It is not "dangerous" to drive into a cyclist

human909
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It is not "dangerous" to drive into a cyclist

Postby human909 » Thu Aug 30, 2018 8:27 pm

Sorry if this has been posted or discussed earlier.

A bit of an inflammatory subject to this thread but it is essentially what our courts have decided. We have seen most of this before. But in other cases doubt was placed about the actions of the cyclist. In this circumstance there was no doubt, there was video evidence. The driver collided with the cyclist and kill him.

How this is not dangerous is beyond belief. Somebody died solely due to the careless actions of another.

How do you think things would have played out if it the car veered onto a footpath and killed a pedestrian. Or veered onto the opposite side of the road and killed another motorist? Yet somehow it is ok to kill cyclists. :evil:

AdelaidePeter
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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Thu Aug 30, 2018 8:57 pm

Beggars belief. No doubt it wasn't deliberate, but how can it not be dangerous?

Defence barrister Laura Reece, are you proud of yourself?

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Re: It is not "dangerous" to drive into a cyclist

Postby biker jk » Thu Aug 30, 2018 9:02 pm

AdelaidePeter wrote:Beggars belief. No doubt it wasn't deliberate, but how can it not be dangerous?

Defence barrister Laura Reece, are you proud of yourself?


What about the jury? Outlandish. :x

Perhaps someone should firm a rifle near Mr Wills' head and if he is struck and killed it would just be an accident.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Thu Aug 30, 2018 9:11 pm

biker jk wrote:
AdelaidePeter wrote:Beggars belief. No doubt it wasn't deliberate, but how can it not be dangerous?

Defence barrister Laura Reece, are you proud of yourself?


What about the jury? Outlandish. :x


I know. Not to mention the driver himself (Caleb Wills), who should have been ashamed and pleaded guilty.

But I do put a lot of blame on lawyers in these sort of situations, because they know the tricks of the trade.

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Re: It is not "dangerous" to drive into a cyclist

Postby Jmuzz » Thu Aug 30, 2018 10:14 pm

Forget the word "dangerous" and what it means in the dictionary.
It has a different meaning in relation to the name of that charge.

A more accurate name for the charge is "causing death by operation of motor vehicle where there are agravating circumstances"

Agravating circumstances are drunk, drugs, prior record, racing, high range speeding, some other stuff.
Lack of attention isn't one of them.

Obviously prosecution thought they had a chance, but the outcome proves they aimed too high and couldn't convince the jury that the conditions were met.

They should have gone for negligence causing death.
But since that's a weak inadequate 6 month maximum they have gambled for the bigger charge.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Thu Aug 30, 2018 10:20 pm

Jmuzz wrote:Forget the word "dangerous" and what it means in the dictionary.
It has a different meaning in relation to the name of that charge.

A more accurate name for the charge is "causing death by operation of motor vehicle where there are agravating circumstances"

Agravating circumstances are drunk, drugs, prior record, racing, high range speeding, some other stuff.
Lack of attention isn't one of them.

Obviously prosecution thought they had a chance, but the outcome proves they aimed too high and couldn't convince the jury that the conditions were met.

They should have gone for negligence causing death.
But since that's a weak inadequate 6 month maximum they have gambled for the bigger charge.


Thanks for pointing that out. So the real problem is that "negligence causing death" has such a light sentence :(

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Re: It is not "dangerous" to drive into a cyclist

Postby trailgumby » Thu Aug 30, 2018 10:37 pm

I read today that the defence lawyer's summation concluded with an appeal to the jury''s self-centredness as drivers, saying it could just as easily have been any one of them, and "there but for the grace of God go I..."

Words cannot express how angry I am...

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Re: It is not "dangerous" to drive into a cyclist

Postby malnar » Thu Aug 30, 2018 10:40 pm

I wonder if he was given a fine for breaching the 1m rule at any point. They may not have been allowed to as he was facing the criminal charge, and may never be allowed to now that he's been cleared.

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Fri Aug 31, 2018 4:45 am

Jmuzz wrote:Forget the word "dangerous" and what it means in the dictionary.
It has a different meaning in relation to the name of that charge.

A more accurate name for the charge is "causing death by operation of motor vehicle where there are agravating circumstances"


From my reading of the legislation (Which I did do before I posted this), that is not the case. Aggravating circumstances increase the penalty but they are not required for the charge.

328A
(4) A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment
(a)to imprisonment for 10 years, if neither paragraph (b) nor (c) applies; or
(b)to imprisonment for 14 years if, at the time of committing the offence, the offender is—
(i)adversely affected by an intoxicating substance; or
(ii)excessively speeding; or
(iii)taking part in an unlawful race or unlawful speed trial; or
(c)to imprisonment for 14 years, if the offender knows, or ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrives.


Was there a death? Yes.
Was the driving dangerous? Well yes, somebody died in what would have otherwise been driving maneuver overtaking another vehicle.

