Hemlet Safety Study flawed - SMH

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Re: Hemlet Safety Study flawed - SMH

Postby human909 » Sun Jan 09, 2011 11:15 pm

Westgarth wrote:So if you were to change the criminal law to say that a motorist who collides with a cyclist must prove that he or she was in the right, as opposed to the prosecution having to prove beyond all reasonable doubt that he or she was breaking the law, it would seem to be in breach of the charter.


The fact that an accident occurred is pretty strong evidence that the motorist failed to avoid a collision with the cyclist.

Furthermore there is no such thing as being 'in the right'. You have an obligation to avoid collisions.
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Sun Jan 09, 2011 11:17 pm

Yes, and so do cyclists. If a driver can be proven negligent in some way and involved in a collision, then they should be found guilty and punished appropriately. It should not be the law that a driver must somehow prove that they weren't negligent or they will be convicted and punished.
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 8:01 am

This is one of the reasons I suggested, quite seriously, that an criminal offence of "unlawfully colliding with a vulnerable road user" should be created. It would be an offence of strict liability in the technical-legal sense, and it wouldn't reverse the onus of proof, or anything else controversial. It'd be a fairly radical move, what with the fact that the European countries only apply the reversed onus civilly, but hey, reversing the onus of proof for dangerous driving and whatnot is pretty radical too.
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 8:05 am

human909 wrote:
Westgarth wrote:So if you were to change the criminal law to say that a motorist who collides with a cyclist must prove that he or she was in the right, as opposed to the prosecution having to prove beyond all reasonable doubt that he or she was breaking the law, it would seem to be in breach of the charter.


The fact that an accident occurred is pretty strong evidence that the motorist failed to avoid a collision with the cyclist.

Furthermore there is no such thing as being 'in the right'. You have an obligation to avoid collisions.


Nope. You have an obligation to follow the Road Rules. You have an obligation not to drive without due care and attention, not drive drunk (for some vehicle-specific value of "drunk"), not drive dangerously, etc. I am not aware of any law which specifically creates a duty to avoid a collision. My point is just that a collision doesn't breach any laws as such. It all depends on how it happened.
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Re: Hemlet Safety Study flawed - SMH

Postby jules21 » Mon Jan 10, 2011 8:07 am

Westgarth wrote:Here in Victoria we now have the wonderful Charter of Human RIghts. One of the few that actually means anything is that it is now a breach of the charter (and hence illegal) for a law to demand that a defendant prove themselves innocent. It has been used a couple of times now, most notably by an ex-solicitor who had been jailed because the law apparently required her to prove that her boyfriend's drugs which were at her address didn't belong to her (and she was unable to do).

that doesn't sound right. i understood that the charter of human rights is supposed to be used in developing law, not interpreting it. the charter is not law, either. vic police knife searching powers is an example of a law that breached the charter. they just introduced it anyway - they are only obliged to consider the charter, they are not bound by it.
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Re: Hemlet Safety Study flawed - SMH

Postby human909 » Mon Jan 10, 2011 9:22 am

high_tea wrote:Nope. You have an obligation to follow the Road Rules. You have an obligation not to drive without due care and attention, not drive drunk (for some vehicle-specific value of "drunk"), not drive dangerously, etc. I am not aware of any law which specifically creates a duty to avoid a collision. My point is just that a collision doesn't breach any laws as such. It all depends on how it happened.


:shock: :cry:

It is a sad state of affairs when people feel that they are obliged to follow the Road Rules but not obliged to avoid a collision.

Personally I would place avoiding a collision above following rules but that is just me. :roll:
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Re: Hemlet Safety Study flawed - SMH

Postby jules21 » Mon Jan 10, 2011 9:37 am

human909 wrote:It is a sad state of affairs when people feel that they are obliged to follow the Road Rules but not obliged to avoid a collision.

you are obliged to try and avoid a collision. if you don't bother, you can be charged with careless driving.
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 9:56 am

human909 wrote:
high_tea wrote:Nope. You have an obligation to follow the Road Rules. You have an obligation not to drive without due care and attention, not drive drunk (for some vehicle-specific value of "drunk"), not drive dangerously, etc. I am not aware of any law which specifically creates a duty to avoid a collision. My point is just that a collision doesn't breach any laws as such. It all depends on how it happened.


:shock: :cry:

It is a sad state of affairs when people feel that they are obliged to follow the Road Rules but not obliged to avoid a collision.

