Judges comments about using a bicycle as a weapon?

Philistine
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Re: Judges comments about using a bicycle as a weapon?

Postby Philistine » Wed Feb 07, 2018 8:37 am

uart wrote:Wow I hope you're not a defense lawyer. :wink:


You have bundled together two alternative theories of culpable inattention and deliberate malice and chosen to disregard the very real possibilities that (1) the cyclist froze) or (2) that he was simply slow to react (it happens) or (3) that he assumed the girl would keep on walking instead of standing still waiting for him to hit her.

You remarked in an earlier post "that's also how I think it likely happened, Eldavo". What you think "likely happened" does not meet the required burden of proof for a criminal conviction.

I don't know why this accident happened but I lean towards (3) (above). You don't know either, regardless of what opinions you might hold, but, more importantly, neither does the judge, unless she had information that we haven't got (which brings me back to the question in my first post).

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Re: Judges comments about using a bicycle as a weapon?

Postby antigee » Wed Feb 07, 2018 12:36 pm

Thoglette wrote:
uart wrote:Just wondering what others think about this.


I'd like to see Judge Linda Petrusa's track record on car-vs-vunerable-road-user cases.

It is, in my observation, extremely rare for a non-fatal MV accident involving a cyclist to result in a custodial sentence.


suspect this is a case where the Judge's empathy with the pedestrian means that the normal (albeit p. poor) logic on sentencing leads to what is really an irrational statement by the Judge.

I may have only just noticed and am now suffering from some sort of bias that means I'm noticing it more but seems to me that the idea that cyclists and bicycles are in some way inherently dangerous seems to be becoming a norm.

Think this is driven (no pun!) by congested urban areas where many pedestrians are what I'd call "accidental" - they've had to get out of their cars to move around on foot and take the same attitudes to cyclists with them that they have when driving - "they are a nuisance", "they are a danger to other road users", "they come out of nowhere" and of course in urban areas (unlike in rural or suburban areas) cyclists just ride too fast for their own and others safety. The same people that don't look for cyclists at intersections or expect them to slow down even when they have priority are the same people who step out in front of cyclists when on foot because they haven't looked or just expect a cyclist (as required by law of course) to cede - a consequence of all this is to further marginalise cycling and the cheap press and political shouts for more control of cyclists.

Pity the judge didn't comment on how fortunate it was that the cyclist wasn't also badly injured.

round about the time of the Alliston case in the UK spotted this in the paper of the town I grew up in:

https://www.gloucestershirelive.co.uk/n ... ies-436755

no action against the pedestrians who had just left a pub - most of the press coverage focused on the "dangerous" speed the cyclist was travelling at - albeit within the speed limit

and finally trust the pedestrian in this sad case does eventually make a full recovery

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Re: Judges comments about using a bicycle as a weapon?

Postby uart » Wed Feb 07, 2018 12:49 pm

Philistine wrote:You have bundled together two alternative theories of culpable inattention and deliberate malice and chosen to disregard the very real possibilities that (1) the cyclist froze) or (2) that he was simply slow to react (it happens) or (3) that he assumed the girl would keep on walking instead of standing still waiting for him to hit her.

Yeah fair enough. Personally I was thinking the simple inattention was one of the least culpable reasons that could have been offered. It certainly doesn't look like he froze as he appears to be accelerating in a dead straight line right up to about a half a second before impact.

Yes it's possible that he might have seen her very early and decided to pass behind her, but there would have had to be a pretty big lapse in attention after that point otherwise he would have slowed (or at least stopped accelerating).

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Re: Judges comments about using a bicycle as a weapon?

Postby uart » Wed Feb 07, 2018 12:59 pm

antigee wrote:suspect this is a case where the Judge's empathy with the pedestrian means that the normal (albeit p. poor) logic on sentencing leads to what is really an irrational statement by the Judge.