I can't find a legislated definition of 'Dangerous' in this context but from all normal definitions I think the fact that a person is dead is pretty strong evidence that the driving was dangerous. But hey normal definitions of 'dangerous' don't apply to a jury of peers when the dead person is a cyclist. Surely if the jurys keep making these decisions the law should be more explicit.

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Re: It is not "dangerous" to drive into a cyclist

Postby Jmuzz » Fri Aug 31, 2018 6:49 am

If a death was automatically "dangerous" then there would be no lower negligence charges, there would only be one "causing death" charge.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Fri Aug 31, 2018 9:15 am

Jmuzz wrote:If a death was automatically "dangerous" then there would be no lower negligence charges, there would only be one "causing death" charge.


And that's a problem with the law. How can negligently driving a 1 tonne metal machine not be dangerous? The very fact that the law thinks negligent driving is not automatically dangerous shows how little lawmakers care about road safety.

EDIT: And that's the point the defence relied on: https://www.armidaleexpress.com.au/stor ... eath/?cs=7

The Armidale Express wrote:"There is no question that the deceased man Mr Burden died as a result of a collision ... that very sad fact will be admitted," defence barrister Laura Reece told the court.

"The question for you ultimately from the defence perspective is whether the defendant's operation of the motor vehicle in that time in those conditions, whether that driving was dangerous in all of the circumstances."


In other words, even though the driver was negligent and killed a cyclist, it was not necessarily dangerous. But even given that this silly distinction exists (between dangerous and negligent), I still don't see how the jury arrived at the conclusion that it wasn't dangerous in this case.

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Re: It is not "dangerous" to drive into a cyclist

Postby Jmuzz » Fri Aug 31, 2018 12:07 pm

Probably because it really should have been prosecuted in the negligence category.

There is clearly some legal distinction otherwise every fatality would be dangerous driving category.
The jury would have been lectures on what conditions meet that legal definition and they weren't convinced that the conditions were met.

There has been a campaign going on for years to increase the maximum penalties for the negligent driving death category, but yeah the problem is the politicians won't increase it.
They have the attitude that a driving mistake is just a whoopsie.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Fri Aug 31, 2018 3:14 pm

Jmuzz wrote:There is clearly some legal distinction otherwise every fatality would be dangerous driving category.


Well no, because there are the times when the driver is not at fault, or has an unforeseeable medical event or mechanical failure.

But when the driver is at fault and it is their bad driving, then yes, I believe they should pretty well always be convicted for causing death by dangerous driving, because that is exactly what they have done.

p.s. This QLD court page https://www.courts.qld.gov.au/__data/as ... ehicle.pdf seems to "have a bob each way". It says, "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." which to me stinks - it says incompetent driving is ok.

On the other hand the next paragraph is much more positive and says, "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." It astounds me that the prosecution was unable to prove this, since I would have thought killing someone was evidence enough that Caleb Wills' driving was dangerous.

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Re: It is not "dangerous" to drive into a cyclist

Postby Jmuzz » Fri Aug 31, 2018 4:04 pm

QLD added new charge Careless driving causing death or Grievous Bodily Harm in mid June.
Still weak at 1 year, 2 year if agravating circumstances.

I guess that charge didn't exist when this case started.
Plus it is still so weak anyway.

The fact these lower charges exist seems to be pretty good proof that death through carelessness is not intended to be the "Dangerous" charge.

Carelessness does seem to have been the cause. But 1 year max is still a joke.

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Re: It is not "dangerous" to drive into a cyclist

Postby Thoglette » Fri Aug 31, 2018 4:09 pm

AdelaidePeter wrote:.... since I would have thought killing someone was evidence enough that Caleb Wills' driving was dangerous.

You must be young. And I'm not being condescending.

It's only a few decades since we decided that, legally, killing people at work was really not on.

We're (as in me and my colleagues) still trying to convince people not to work under suspended loads.
In most states it's only this last year that working on live electrical circuits was banned.

Go one or two countries in any direction and you'll see that "dangerous" is always a relative idea.

But you've still got your argument arse about: that an action resulted in a death is not prima facie evidence of the action being dangerous (as defined by the law). The argument must run the other way - that his actions clearly raised the risk of a death. And usually, that a "reasonable person" could have foreseen this.

For example, if you kill me with an axe, it is not necessarily true that your actions were dangerous. E.g. If I was standing behind you while you're working at chopping wood, not knowing I was there, and you lost control of the axe, and it killed me, this might be deemed a misadventure. Alternately, if you moved your chopping work nearer the house in which I'm sitting, not knowing that the axe head was loose and the wall thin and faulty, while your actions created a danger a "reasonable person" might not have forseen the fatal risk.

On the other hand, if you're running around a crowded street swinging an axe near people (while drunk) most "reasonable people" would say you've clearly raised the risk of a death occurring.

