First of all, I should apologise for this blog post, and warn you in advance that it's about helmets. I do adhere to DM's rule about no helmet stuff, but, well, on this occasion I'm going to be a very naught boy. Sorry.

It all started back in January when I received a ticket for riding without a helmet. Then I got another one. After some umming and ahhinh, I decided to contest them - I just wasn't prepared to be branded a criminal for doing something that harms no-one, and delivers benefits to society.

So yesterday I had my day in court. Going to court involves a lot of hanging around, but my case was finally called and I went to the appointed courtroom at the Dowling Centre. It was a small courtroom, and the only people there were myself, the prosecutor and the court clerk. Whilst waiting for the magistrate the prosecutor and I got chatting, and it turned out he was a cyclist too, and he commuted in from Gordon each day. All very jolly.

Then the magistrate arrived, and we were off. The prosecution outlined the evidence (essentially just the citations I have been given), and the magistrate turned to me.

'I assume you are going to plead guilty?' she said.

I shook my head. 'I am pleading not guilty, your honour'.

Her eyebrows shot up in surprise, and she was momentarily taken aback. 'Well, you'd better get into the witness box then.'

As she was saying this, she began to put in what appeared to be a pair of iPod earphones. Now it was my turn to be taken aback. Was she going to listed to some funky beats whilst I gave my evidence? She then directed me to speak into the microphone, so I assume that in fact she was somewhat hard of hearing, and was using the earphones to hear me clearly.

I had to pledge to tell the truth, the whole truth, and nothing but the truth, and then I was invited to begin. As you might expect, I was a little nervous. I had written out what I needed to say, but didn't intend to necessarily read it verbatim. However, this is what I started to do to cover my nerves. I had barely got out a sentence when the prosecutor stood up and called 'objection!'. Ooooh, how exciting! It was just like on TV.

He objected to me 'reading a prepared statement'. His objection was upheld, and the magistrate ordered that I turn my notes over and proceed without them.

I was temporarily floored. I was very familiar with the material, but for a few moments flustered a little getting back into my stride. On reflection, I think this was a little unfair. It was my first time in court, defending myself, using a defence based on a relatively technical legal argument. And I was not permitted to use notes. Telling me not to read, well, perhaps. But not allowing me to have my notes in front of me?

I continued, and after a few fluffs the argument began to flow. I explained I would be using the defence of 'necessity', and explained the three elements that it was necessary to show for this defence to be upheld.

The first item was my belief that wearing a helmet puts the ride at increased risk of serious injury. I pointed out that there was significant scientific research on the subject, published in peer-reviewed journals that supported this belief. Half way into making this point, I was interrupted by the magistrate, who pointedly told me that I couldn't use this argument in my defence unless the author of the research was there to support it. We had a bit of too-ing and fro-ing about this and the matter of whether talking about Sue's court case was relevant, but when I was able to get a word in edgeways I explained that I was not attempting to conduct an examination of the science, but that the defence of necessity merely requires me to prove that I hold the belief on reasonable grounds - and that the very fact that there was peer-reviewed science to support my position was indeed reasonable grounds.

I managed to land this point quite well, and it did cause the magistrate to pause, and then accept the point. However she then instructed me to move on to the next point, so I was unable to explain the relevance of the judge's comments in Sue's case - essentially that it seemed reasonable to me to take the same position as a District Court Judge who had previously examined the evidence.

So we then moved on to the second item; that of necessity. The magistrate got very hung up on telling me that 'this cannot be about you riding a bicycle', which was kind of odd given that the entire case was about me riding a bicycle. I made a few salient observations about the necessity to ride to safeguard my health, and then was again hurried onto the final point, meaning was unable to make the argument about the need to reduce my carbon footprint.

The final point was to demonstrate that no harm was caused by me breaking the law. I commented that no harm had been caused by me riding, and indeed a number of benefits had been accrued, such as benefits to my health, and to reducing congestion.

And that was that, I was stood down from the witness box, as the prosecution had no questions.

The judge then delivered a little speech. She praised my passion and conviction, which was nice. However, she then launched into a rant about how I had failed to demonstrate that I had reasonable grounds to believe that wearing a helmet increases the risk of injury. She called my argument 'ridiculous', and whilst she acknowledged that my belief was 'honestly held', she commented that she knew someone who honestly believes that we are descended from aliens that landed in a spaceship, and whilst they held that belief honestly it was, like my argument, not reasonable. 'It is simply irrational', she continued, 'to believe that wearing protective equipment does not reduce the risk of injury.'

I must admit, I struggled to keep a straight face through this. The irony of the matter was stark; I was the one with the rationally held beliefs, based on a long and careful study of the science, and yet apparently the opinions of a magistrate with no expertise in the matter at all were more valid. I wonder if she knows that she is essentially calling her learned colleague Judge Ellis 'irrational' and 'ridiculous', as after considering the evidence he too came to the conclusion that wearing a helmet was more likely to do harm than good.

She also rambled on about how injuries do cause a cost on society, and she did therefore not accept my argument that no harm was caused. This reflects her incorrect grasp of the law; the defence of necessity only requires that no harm was caused on the specific occasion under consideration (which in this case can be shown, as on that day I caused no harm by riding my bike), however she took the argument to the general case that riding without a helmet may, at some point in the future, cause harm.

The one part of my argument she did not comment on was the point of necessity - the argument that I had to be riding my bike on that occasion. This was by far and away the weakest part of the case, and one on which I think it would have been quite easy to dismiss the argument.

After heading her speak, I was braced for the verdict. A large fine? Or perhaps slugged with court costs for wasting her time?