I may have only just noticed and am now suffering from some sort of bias that means I'm noticing it more but seems to me that the idea that cyclists and bicycles are in some way inherently dangerous seems to be becoming a norm.


They give us cycling infrastructure that makes us have to fight for space with cars in an incredibly aggressive car-centric road culture. Out of fear we need to wear high visibility and in some places need to ride as fast as possible just to clear pinch points before being run down. Then they give us mandatory helmet laws and fines parity with cars and trucks. And then they complain that cyclist here are fast and aggressive and not at all like those much nicer looking cyclists who wear sensible clothing and ride slow upright bikes in Denmark or Holland. Still many people can't seem join the dots. :)

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Leaf T
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Re: Judges comments about using a bicycle as a weapon?

Postby Leaf T » Wed Feb 07, 2018 1:08 pm

So had the pedestrian looked before stepping out on the road this wouldn't have happened? It seems that way to me. I hope she recovers fully and the cyclist has a successful appeal.

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Re: Judges comments about using a bicycle as a weapon?

Postby fat and old » Wed Feb 07, 2018 1:17 pm

biker jk wrote:
uart wrote:
Philistine wrote:Is the information linked by the OP the only video evidence available? I cannot see how anyone can draw any meaningful conclusion about the cyclist's attention level on the strength of what can be seen in the video. I can see only two interpretations: either (1) he was paying attention and didn't have time to react, or (2) he wasn't paying attention and he would have been able to avoid the pedestrian if he had been. The evidence does not support a firm conclusion either way.

On the video it appears that she first steps onto the roadway when he is about halfway across Williams St. That places him around twenty metres from her when she first stepped out (yes she is very slow). He seems to take no evasive action of any kind, so it sure seems to point to not paying attention to me.

eldavo wrote:Looks like the rider had head down accelerating into the assumed vacant street.
That's also how I think it likely happened eldavo.


That's how I saw it as well. Rider wasn't looking ahead while accelerating and bang. :roll:


Rider was head down after accelerating hard to get across road against a red so as to not be run down. Didn't see ped who thought that walking same direction of green light was ok and didn't really look for anything larger than a car.....for which she paid the price. Rider should wear what he got, he's an idiot. The concept of bicycles becoming inherently dangerous fits into the idea of presumed liability and the scale of damages wrought by each user higher up on the table to those beneath. Trucks are dangerous to all. Cars are dangerous to bikes and peds. Bikes are dangerous to peds. If you want the safety net of presumed liability you should be prepared to accept the total package, it's only fair. Do unto others etc etc.

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Re: Judges comments about using a bicycle as a weapon?

Postby Scott_C » Wed Feb 07, 2018 2:20 pm

It is interesting looking at this law in the context of railways as it seems that many train 'incidents' could potentially see the train driver charged with Culpable Driving Causing Death or GBH, the same as this cyclist. Trains operate at speeds such that they cannot stop within their sighting distance (hence the use of trackside signals to safely regulate train movements by telling the following driver if there is a train in the section ahead). If someone were to stand on the tracks around a corner is the driver of the train culpable for hitting them because they were going too fast to stop once they saw them?

The person on the tracks would be trespassing but as this case shows the fact that the pedestrian illegally entered the carriageway within 20m of a marked crossing (WA Rule 199) didn't protect the cyclist from prosecution.

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Re: Judges comments about using a bicycle as a weapon?

Postby eeksll » Wed Feb 07, 2018 2:36 pm

Scott_C wrote:The person on the tracks would be trespassing but as this case shows the fact that the pedestrian illegally entered the carriageway within 20m of a marked crossing (WA Rule 199) didn't protect the cyclist from prosecution.


The train can not stop. We must choose to either have trains and have the consequences of pedestrians on railways or we don't have trains.

the cyclist got to where he got to illegally, it seems the pedestrian got to where she got to illegally. How wins? It's my opinion, had the cyclist turned from the road down onto that street (legally) the sentence/punishment for the cyclist would be very different.