Personally I would place avoiding a collision above following rules but that is just me. :roll:

Most of the time, those rules amount to the same thing. My point is that a collision is neither necessary nor sufficient to make out dangerous driving or careless driving.

eg driving into a flooded river can be dangerous driving, even though there is no collision. IMO a good thing.
eg an unavoidable collision isn't dangerous driving. IMO a good thing.
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Mon Jan 10, 2011 11:14 am

The danger I see with this is that it could easily be abused. How would you feel if a policeman turns up on your door to tell you that your (crazy ex-girlfriend/crazy ex-girlfriend's new partner/malicious neighbourhood vexatious litigant etc.) has reported that you sideswiped their bike and caused them to fall at three am that morning, and would you care to prove that it didn't happen? The standard isn't like a civil matter where a judge can decide it probably didn't happen, or is unlikely to have happened, or it is about 50/50 in his estimation. You are being asked to prove beyond a reasonable doubt that something didn't happen and if you can't you are facing a criminal record, fines, possible imprisonment and possibly loss of your license.
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Re: Hemlet Safety Study flawed - SMH

Postby simonn » Mon Jan 10, 2011 11:21 am

Westgarth wrote:The danger I see with this is that it could easily be abused. How would you feel if a policeman turns up on your door to tell you that your (crazy ex-girlfriend/crazy ex-girlfriend's new partner/malicious neighbourhood vexatious litigant etc.) has reported that you sideswiped their bike and caused them to fall at three am that morning, and would you care to prove that it didn't happen? The standard isn't like a civil matter where a judge can decide it probably didn't happen, or is unlikely to have happened, or it is about 50/50 in his estimation. You are being asked to prove beyond a reasonable doubt that something didn't happen and if you can't you are facing a criminal record, fines, possible imprisonment and possibly loss of your license.


The police would not do this. It is not a "point the finger = evidence" law.

If there is an accident, like the guy who jumped the lights in North Sydney last week, the driver of the car would be assumed to be at fault unless there is evidence to the contrary, i.e. witnesses that say "he jumped the red light".
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Mon Jan 10, 2011 11:34 am

Really? You think if the police can charge someone with an offence that doesn't require them to prove it but requires the accused to prove their innocent that they wouldn't charge people? Why not?

They would take a statement from the cyclist. Then instead of doing what they usually do now and telling them there isn't enough evidence to lay a charge they would charge the person and hope they will plead guilty out of fear of their sentence being higher if they contest the charge.
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Re: Hemlet Safety Study flawed - SMH

Postby il padrone » Mon Jan 10, 2011 11:37 am

Westgarth wrote:You are being asked to prove beyond a reasonable doubt that something didn't happen and if you can't you are facing a criminal record, fines, possible imprisonment and possibly loss of your license.

You have the application of strict liability all tangled up there, Westgarth. For a hit-run where the identity of a driver is not clear, there would need to be proof - much more than just a crazy boyfriend dobbed you in. Witnesses, damage to vehicle, fragments, location at the time etc.

Once your involvement in the collision is clearly established, then if it's car/bike you will need to prove the cyclist did something blatantly negligent (of course doing a runner is never going to be much help).

Mostly this legal approach will be in situations where the fact of a collision, and the drivers involved are very clear. With a cyclist dead/seriously injured on the ground the car driver has some proving to do.
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Mon Jan 10, 2011 11:50 am

Someone dobbing you in is considered proof already. It is up to the magistrate (or jury in the higher courts) to determine whether that proof proves the charge beyond all reasonable doubt. If the person making the statement seems unreliable they may well decide it doesn't. But if the defendant is required to prove their innocence it becomes largely immaterial.


Here is the photograph of the injured cyclist's elbow with the bruise clearly showing and a doctor's note to say it could have come from falling off a cycle.
Here is a photograph of the stretch of road where the cyclist was almost run down by the offender and fell off his bike.
Here is a photograph of the defendant's car which matches the description given by the victim.
Here is a photograph of the victim's bicycle after the accident.
Here is a statement from the victim stating he recognised the driver who carelessly sped past him laughing and forced him to fall off his bike.
Here is a statement from the criminal stating it never happened and he was at home asleep at the time.

Does this provide proof beyond a reasonable doubt that the cyclist wasn't knocked down by the criminal driver?
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 12:28 pm

Westgarth wrote:
Does this provide proof beyond a reasonable doubt that the cyclist wasn't knocked down by the criminal driver?


The standard would surely be on the balance of probabilities and the onus only reversed with respect to fault. Anything else would be unconstitutional (per _Kable_), not to mention morally objectionable.