However, at the very end of her speech, her tone changed slightly. She warned me that 'this is not the right way to go about this matter'; she made the point in a rather oblique way and I found it hard to really follow the point she was making. However, it occurred to me that she was aware this was as much a political argument as a legal one, and was acknowledging that - if also trying to warn me off using the courts as a way of grandstanding the issue.

She summed up by saying she accepted the offence and that the law had been broken. And then she noted that on this occasion she would record a non-conviction, and that I was free to go.

Slightly gobsmacked I left the court - no criminal record, no fine. Did I win? Well yes, I suppose I did, but the whole thing just left a sour taste in my mouth. I had spent a long time preparing my arguments, and was frustrated that I had not been given room to make them. And I was annoyed by her holier-than-thou attitude on a matter about which she knew nothing.

I left the court and jumped back on my bike to ride home. The sun was shining, and I rode along upright and resplendent in my best suit. On the way home I passed a film crew filming cyclists passing on the Union St cycleway. I was curious as to who they were, so turned around and cycled back towards them; as I reached them I heard someone shout 'cut!'.

They explained that they were making a promotional item on the CoS cycleways to be aired in local cinemas.

'You look fantastic!' the director enthused. 'I saw you coming and said 'We've got to get this guy - he looks great!'

That cheered me up enormously. I rode the rest of the way singing to myself, enjoying the fine weather and the gentle swish of my tyres on the road. Who knows, perhaps you'll see me appear on the big screen next time you go to the movies. Or perhaps not - after all, they may choose not to use footage of people breaking the law. You see, I wasn't wearing a helmet...

Views: 309

Tags: do-not-read, helmet, warning

Comment by Paul Martin on May 28, 2011 at 6:46pm

Dan,

 

Thank you for this excellent summary of your experience and hats off to you for this sterling effort. It would have been nerve-wracking and I admire your efforts.

 

I agree with your comments about the Judge's 'opinion' being more important than the facts or any evidence to the contrary. Her point about it being a political argument is correct - certainly up here in Queensland where only the politicians can change the law - the legal system can't and no precedent can be set to fight it... frustrating.

 

This is where I ended - at a dead end - despite some high powered lawyers on my side. Their hands were tied and they advised me that going to court would have resulted in the same treatment as you, but as I had them representing me, they could have been up for disciplinary action for 'wasting court time' - something you are less likely to be accused of as a non-lawyer I suppose...?

 

I love the footnote to your story. Men in suits on bikes (without helmets, particularly) look fabulous - so says my wife. ;) ...but I'm sure they won't use you in the footage as it's just not PC. Pity.

Comment by Sue Abbott on May 28, 2011 at 7:27pm

I arrived just too late but spoke to your police prosecutor (I think!!)

I wonder why you had to go in the witness box - I didn't - seems a bit tough!

All that aside, well done for doing what you did - takes a lot of guts!!!! - so sorry I missed you!!!

 

Comment by Colin on May 28, 2011 at 8:13pm
Dan, magistrates are the very lowest rung on the legal ladder, and they are not even required to have been lawyers. Local courts are the express lanes of the justice system, and any even slightly technical legal argument is bound to go nowhere. You need to get in front of a judge, as Sue did, but this magistrate was a little canny - she blocked that avenue by recording no conviction.
Comment by Bill Parker on May 28, 2011 at 8:22pm
Well done Dan, looks like a couple of victories on the one day. Just before coming on here I saw a news item that a cyclist at Campbelltown who was arrested for not wearing a helmet (motorised bicycle though), and being abusive had died while cuffed. Not a trivial outcome.
Comment by Cameron MUrray on May 28, 2011 at 9:30pm
Bravo
Comment by Richard (Poncho) on May 28, 2011 at 11:49pm

That is indeed a surprising result!

Perhaps the legal fraternity are no longer willing to cross the ruling of Sue's case. In that they will not set a precedent of finding you not guilty but will let you go without penalty.

 

Surely if this happens a few more times there'd be grounds to argue that this law is an unenforceable nuisance wasting the court's time.

Comment by Michael S. (Boxhead) on May 29, 2011 at 12:34am

Good on you, Dan. Sounds intense. Glad you weren't fined.

 

Comment by Kathy Francis on May 29, 2011 at 10:33am

Good work , Dan.

The best thing about it was the non fine at the end. But your account leaves many questions unanswered. The failure to fine you did not seem to follow from what went before.

Why are we not allowed to read from prepared notes in Court ?

Why did she not comment on Judge Ellis' findings ?

A rather uneven and unpleasant experience, but worth getting rid of the fines.

Comment by sydneyCommuter on May 29, 2011 at 7:34pm

Well done Dan.

It must have been intimidating, being with a magistrate and a prosecutor, both familiar with the process, having no previous experience and being prevented from using your notes.  You handled it well though.

Despite the judge being dismissive, your preparation was useful, impressing the judge with your conviction and thoroughness.

This seems to indicate that the judiciary is not so keen to tackle this controversial topic.  That's good news for those who are willing to challenge it through the courts.

Comment by Terry on May 29, 2011 at 9:37pm

Good work Dan,

I was getting a little concerned towards the end of the post thinking that it had gone against you, but you seem to have won the day. Hopefully one day soon the law will be repealed and cycling life can go on as it does in most other countries in the worl

Comment

You need to be a member of Sydney Cyclist to add comments!

Join Sydney Cyclist

Community Ads

Sponsors






© 2014   Created by DamianM.

Badges  |  Report an Issue  |  Terms of Service