I would also think, had the cyclist even looked like he was paying attention i.e tried to swerve etc, the punishment would be different.

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Re: Judges comments about using a bicycle as a weapon?

Postby uart » Wed Feb 07, 2018 3:19 pm

eeksll wrote:the cyclist got to where he got to illegally, it seems the pedestrian got to where she got to illegally. How wins? It's my opinion, had the cyclist turned from the road down onto that street (legally) the sentence/punishment for the cyclist would be very different.

And yet, the pedestrian would have had even less time to see him had he turned legally there. As such I believe the cyclist not waiting for the lights to cross the road is basically irrelevant to the eventual outcome. I do however believe quite strongly that this was used against him to make the offense seem that much worse.

I cross at about three or four pedestrian lights per day without pressing the button, especially when there are no other cyclists/peds waiting and the traffic is not too heavy. Heaven forbid that I ever have an accident after (not during) one of these illegal "buttonless" road crossings, lest I get a life sentence for not pressing the button.

I would also think, had the cyclist even looked like he was paying attention i.e tried to swerve etc, the punishment would be different.
I definitely agree with this.
Last edited by uart on Wed Feb 07, 2018 5:09 pm, edited 1 time in total.

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Re: Judges comments about using a bicycle as a weapon?

Postby eeksll » Wed Feb 07, 2018 4:39 pm

uart wrote:And yet, the pedestrian would have had even less time to see him had he turned legally there. As such I believe the cyclist not waiting for the lights to cross the road is basically irrelevant to the eventual outcome. I do however believe quite strongly that this was used against him to make the offense seem that much worse.


I would agree with all of that. Without a doubt the somewhat heavy sentence would be due to the injuries suffered by the pedestrian. If it was a few bruises etc, the sentence just wouldn't be that harsh.

Also the video footage is very damning, I personally wouldn't believe a cyclist would do that had I not seen it on video.

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Re: Judges comments about using a bicycle as a weapon?

Postby eldavo » Wed Feb 07, 2018 5:24 pm

eeksll wrote:Also the video footage is very damning, I personally wouldn't believe a cyclist would do that had I not seen it on video.

Nope, never happened before. :D


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Re: Judges comments about using a bicycle as a weapon?

Postby Scott_C » Thu Feb 08, 2018 7:12 pm

P!N20 wrote:
Leaf T wrote:Neither were paying attention. Accidents happen.


If the operator of a vehicle (car, bike, scooter, bus, whatever) isn't paying attention, then it's not an accident.


Unless they are having a "medical episode" in which case you can kill a cyclist and not get any penalty for it.

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Re: Judges comments about using a bicycle as a weapon?

Postby Leaf T » Thu Feb 08, 2018 7:33 pm

Accidents happen yes I said that but I was hoping the next sentence would indicate the capacity/irony/sarcasm/appease somebody of whatt I was inferring.

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Re: Judges comments about using a bicycle as a weapon?

Postby Philistine » Thu Feb 08, 2018 8:26 pm

From my perspective a grey area has just become a whole lot greyer.

If it is your right of way on the road, other road users are supposed to defer to you. If it is their right of way, you are supposed to defer to them. However, if someone (illegally) usurps your right of way, you are still legally bound to do everything you can to avoid an accident. In other words, you cannot deliberately run into someone who has infringed upon your right to unfettered passage. But - unless your action is deliberate and can be proved beyond a reasonable doubt (there's that phrase again) you should have no case to answer.

When I read of a judge pontificating about a bike being used as a weapon, I have to conclude that she thought his actions were deliberate, despite there being no evidence to support this conclusion.

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Re: Judges comments about using a bicycle as a weapon?

Postby eeksll » Thu Feb 08, 2018 9:28 pm

eldavo wrote:
eeksll wrote:Also the video footage is very damning, I personally wouldn't believe a cyclist would do that had I not seen it on video.

