Equipment and On Road Behaviour, Laws and Rules. Cycling Promotion and Advocacy
Today I popped into my local police station (Qld) to follow up on one of my videos and met the officer who had been dealing with them. Firstly let me say the officer was very helpful, understood the problems I'd reported, and has been following up each video with the drivers as well as taking the worst of them to a prosecutor. This post is not about the officer. What I found out from him is a bit discouraging though. We are going to speak again about it next week as he was really in the middle of something when I turned up on their doorstep, and I am looking for some helpful advice.
1. He has spoken to both the traffic branch and the public prosecutor about prosecuting based on my interpretation of rule 146 "A driver on a multi-lane road must drive so the driver’s vehicle is completely in a marked lane, unless ...". My interpretation is that a vehicle can't straddle a lane line unless it is changing lanes. Both traffic branch and the public prosecutor disagree, and their view is the rule does not stop a vehicle from overtaking a cyclist while straddling 2 lanes. Maybe they are right. I don't care if people do it, just so long as they do it a safe distance away from me. When they do it while doing a deliberate close shave, I saw it as a method of throwing the book at them if a unsafe overtaking infringement wouldn't stick (kind of like getting Al Capone for tax avoidance).
2. To prosecute using my video as actual evidence would not be able to stand up in court, as the defence can pull it apart because the footage is not from a calibrated, secure and independent source - the whole chain of evidence thing. Apparently CCTV cameras in the city and valley have to be run by a non-police group to maintain it as independent evidence for use in court, and downloads etc all follow a strict process to ensure the chain of evidence is clean. Additionally, my video could have been modified. Note this is coming from the prosecutors, not from the officer.
3. If I was killed they would be able to use the video footage as part of a brief but it still wouldn't be proper evidence for court.
4. He has been able to take action where the motorist admits that they remember the event and that they did something wrong. In most cases, they claim they don't remember it and he can often tell they are lying.
As I said, we are going to talk again next week to look for ways we can do something productive. I'm looking for ways the videos can still be productive in the sense of reducing the rage out there and increasing safety.
a) I wonder if the call from the police about an issue is enough to stop most of the bad drivers from doing it again, even though there was no adverse outcome (TIN etc) for themselves - although for the many that lie, I'm not sure.
b) I also wonder if a TIN could be issued based on the video, with the hope they would not contest it in court not knowing about the evidence issue if it is real (can we make this thread readable only by forum members? )
c) I'm also curious about evidentiary requirements for videos to be able to be used in court, and if the prosecutors are being slack here or not. I would presume a shop's cctv camera could be used as evidence for a robbery or assault (although there will be other evidence in these cases as well, maybe the cctv is just used to investigate and corroborate injuries, fingerprints etc). I guess part of the problem here is a camera can make something look closer or further away than it really was, and closeness is the main problem in most of my videos - whereas footage of somebody hitting a shopkeeper with a cricket bat is fairly unequivocal.
ps. The officer has been looking at my videos at home, because they can't access youtube at work. Something about too many officers using it to watch things they shouldn't be
Edit: Note the officer has encouraged me to keep reporting the incidents.
a lot to consider, particularly seeing the evidence in a court of law and a coroners court differ somewhat.
The things you state re chain of evidence and calibration etc are correct. The reason why things like this are needed is due to the fact over the years lawyers have used theses things as loopholes to get their clients off when charged.
Further, the main difference between a criminal hearing and a coronial hearing, is that in a coronial hearing, Heresay,opinion,evidence from non scientific,non calibrated devices would be acceptable, in a criminal court/traffic court it is not. I am speaking re matters in NSW however.
It is great to see the way you have worded your post, and i am glad the officer is trying to help. Sometimes however their hands are tied. I hope you can get some action, your the sort of person the Police need, and seem quite level headed in your approach. Many of the militant posters here could learn from your approach.
Had alaugh at the utube reference,things like that are true to a certain extent, depending on your rank and role within the department.