I also assume that defences like unwilled act and accident would still be available, so fault on the part of the cyclist wouldn't be the only "out".
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Re: Hemlet Safety Study flawed - SMH

Postby il padrone » Mon Jan 10, 2011 12:31 pm

Did ya read my post, Westgarth??

None of what you list constitutes proof of anything much (beyond the fact that someone fell off their bike). One word against another and unsubstantiated collision.
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Mon Jan 10, 2011 7:13 pm

Whether or not you agree that it constitutes proof, provided the court decides that there is a case to answer it would then be the task of the driver to prove themself innocent. It's not a case of probabilities in a criminal matter, that is the civil burden of proof. Normally a prosecution is supposed to prove 'beyond a reasonable doubt' that the accused committed the offence. If you are going to reverse the onus (which seems to be what some people have suggested should happen re criminal charges) then it would be up to the motorist to prove themselves innocent. Even if it were a balance of probabilities burden of proof, it would still breach the Charter of Human Rights as it is still requiring an accused person to prove themselves innocent of a crime rather than requiring the state to prove them guilty of it.

If you've spent any time observing the courts (as I have and do) you will see cases every day which boil down to one person's word against another or nothing more than an unfounded suspicion by a police member who decides to lay a charge and hope the person pleads guilty.
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 8:42 pm

Westgarth wrote:Whether or not you agree that it constitutes proof, provided the court decides that there is a case to answer it would then be the task of the driver to prove themself innocent. It's not a case of probabilities in a criminal
matter, that is the civil burden of proof.


No, balance of probabilities is the usual standard when the onus is on the defendant (as is the case with insanity, for example) in criminal cases. According to my textbook, Carr-Briant is the authority for this. The suggestion that a defendant should have to show their innocence beyond reasonable doubt is appalling.


Normally a prosecution is supposed to prove 'beyond a reasonable doubt' that the accused committed the offence. If you are going to reverse the onus (which seems to be what some people have suggested should happen re criminal charges) then it would be up to the motorist to prove themselves innocent. Even if it were a balance of probabilities burden of proof, it would still breach the Charter of Human Rights as it is still requiring an accused person to prove themselves innocent of a crime rather than requiring the state to prove them guilty of it.


That's why I think an offence of strict liability - in the technical sense - is a better way of acheiving the same end. Well, that and the Kable thing.
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Re: Hemlet Safety Study flawed - SMH

Postby Westgarth » Mon Jan 10, 2011 9:45 pm

The suggestion that a defendant should have to show their innocence beyond reasonable doubt is appalling.


I agree, this is the point I have been trying to make all along, as would anyone who thought it through.
"unlawfully colliding with a vulnerable road user"


I assume here that vulnerable road user would be classed as a pedestrian or bicyle (electric?) and anything in between. I see your point, I think, you are suggesting that it be made illegal to be in a collision with a vulnerable road user in the same way that it is illegal to trespass on someone else's property regardless of whether they are injured or suffer any particular loss or distress.

Given the lack of serious penalties for motorists who do negligently run into and injure pedestrians/cyclists and get themselves convicted, would creating a lesser category really help? It might result in people who are facing more serious charges being able to have them reduced to some sort of administrative-level fine and demerit point?
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Re: Hemlet Safety Study flawed - SMH

Postby high_tea » Mon Jan 10, 2011 10:16 pm

Westgarth wrote:
The suggestion that a defendant should have to show their innocence beyond reasonable doubt is appalling.


I agree, this is the point I have been trying to make all along, as would anyone who thought it through.
"unlawfully colliding with a vulnerable road user"


I assume here that vulnerable road user would be classed as a pedestrian or bicyle (electric?) and anything in between.

Yeah.
I see your point, I think, you are suggesting that it be made illegal to be in a collision with a vulnerable road user in the same way that it is illegal to trespass on someone else's property regardless of whether they are injured or suffer any particular loss or distress.


I don't know enough about criminal trespass to comment on the accuracy of that analogy.

The salient feature of that proposed law is no fault element, in contrast with e.g. dangerous driving. The Crown would only have to prove - beyond reasonable doubt of course - that the accused collided with a vulnerable road user. Unlawful wounding, under the Queensland Criminal Code, works in a similar way.

Given the lack of serious penalties for motorists who do negligently run into and injure pedestrians/cyclists and get themselves convicted, would creating a lesser category really help? It might result in people who are facing more serious charges being able to have them reduced to some sort of administrative-level fine and demerit point?