Nope, never happened before. :D


good thing there was video :mrgreen:

Philistine wrote: ... In other words, you cannot deliberately run into someone who has infringed upon your right to unfettered passage ...


yeah agree with this, but given a lack of clear video or some strong evidence, the assumption is its an accident.

Philistine wrote:When I read of a judge pontificating about a bike being used as a weapon, I have to conclude that she thought his actions were deliberate, despite there being no evidence to support this conclusion.


back to the OP :!: the whole weapon thing doesn't sound right to me either.

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Re: Judges comments about using a bicycle as a weapon?

Postby Philistine » Fri Feb 09, 2018 8:54 am

Philistine wrote:
When I read of a judge pontificating about a bike being used as a weapon, I have to conclude that she thought his actions were deliberate, despite there being no evidence to support this conclusion.


I do not believe a cyclist would deliberately run into a pedestrian - not because it is the wrong thing to do, which (sadly) does not seem to sway many people - but because of the very real risk to the cyclist. It may come as news to the judge, but cyclists have a few clues about what it means to be vulnerable road users.

I also find it hard to believe the judge really believed the cyclist's action was deliberate - notwithstanding her inflammatory remarks! According to the report, she could have handed down a maximum of seven years jail, which would have been more appropriate for a deliberate act. Instead, she handed down twelve months - suspended! This means no jail time but a permanent criminal record.

Justice was conspicuous by its absence, a personable young woman was badly hurt and someone had to pay. This was a warning shot across the handlebars of all of us other damn cyclists who ride around on the road as if we have some right to be there.

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Re: Judges comments about using a bicycle as a weapon?

Postby find_bruce » Fri Feb 09, 2018 9:13 am

Philistine wrote:If it is your right of way on the road, other road users are supposed to defer to you.

Sorry but this is the book of made up rules, you know the same one that says cyclists must get out of the way of a car.

Nowhere in the road rules will you find anything about having right of way & other users deferring to you. What you will find is an awful lot of provisions that require road users to slow down and if necessary stop to avoid a collision. Similarly there is nowhere in the road rules that says any road user is entitled to put their head down and not look where they are going.

Yes I thing there are issues with the decision and it looks to me like the judge has made a number of errors, including confusing a lack of care and attention with a deliberate act, but it has long been the case that someone using the road has to try to avoid running into someone. Yes a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.

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Re: Judges comments about using a bicycle as a weapon?

Postby human909 » Fri Feb 09, 2018 9:40 am

find_bruce wrote:Nowhere in the road rules will you find anything about having right of way & other users deferring to you. What you will find is an awful lot of provisions that require road users to slow down and if necessary stop to avoid a collision. Similarly there is nowhere in the road rules that says any road user is entitled to put their head down and not look where they are going.

Yes I thing there are issues with the decision and it looks to me like the judge has made a number of errors, including confusing a lack of care and attention with a deliberate act, but it has long been the case that someone using the road has to try to avoid running into someone. Yes a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.


Agreed. I wish in the minds of ALL road users. And I wish the police and the courts applied it more regularly and more consistently. Most importantly placing greater responsibility on those who present the greatest danger. (AKA heavier and faster moving)

In this case it seems clear that the cyclist was inattentive and thus careless in his riding. It isn't unreasonable for the courts to take a firm stance on this. What is bizarre is the difference between the stance taken here and the stance taken against inattentive motorists.

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Re: Judges comments about using a bicycle as a weapon?

Postby Philistine » Fri Feb 09, 2018 12:09 pm

find_bruce wrote:Sorry but this is the book of made up rules.


No it isn't. Disputes over right of way occurred a thousand years before cars or cyclists existed, and they were settled by the judicious application of common law.

find_bruce wrote:a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.


But if you don't see him there and you do run over him, you don't find yourself facing charges.

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Re: Judges comments about using a bicycle as a weapon?

