers apply the law. A lot of good police but also a lot of lazy ones...and I mean a lot. But what can you expect from a system that really has no accountability for money spent, got to love public service systems.

If you had the money, sue them. More often than not, after they realise you are serious and have a good legal team, they will throw money at you to go away. They do not want the bad publicity associated with a court case.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby The 2nd Womble » Wed Oct 30, 2013 8:32 am

BastardSheep wrote:The most common argument used by those opposed to a 1m or 1.5m safe passing distance that I've seen is that it would force police to use that arbitrary distance and stop police from being able to use reasonable judgement to decide what a safe passing distance is.

From this thread, it's appearing as though negative distance, being _under_ a vehicle is now "safe passing distance" according to the "reasonable judgement" of Queensland police.

I wonder if this would fly in a vehicle-vehicle accident, whether they'd accept the drivers gave reasonable distance in a collision between two vehicles, or a drunk driver throws their car into the front of a house.

The Assistant Police Commissioner who is a former Police Prosecutor confirmed that this is the case and is currently the best way to determine whether to lay more serious charges or not. The law protects your right to life once you're in a wooden box.
Busy atm but I will try to paste the excerpt from the roundtable roundtable transcript later today.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby cowled » Wed Oct 30, 2013 9:54 am

Post 1...

The Queensland Benchbook defines Grievous Bodily Harm in three ways. One of those definitions is "any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health; whether or not medical treatment is or could have been available."

Judges are advised by the Benchbook to direct juries as follows: "The jury must disregard the availability or not of any medical treatment. When deciding that question they are only to have regard to the nature of the injury itself. If left untreated would the injury have amount to the defined result."

http://www.courts.qld.gov.au/__data/assets/pdf_file/0020/86150/sd-bb-114-grievous-bodily-harm.pdf

A compound fracture of a large bone clearly qualifies as GBH.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby cowled » Wed Oct 30, 2013 11:57 am

Post 2...

According to the Queensland Benchbook, the prosecution must prove the following three elements to convict a person of Dangerous Operation of a Motor Vehicle:
(1) Operated, or in any way interfered with the operation of, a motor vehicle;
(2) In a place, namely: ........ ;
(3) Dangerously.


There are other elements that are required if the prosecution is trying to prove aggravated circumstances.

The Benchbook then goes on to detail what qualities might be assessed in order to determine whether the defendant was driving dangerously:
The term "operates a motor vehicle dangerously" means "operates a vehicle at a speed or in a way that is dangerous to the public having regard to all the circumstances" including:
“(a) the nature, condition and use of the place; and
(b) the nature and condition of the vehicle; and
(c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and
(d) the concentration of alcohol in the operator’s blood; and
(e) the presence of any other substance in the operator’s body.


Also,
The operation of a vehicle includes the speed at which the vehicle is driven and all matters connected with the management and control of the vehicle by the driver, such as keeping a lookout, turning, slowing down and stopping.


I would suggest that overtaking manoeuvres are also a "matter connected with the management and control of the vehicle."

The expression "operates a vehicle dangerously" in general does not require any given state of mind on the part of the driver as an essential element of the offence. A motorist may believe he or she is driving carefully yet be guilty of operating a vehicle dangerously. "Dangerously" is to be given its ordinary meaning of something that presents a real risk of injury or damage. The ordinary meaning of ‘dangerous’ is ‘fraught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.


Considering that just 2 seconds prior to impact, I was positioned closer to the middle of the lane than the left of the lane, it is surely obvious to anyone with eyes that a person trying to overtake IN the lane was driving in a manner which gives rise to a risk to a cyclist. The same manoeuvre performed when overtaking a car would not have the same degree of risk to the body of a motorist. This is where police get it majorly wrong by treating cyclists in the same manner as any other vehicle. The level of risk to a person's body is significantly different.

The prosecution must prove that there was a situation which, viewed objectively, was dangerous. For the driving to be dangerous, there must be some feature which is identified not as a mere want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasions, drive with less then due care and attention.


Now I can show video evidence that every other vehicle overtaking me was able to do so safely. Jeep driver's actions clearly subjected one member of the public (myself) to a "risk over and above that ordinarily associated with driving".

Btw, the driver admitted that he was attempting to overtake me IN the lane, so he cannot argue inattention or some other thing. In any case, inattention is not an excuse:
Momentary lapses of attention on the part of the driver, if they result in danger to the public, are not outside the ambit of the offence of dangerous operation of a motor vehicle merely because they are brief or momentary. If a driver adopts a manner of driving which is dangerous in all the circumstances of the case to other road users it does not matter whether they are deliberately reckless, careless, momentarily inattentive or even doing their incompetent best. However, the prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others.