I haven't given a huge amount of thought to penalties, but I was thinking more than points and a fine - loss of license and possible gaol time or something. There was a case recently mentioned on here when a motorist failed to give way and seriously injured somebody. For whatever reason, they were charged with failing to give way, nothing more serious than that. The magistrate bemoaned the fact that the stiffest penalty available was a 2 grand fine or whatever. So. Here's an offence with a stiffer penalty that isn't dramatically harder to prove than a breach of the Road Rules.

With respect to more serious charges, as I understand it, they can be charged with offences in the alternative, so e.g. dangerous driving, with unlawful collision as a fallback.

It wouldn't be a complete solution, but it might help. I think it's worth considering anyway.
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Re: Hemlet Safety Study flawed - SMH

Postby London Boy » Mon Jan 10, 2011 10:22 pm

high_tea wrote:
Westgarth wrote:Whether or not you agree that it constitutes proof, provided the court decides that there is a case to answer it would then be the task of the driver to prove themself innocent. It's not a case of probabilities in a criminal
matter, that is the civil burden of proof.


No, balance of probabilities is the usual standard when the onus is on the defendant (as is the case with insanity, for example) in criminal cases. According to my textbook, Carr-Briant is the authority for this. The suggestion that a defendant should have to show their innocence beyond reasonable doubt is appalling.


A better way to put this is to say that once the Crown has shown beyond reasonable doubt that a person has committed an offence, it is for the accused to show on the balance of probabilities that there was some lawful justification or excuse. An example is for the prosecution to show beyond reasonable doubt that Joe Bloggs broke into a house, and then for Joe to show on balance of probabilities that he mistakenly thought it was his own house. (It has been known...)

Different thing in civil cases of course. Balance of probabilities all the way through, with some subtleties here and there (Briginshaw).

That's why I think an offence of strict liability - in the technical sense - is a better way of acheiving the same end. Well, that and the Kable thing.


Not sure about Kable. That was a constitutional / jurisdictional thing wasn't it?
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Re: Hemlet Safety Study flawed - SMH

Postby il padrone » Mon Jan 10, 2011 10:31 pm

high_tea wrote: There was a case recently mentioned on here when a motorist failed to give way and seriously injured somebody. For whatever reason, they were charged with failing to give way, nothing more serious than that. The magistrate bemoaned the fact that the stiffest penalty available was a 2 grand fine or whatever.

You may be thinking of James Gould on Beach Rd??

It was a cyclist, Willian Raisin-Shaw, who was riding in a bunch ride.... went through a red pedestrian crossing.... collided with James Gould, elderly man and killed him. The judge bemoaned the fact that culpable driving only applied to drivers and the only penalty available was failing to stop, $400.

I really don't know why he was not prosecuted for manslaughter :?:
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Re: Hemlet Safety Study flawed - SMH

Postby jules21 » Tue Jan 11, 2011 8:11 am

il padrone wrote:It was a cyclist, Willian Raisin-Shaw, who was riding in a bunch ride.... went through a red pedestrian crossing.... collided with James Gould, elderly man and killed him. The judge bemoaned the fact that culpable driving only applied to drivers and the only penalty available was failing to stop, $400.

the other crucial point is that culpable driving requires proof of intent. this is notoriously difficult to prove as the defendant can easily just play dumb.
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Re: Hemlet Safety Study flawed - SMH

Postby il padrone » Tue Jan 11, 2011 9:00 am

What hey??

I thought culpable driving is equivalent to manslaughter on the road ie. death by negligent driving. No 'intent' involved, as this would make it murder surely :?:
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Re: Hemlet Safety Study flawed - SMH

Postby jules21 » Tue Jan 11, 2011 9:11 am

as i understand it, it is similar to manslaughter. it requires intent to place others at risk. an example is drink driving which results in colliding with another road user and their death. there was no intent to kill them, but there was intent to place their life at risk by willingly getting behind the wheel while drunk. a court will not likely accept that a driver thought it was OK to drive drunk.

in the beach road case, culpable driving/riding would only have been possible if intent was shown by the prosecution. that may have been possible i suppose, if it was shown he deliberately rode through the red light - i'm unsure.

unless there is objective evidence, i.e. drug or alcohol impairment of the driver, culpable driving is difficult to prove, as it is easy to plead stupidity and cast doubt on intent.
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Re: Hemlet Safety Study flawed - SMH

Postby il padrone » Tue Jan 11, 2011 9:35 am

Your concept of 'intent' seems different to mine - but then I have zip legal background.

In the case of Raisin-Shaw, I believe that the bunch leaders called out 'stopping' and Raisin-Shaw called 'rolling' and went through, so reckless behaviour was present. He knew the light was red and proceeded, despite the rest of the bunch stopping.
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