Postby bychosis » Fri Feb 09, 2018 1:25 pm

Way back up this thread there was a point which made me consider the 'strict liability' and 'protection of vulnerable road users' aspect. We ask for this to be applied to motorists, and in this case would indicate that the cyclist should be considered in the wrong despite some contributing factors from the ped (she didn't look).

'Watch where you are going' is important. 'Watch where vulnerable road users are' is equally important.

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Re: Judges comments about using a bicycle as a weapon?

Postby Thoglette » Fri Feb 09, 2018 2:01 pm

Philistine wrote:
find_bruce wrote:a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.

But if you don't see him there and you do run over him, you don't find yourself facing charges.

Really? Got some case history or cites for that? (As opposed to just dumb-arsed-cop-can't-be-bothered - see close passes in NSW/QLD threads)

I'd have thought that driving into any stationary object would have indicated a charge of some sort. Particularly when a death results. At least driving carelessly if not recklessly. But there's no explicit "don't drive into obstructions" rule.

Certainly the sleeping drunk is either obstructing traffic or has failed to cross in accordance with the normal regs. But that's not a shooting offence.
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Re: Judges comments about using a bicycle as a weapon?

Postby Scott_C » Fri Feb 09, 2018 2:30 pm

Thoglette wrote:
Philistine wrote:
find_bruce wrote:a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.

But if you don't see him there and you do run over him, you don't find yourself facing charges.

Really? Got some case history or cites for that? (As opposed to just dumb-arsed-cop can't be bothered laying any - see close passes in NSW/QLD threads)


One case where charges were laid: http://www.adelaidenow.com.au/news/sout ... 35e4608b42
Result of the trial: http://www.abc.net.au/news/2015-12-18/d ... il/7040882

I heard the emergency services responding to this one and to the best of my knowledge no charges have been laid: https://thewest.com.au/news/wa/man-seri ... b88580167z

So the best answer seems to be, 'it depends'.

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Re: Judges comments about using a bicycle as a weapon?

Postby find_bruce » Fri Feb 09, 2018 2:43 pm

find_bruce wrote:a bloke shouldn't be lying down drunk in the middle of the road, but that doesn't mean you can run over him.

Philistine wrote:But if you don't see him there and you do run over him, you don't find yourself facing charges.

While not always true, there is a valid point that negligence by drivers has long been excused by cops, prosecutors juries and judges.
Thoglette wrote:Really? Got some case history or cites for that? (As opposed to just dumb-arsed-cop can't be bothered laying any - see close passes in NSW/QLD threads)
The facts are from a case that immediately sprang to mind, Manley v Alexander [2005] HCA 79. And yes it was a civil trial not a criminal one. It has been notoriously difficult to have drivers face criminal charges killing someone let alone being convicted. I am more familiar with cases from NSW where momentary inattention can, depending upon the circumstances of the case, constitute driving in a manner dangerous to the public: R v LKP (1993) 69 A Crim R 159 but the sentencing guideline judgment in R v Whyte [2002] NSWCCA 343 provides that "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment"

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Re: Judges comments about using a bicycle as a weapon?

Postby fat and old » Fri Feb 09, 2018 2:54 pm

bychosis wrote:Way back up this thread there was a point which made me consider the 'strict liability' and 'protection of vulnerable road users' aspect. We ask for this to be applied to motorists, and in this case would indicate that the cyclist should be considered in the wrong despite some contributing factors from the ped (she didn't look).

'Watch where you are going' is important. 'Watch where vulnerable road users are' is equally important.



I’d prepared a post on this very subject earlier, and pointed out that the most vocal of supporters (or apologists, depending on your POV) of this cyclist are also among the most vocal supporters of strict liability as well as generally critical of motor vehicles running people down after blasting a red light. Then I realised that it was a waste of time. :lol:

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Re: Judges comments about using a bicycle as a weapon?

Postby Thoglette » Fri Feb 09, 2018 3:14 pm

Scott_C & find_bruce - Thanks
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