All of the above is absolutely satisfied in my case. Serious breach? Damn straight! "A cyclist is entitled to his wobble" is a principle of common law. I was given no wobble room. No speculation is required. I really was placed in a dangerous situation over which I had no means of escaping.

Now, the last paragraph is what the police seem to focus on ...
The consequences of the defendant's acts or omissions cannot add to the criminality of his driving. The quality of being dangerous to the public does not depend on the resultant damage. Whilst the immediate result of driving may afford evidence from which the quality of the driving may be inferred, it is not the result which gives that quality.


For some reason, they seem to think that the action of the driver was not dangerous. Umm, sorry but Jeepman was overtaking a cyclist without changing lanes while that cyclist was positioned closer to the middle of the lane than the edge of the lane. Any reasonable person could see that such an action was dangerous regardless of the eventual outcome. Indeed, the driver's actions would have been dangerous even if he did not hit me.

As far as I can see, all the elements of "Dangerous operation of a motor vehicle causing grievous bodily harm" are met. I'm betting that the Forensic Crash Unit know it too. They probably think that a jury would be predisposed to dislike cyclists (hard to argue with that one given the Pollett outcome). What a lazy attitude, eh? Why not put it to a jury and let them decide for themselves? Better yet, why doesn't this Jeep driver just hand himself in and ask to be charged with dangerous operation?

http://www.courts.qld.gov.au/__data/assets/pdf_file/0019/86131/sd-bb-103-dangerous-operation-of-a-motor-vehicle-s-328a.pdf
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby human909 » Wed Oct 30, 2013 12:16 pm

Jeep driver's actions clearly subjected one member of the public (myself) to a "risk over and above that ordinarily associated with driving".


As far as the police and the majority of the public is concerned this is not the case! Passing a cyclist without changing lanes is consider to be perfectly fine and acceptable by the police and the community. Squeezing past a cyclist at high speed is considered a normal part of driving. The police themselves do this, so of course they are reluctant to prosecute.

The community and the police believe that cyclists are taking great risks being on the road. So they then blame the cyclists for the consequences.


Safety on the roads wont change until we can get this lack of prosecution addressed. I would love to see this taken further.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Xplora » Wed Oct 30, 2013 12:34 pm

Does this begin to engage in the concept of strict liability? In the event of a collision, surely the onus is on the driver of the car until we see otherwise? There cannot possibly be any other interpretation if cowled's video demonstrates he maintained a straight line on the road?

Unless the steering column collapsed or the brake lines failed, the driver is responsible for their vehicle - the rest is just drivel from the racial discrimination handbook. Ultimately, who cares what the driver thought? They thought wrong, and the Crimes Act/Road Rules seems to be pretty clear cut that once you've driven into someone that you've failed to drive safely, even by the lame "no crash, no crime" bar.

I think it really does set a golden standard for police work - if they can't find charges for this incident, then they really don't deserve to exercise discretion any longer.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby arkle » Wed Oct 30, 2013 12:46 pm

What's the next step cowled?

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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby cowled » Wed Oct 30, 2013 6:12 pm

arkle wrote:What's the next step cowled?

arkle


For now, I wait.

I can't begin to take further action until I have received written advice from the QPS regarding the outcome of their internal investigation. Mind you, I am preparing by seeking legal advice. Given the advice from the police officer, I am a little pessimistic about the legal advice (which is still pending).

So, I wait.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby ironhanglider » Thu Oct 31, 2013 6:22 pm

I heard on the radio that someone in the ACT got herself convicted for GBH by biting someone's earlobe off.

:|

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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Dimis » Thu Oct 31, 2013 8:33 pm

Xplora wrote:Does this begin to engage in the concept of strict liability? In the event of a collision, surely the onus is on the driver of the car until we see otherwise? There cannot possibly be any other interpretation if cowled's video demonstrates he maintained a straight line on the road?

Unless the steering column collapsed or the brake lines failed, the driver is responsible for their vehicle - the rest is just drivel from the racial discrimination handbook. Ultimately, who cares what the driver thought? They thought wrong, and the Crimes Act/Road Rules seems to be pretty clear cut that once you've driven into someone that you've failed to drive safely, even by the lame "no crash, no crime" bar.

I think it really does set a golden standard for police work - if they can't find charges for this incident, then they really don't deserve to exercise discretion any longer.


Agreed.

They are really complicating a simple issue by hiding behind complicated definitions and interpretations of the law.