Edit, don't forget also, it is illegal to record sound,(ie a conversation) between you and someone else, if the party is not aware of that fact. Current affairs style programmes get around it using the "in the public interest" clause i believe.
My understanding is that as long as one party involves knows it's being recorded, it's legal. Note that it's also a public place. It is legal to record in a public place.
yeah thats probably right re the knowledge of being recorded, been out of the game for 10 years so i stand corrected.
As always your posts are thought provoking. I don't have time for a detailed response, but I am posting now to remind myself to come back to this when things aren't quite so busy.
The main point though is that you are giving the evidence not the the video. A frequent problem in a criminal trial is when there are two differing accounts, it can be difficult for the Court to determine who is telling the truth, or even who has the better recollection. When you remember that if there is any reasonable doubt, then the defendant is not guilty, you can guess the result.
What a video does is support your account - this is why Oxford's template gets you to record the pertinent facts. Things are not always as they seem and often the video does not show everything.
Finally the mandatory disclaimer - do not take legal advice from some semi-annonymous person on the internet. If you do, I reserve my right to point and laugh.
I wonder what would happen.......
I am in need of some quick cash, after all its Xmas. I run down to the local bank. pull out my gun and hold the place.up. I demand the teller fill my bag with money or I will shoot her.
Meanwhile a customer records the whole thing on their video camera, I run out of the bank and get away. The police turn up and begin investigating, the customer who recorded the whole thing has since changed their mind and does not want to get involved.
months pass by and the police have no leeds, so they post a reward for info. The customer sees this and after discussing it with other family members, it is decided that they go to the police and hand the video into them so they can claim the reward.
I wonder if the video would be used to prosecute me? I bet my left nut they would, they would not worry about calibration etc etc, they would use it because it showed me robbing the bank plain and simple.
Maybe because of the seriousness of the crime. Even a deliberate attempt (even if "attempt" is successful) at running down a cyclist isn't seen to be as a serious crime as armed robbery.
hey ITW, this is nonsense. the standard of proof for these offences is "beyond reasonable doubt". there are no laws about whether you can use video footage or not, or whether it needs to be calibrated (whatever that means). the prosecution merely needs to prove the charge beyond reasonable doubt. video footage of an incident is merely part of the evidence that would be used to support a charge - other evidence would be witness testimony - your own, if not others'.
the point about it needing to be "independent" is laughable. THAT'S THE WHOLE POINT OF FITTING VIDEO CAMERAS TO YOUR BIKE!
any evidence that is admissible in court and that a prosecutor believes would support a charge can (and should) be used as evidence.
the prosecutor is being lazy and lying to you.
Cops are like everyone else. They love to get paid to do as little as possible.
2012 Oppy A4
That's my point, if it's good enough to use for a serious crime then it's good enough to use for a minor crime and even a cycling incident.
It is quite legal to record video in a public space and also audio in a public space without the consent of the other party.
I will continue to use my cameras when I ride.
Well this will be interesting. I just reported an incident to the police today regarding having a crumpled up can thrown at me. My Go Pro recorded the can leaving the car and it rolling onto the ground afterwards.
Reported it over the phone and stated that I had it on video. The constable gave me the impression that he took it seriously, had to go and get advice at one stage (maybe a probie) but said that he would put a job on. Am going to push for the following
1) assault (by can lol)
2) failure to indicate when changing lanes
3) dangerous driving
Hopefully will have a car crew turn up tonite and when they do I will show them the video, still pics and so forth. I have doubts on the assault and it holding up but the other 3 I think will and should hold up.
Driver was a P plater as usual
##EDIT: In the scheme of things it is small, but this driver and his mates need to be taught a lesson I feel
I've had a look at the video and unless you've got more footage I suspect it's going to be a tough sell to the cops as the offence is off-camera.