(Disclaimer: IANAL - if you want a legal opinion, go buy one)
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"People are worthy of respect, ideas are not." Peter Ellerton, UQ

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Re: It is not "dangerous" to drive into a cyclist

Postby redsonic » Fri Aug 31, 2018 6:23 pm

This was the very same road that Richard Pollett was killed on, just one suburb over. Truck driver was acquitted in that case, which sparked the push for 1m passing laws.
Goes to show nothing has changed since then :(

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Re: It is not "dangerous" to drive into a cyclist

Postby BJL » Fri Aug 31, 2018 6:43 pm

Technically the thread title is correct.

I don't think any motorist has ever been killed driving into a cyclist so it can't be that dangerous. Maybe if one of those faulty air bags went off and killed an occupant of the motor vehicle, then it might be dangerous.

Sarcasm aside, maybe they should just reclassify cyclists as 'wildlife' and make it official. Oh, that's still sarcasm. :oops:

:(

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Re: It is not "dangerous" to drive into a cyclist

Postby Scintilla » Fri Aug 31, 2018 11:52 pm

In Victoria 'dangerous driving' consists of:

S. 319(1) amended by No. 7/2008 s. 5(1).

(1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).


It is the features and attributes of the manner of driving (eg. speeding, wantonly breaking road laws, spinning tyres, alcohol or drug-affected, etc) that makes it "dangerous" rather than the resulting act of collision and killing or injuring someone. For example there could be a charge of dangerous driving when no person was injured. This is what our hoon-laws have tried to penalise with an instant and strict-liability penalty.

Just driving and colliding with someone for no reason could still be classed as negligent or careless driving, and attracts lesser penalties.

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Re: It is not "dangerous" to drive into a cyclist

Postby uart » Sun Sep 02, 2018 8:41 am

Just curious.

If I'm driving and don't notice that there is a marked pedestrian crossing ahead. And further I don't notice that there are kids crossing there. And without braking or changing speed, I drive straight over them and kill them. How would you rate my chances of getting off scot-free in the court system, like these drivers often do?

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Re: It is not "dangerous" to drive into a cyclist

Postby warthog1 » Sun Sep 02, 2018 9:31 pm

trailgumby wrote:I read today that the defence lawyer's summation concluded with an appeal to the jury''s self-centredness as drivers, saying it could just as easily have been any one of them, and "there but for the grace of God go I..."

Words cannot express how angry I am...


I think you have summed up a large part of the problem.
Cyclists are an outgroup.
I expect the jury were all drivers and identified strongly with that proposition that it could have been them driving.
Surely cyclists understand the risk they face going on the road and thus wilfully place themselves in harm's way. :x

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Re: It is not "dangerous" to drive into a cyclist

Postby find_bruce » Sun Sep 02, 2018 10:03 pm

Sorry to break it to you - the issue with dangerous driving causing death is not limited to cyclists. I used to work for a company with a large fleet of trucks - one driver was driving too fast around a corner in the wet, crossed on to the wrong side of the road, hitting a car & killing 2 occupants, yet was acquitted of dangerous driving. I could go on but it is all too depressing

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Re: It is not "dangerous" to drive into a cyclist

Postby RobertL » Mon Sep 03, 2018 11:14 am

redsonic wrote:This was the very same road that Richard Pollett was killed on, just one suburb over. Truck driver was acquitted in that case, which sparked the push for 1m passing laws.
Goes to show nothing has changed since then :(


Well, he can be booked for infringing on the 1m. What's that going to be, 3 points and a $200+ fine?
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Re: It is not "dangerous" to drive into a cyclist

Postby warthog1 » Mon Sep 03, 2018 8:09 pm

find_bruce wrote:Sorry to break it to you - the issue with dangerous driving causing death is not limited to cyclists. I used to work for a company with a large fleet of trucks - one driver was driving too fast around a corner in the wet, crossed on to the wrong side of the road, hitting a car & killing 2 occupants, yet was acquitted of dangerous driving. I could go on but it is all too depressing


Fair enough.
I don't know how we change the situation.
Killing someone with a vehicle just seems a case of bad luck according to our courts.

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Mon Sep 03, 2018 9:41 pm

warthog1 wrote:I don't know how we change the situation.
Killing someone with a vehicle just seems a case of bad luck according to our courts.

Significant loss of licence should be virtually assured for anybody guilty of negligence resulting in death. Furthermore it should happen on being charged BEFORE actually being found guilty. (No different to having people held on remand. The driver in most cases has already proven they are a risk to others on the road.)

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Re: It is not "dangerous" to drive into a cyclist

Postby warthog1 » Tue Sep 04, 2018 5:35 pm

human909 wrote:
warthog1 wrote:I don't know how we change the situation.
Killing someone with a vehicle just seems a case of bad luck according to our courts.

Significant loss of licence should be virtually assured for anybody guilty of negligence resulting in death. Furthermore it should happen on being charged BEFORE actually being found guilty. (No different to having people held on remand. The driver in most cases has already proven they are a risk to others on the road.)


Agreed.
How to exert pressure to bring this to pass?
It should result in a custodial sentence when found to be negligent too imo . As if that is going to happen though :x
The finding of guilt or the jail time.

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