Blind Freddy sees is as we all do.
Car hits and injures cyclist.
Car's driver therefor should be liable for damages.
End of story... How is it NOT that simple?

Keep at it mate... You are justified in your quests for justice.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby The 2nd Womble » Thu Oct 31, 2013 9:10 pm

Sorry, a full day late, but here is the exerpt from last month's Qld Cycling Issues Inquiry Roundtable Discussion. The QPS Deputy Commisioner is a former Police Prosecutor. On prosecuting drivers who overtake cyclists too closely:

http://www.parliament.qld.gov.au/docume ... ct2013.pdf

Mr GRIMWADE: My question is to the panel but also to the police around the one-metre rule. My biggest concern in making a recommendation for a strict law that it is one metre up to 60 kilometres an hour and 1.5 metre over 60 kilometres per hour is: how do we enforce this? The concern that I have had raised with me by some of the local bicycle groups and the Queensland Police Service is that, if it is one metre and the police have to make a judgement on that—there are probably plenty of laws where the police do have to make a judgement and then it can be challenged in court, I suppose—how do they actually do that? How do we say it was 900 millimetres or it was one metre or it was 1.1 metres, where we are talking close distances? That is my concern in regard to mandating an exact one-metre rule rather than a lateral distance or an education campaign. So if anyone has some comments on that, that would be good.
Chief Supt POINTON: I guess when we talk about judgement and people who follow too closely, which is probably similar to this, it is right that you probably do not see us prosecute too often when people are 1.5 metres behind another vehicle. It is the obvious breach, where they have actually hit the back of the vehicle, that we will prosecute. While you can prescribe 1.5 metres or one metre, the reality is that it is probably going to be the obvious breach that we will prosecute. Just going back to that example before, there is some evidence you can see straightaway because you have documentary evidence that you can look at. There is a photograph that you can look at. There probably still needs to be an investigation into that to try to identify who the owner of the truck is. To me this is not a deficient prosecution; it is probably a deficient investigation before the prosecution. So to me you can prescribe those distances, and I think it is good from the point of view that you educate people about having to leave those distances. One way of doing that is to enshrine it in law and people will know that that is what they have to do. But when it comes to investigating and prosecuting, I think in reality it will be those really clear-cut cases where it is obvious that they have breached that distance where you will probably find the successful prosecutions.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Xplora » Thu Oct 31, 2013 9:41 pm

I think the response is fair, and it makes for a reality check - how the hell are cyclists getting hit and drivers avoiding charges, given the suite of penalties available? Cars just don't have this problem. New laws are needed to Remove discretion from the process.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby il padrone » Thu Oct 31, 2013 9:58 pm

The key point here is that with this rule any contact between an overtaking vehicle and a cyclist becomes an imediate rule-breaker. There is no spurious debate over "I tried to allow room". It just won't cut it. And I would hope that in any such infringement of a clearance distance, an actual contact would be prosecuted with a much heavier penalty than a 'miss'.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby arkle » Thu Oct 31, 2013 10:04 pm

I doubt that any driver would ever be successfully prosecuted for passing within, say, 80cm of a cyclist, but the fact that such a law existed, and that any driver who collided with a cyclist whilst overtaking too closely would be charged with a serious crime, should be sufficient to change many drivers' behaviour. As things stand now there is no reason for drivers to give cyclists the proper room.

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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Xplora » Thu Oct 31, 2013 10:49 pm

In a bunch or video situation, where evidence is available you have a great chance that they get a TIN because strict liability for the offence raises the bar.
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby Scarfy96 » Fri Nov 01, 2013 8:29 am

15 month ban and $900 fine issued in Newcastle yesterday.

http://www.theherald.com.au/story/18796 ... ts/?cs=305

Guy has previous for drug offences, drink driving and assault so I somehow doubt he will sit out his 15 month driving ban ....
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Re: Cyclist hit by car challenges police over fine - Fairfax

Postby human909 » Fri Nov 01, 2013 8:32 am

Scarfy96 wrote:15 month ban and $900 fine issued in Newcastle yesterday.

http://www.theherald.com.au/story/18796 ... ts/?cs=305

Guy has previous for drug offences, drink driving and assault so I somehow doubt he will sit out his 15 month driving ban ....


"Roderic Adam Clark, 42, attempted to run some of the cyclists off the road in his utility, which was towing a trailer, after he encountered the group of between 15 and 20 at The Junction on Christmas Eve last year"

Yet even despite all that "The negligent driving charge was not proven and was dismissed." :roll:


The fact remains that hitting cyclists in your vehicle is rarely punished. It is plainly absurd.
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