Sometimes it's best to pick your battles, and wait till you get a really meaty indisputable piece of footage rather than trouble the coppers for every minor one.
slow it right down you can see the can come from the car....my video editing software is freeware so not the best at the moment....I will be happy even if he gets done for littering
Personally, if it were me, I'd pay for the right software. If you're going to go to the Police with that video, it's my opinion you need to at the very least lose both the water mark and the slow-mo sound. Whilst the Police can exhibit extraordinary patience they can also be very quick to flick something like this if it's not handed to them on a silver platter. In other words, don't make it hard for them.
Oh and I didn't appreciate how he moved across the dividing line into your lane. I really need to do my budget again and look at getting a rear facing camera
2012 Oppy A4
This video evidence is useless without video evidence. Seriously - if I were the officer you spoke to, to sit through that length of slow-mo for a fraction of a second of a can flying through the air, I'd suggest there might be bigger issues facing the community. For all intensive purposes, it might as well been a can kicked up from the rear wheels of a car passing you, as much as thrown at you from the open window.
Perhaps you might choose your battles a little better if you want the police to take it seriously?
What is it with cycling? 30+ kmh and lycra???!!!
All I can say is that from my perspective in WA the WA Police have on two occasions issued traffic infringement notices based on my reports and videos. I have of course agreed to appear in court if required.
@gretaboy if you got hit by the can and you have evidence of that then it should be treated assault and not a traffic offence. I was hit by a passenger leaning out of window with one of those dog ball throwers. Unfortunately for him the driver of the car behind witnessed it and provided her details to me for a Police report. The passenger was a teenager and was formally cautioned.
So when do you deem serious is serious. Yes I agree somewhat that in the scheme of things it is small. But then again, when one person is murdered that may be deemed insignificant compared to a mass shooting by some...does it lesson the offence then????. The footage clearly shows the can coming from the car however.
At some point a line must be drawn. I was riding home yesterday and whilst riding was thinking about ringing them up and saying dont bother, but, yet another red p plater comes along and had a go at trying to startle me...they achieved their aim by the way.
Uncle Arthur...I ride a highway that has B doubles and multiple trucks coming along at 80+ k's, at some points due to the road design these trucks pass less than a metre from me. Is it deemed minor if someone throws a can at me which then causes me to crash and go under a trucks wheels....or is that suddenly deemed more serious simply because I went under a truck??
Kona....yes I know I need to purchase editing software...it is on my list for the new year
Greta I guess the point being made by me and Uncle Arthur is that the "cry wolf" syndrome is an unfortunate reality with regard to reporting things to the police.
In other words they are heavily affected by the phenomenon known as Warning Fatigue.
Not to diminish the can throwing incident, but the evidence is pretty weak unfortunately, compounded by the fact that it was a passenger not the driver.
So pick your battles, wait until you have a crystal clear piece of evidence and then go into the cop shop all guns blazing.
It just takes a can hitting a cyclist whose reaction is maybe not as controlled as is ideal and it can pretty serious outcome so if there is appropriate evidence I wouldn't consider it crying wolf at all. I know that I wouldn't want it on my conscience if this person threw a can at another cyclist who got hurt or worse or the can thrower "upgraded" their behaviour to something like door opening on a moving cyclist (yes it has happened here) and I had failed to do something about it.
At least reporting it means that it is in the system and if there is a pattern of reported behaviours in the area (something we don't know) something may be able to be done.
Unfortunately I am not running a front camera as well. If I had, it would have clearly shown that the driver in question went out of his way to have a go at me. Once they threw the can, the car "screeched", and I mean screeched across the lanes so that they could turn right. It was this behaviour that alerted me to that something had happened from behind.
Yes I know the "pick your battles" but the driver and mates carried out a deliberate action to try and cause me harm and to provide them with some entertainment at my expense. Why should they get away with it.
My partner is a cop, she actually told me there is nothing there to deal with, they will just brush it off as it really isnt serious enough. My reply was...there is Highway patrol officer... who hands tickets out for less, so why isnt this the same. She also states that she is worried about me riding to and from work.
If I dont report it, and others dont report it..it simply says that these type of actions are acceptable and to carry on as if nothing is wrong. Maybe just maybe if the driver is spoken to and realises there was a camera involved, he may think twice about doing such things in the future.
In Sept I had a truck turn across my front, I went head first into it, luckily for me nothing was broken and the worst I had was soreness and some muscle damage. The police didnt even turn up. My partner was disgusted but it wasnt deemed serious enough supposedly.
I have had a gutful of red p platers thinking that I am out there for their entertainment.
I seem to have found some quiet time in the madness of the season – yes I probably should be out riding the bike .
The police have a difficult job, in that it is there job to prosecute offences, but only where there are reasonable prospects of a conviction. That question requires consideration of the elements of the offence, what evidence is there to establish those elements and whether that evidence is admissible if it goes to trial. They are not meant to commence proceedings or issue a penalty notice unless they are satisfied. I should point out that it is the job of defence lawyers is to make the job of police harder
The criminal nature of the offences
What is often overlooked that breaches of the road rules are criminal offences that, because of their frequency, parliaments throughout Australia have developed special processes, variously called penalty notices or traffic infringement notices, for these offences. If the driver accepts the offence & pays the fine, it doesn’t go to court. The upside for the driver is a generally low fine.
What frequency ? In NSW in 2011/2012 police issued 253,020 penalty notices for speeding, school zone and mobile phone offences. The observant will notice that statistics are not kept for other breaches of the road rules of concern to cyclists such as failing to give way. The logical inference from this is that they are not frequent enough to provide detailed statistics.
I am trying not to make this a dissertation on evidence in criminal trials (that is a complete subject at Uni & the subject of numerous books) but am happy to go into more detail if anyone wants to. To keep the thread digestible, I will restrain myself and make a number of posts on each topics.
I disagree with this opinion. Video has been used and admitted in criminal trials for decades – banks were pioneers in this regard. Thus in Smith v The Queen (2001) 206 CLR 650 there was no issue before the High Court that the video was admissible, the question was whether the evidence of police officers based on the video was admissible. At the other extreme, video taken by a passenger of a bus driver texting whilst driving on the M2 was used to prosecute that driver for dangerous driving, albeit that the driver ultimately pleaded guilty.
While chain of custody for evidence is important, there is no law that makes it mandatory. Frankly I have no idea what the police think when they say a camera needs to be calibrated, without identifying to what is trying to be measured by the video. There is no suggestion that you can't tell the time because your watch is not an atomic clock.
The use by banks and the decision in Smith v The Queen highlights one of the critical issues with video evidence – it may show what happened, but it doesn’t always clearly show by whom, and although we haven’t yet got to the point where drivers routinely wear balaclavas to avoid identification, the wearing of sunglasses may make it difficult.
ID evidence is often central to criminal trials – the reason fingerprints were studied and then more recently DNA evidence is an attempt to positively ID the offender. How important is this for traffic offences? Driving offences are committed by drivers, not vehicles. The registration number, unless a forgery, identifies the vehicle but not the driver. From what I have seen, many videos in the moron motorist threads do not give a clear shot of the driver & this will make ID problematic.
That’s probably more than enough ramblings from me for now, but I will come back to this thread and deal with the myth about audio surveillance and with other issues as to what the video shows.
With the WA Online Reporting of incidents form there is a section where one is required to provide as much detail as possible identifying the driver. Obviously good video evidence of the driver is desirable, but if you can provide a good description and that matches the likely driver, i.e., the owner of the vehicle I would suggest that box is likely ticked. IIRC in both my videos leading to TIN being issued the driver was reasonably identified and/or I could provide a pretty good description including (~age, male/female, hair colour, upper body clothing being worn) etc.
All good points Andrew, and as long as police keep issueing tickets and the drivers keep accepting them, all is well. My post was not intended to discourage anyone from reporting offences, but to explain why a police officer may not be willing to issue a ticket.
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