My day in court

November 2, 2011 at 22:29 | Posted in bicycles | 4 Comments
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I finally got to have my day in court for the four helmet tickets I received earlier in the year. It’s taken a long time to get there – the wheels of justice turn slowly – but on Friday the day arrived. It was a bright, sunny day, so I have a lovely time riding over to the court on the Radish, dressed in my best suit.

When I arrived, the police officers who issued the tickets were there, but my expert witnesses were not. One of them would not be arriving until after lunch, and the other was only going to be able to make it if my case was heard between about 1.30pm and 2.30pm. The list of cases to be heard that day was very long, however, and I was number twenty-two, so I was hopeful that it might work out.

Initially cases get mentioned in the morning, and at that preliminary mention I asked the presiding magistrate if it were possible to schedule the case for the afternoon, in order that my witnesses could attend. She told me that it was not possible to do this, and the case would be heard when it was called. So I kept my fingers crossed that the long list of other cases would take up the morning.

And then it was really just a matter of waiting around. At just after eleven I got a text from one of my witnesses that they were on their way, and would be there in forty-five minutes or so. And at that moment, my case was called.

I made my way to the appointed courtroom with trepidation. I was going to have to ask for the hearing to be delayed in order for my witnesses to be there. When I got to the court, it was some time before the magistrate arrived, and he seemed somewhat flustered because he was actually in the middle of another case. However, he just wanted to hear the outline of the matter.

The prosecutor outlined the basics of the case, and I confirmed that the facts were not in dispute, but that I would be using the common law defence of ‘necessity’. The magistrate seemed bemused, and wanted more information, so I outlined the very basics of the way the defence would unfold – essentially that the defence allows for infractions to be excused if certain conditions can be met.

The magistrate stared at me. ‘Well, that’s what you say the law is, but I don’t know that.’

I was a bit taken aback by this. Wasn’t it his job to know what the law is?

He went on, somewhat aggressively. ‘Each of these offences carries a maximum penalty of $2000, and if you pursue this I will be unable to consider any mitigating circumstances. You need to think about changing your plea. You could end up with a very large fine.’ And with that he adjourned for morning tea.

I guess any hopes I had for a reasonable trial kind of evaporated at that point. Apparently the magistrate presiding over the case was not familiar with the legal principle I was using, and had made it pretty clear he thought I was wasting his time, with the clear threat of a large fine hanging there. So much for innocent until proven guilty!

By the time morning tea was over the first of my witnesses had arrived. This made me feel much more confident; at least I had someone on my side! The indefatigable Sue Abbott also came along to support me. However, getting my other witness to be there was starting to look like a long shot. Indeed, I had only secured his services at the last minute when my original witness was unable to make it, and had never even spoken to him on the phone, let alone met him!

The magistrate returned, and continued to deal with the case he has been involved in. I was looking at the clock, and trying to calculate whether there might be a chance to get him there. I took Sue out of the court for a second.

‘Sue; if it looks as if this is going to go on a bit, and there’s a chance we might still be going when he’s available, could you call him and see if he can jump in a cab and get here? It’s going to be tricky for me, as it will all kick off in a few minutes.’

Sue agreed, and then the case started. A load of time was wasted at the start with the prosecution and the magistrate discussing whether there was a provision in law to exempt helmet wearing, and if a medical certificate would be acceptable. Perhaps they were looking for a way to get me off, but it had nothing to do with my defence. There are no such exemptions allowed; I know because I have checked. Interestingly though, the prosecution alleged that the police would not issue a ticket to riders who were able to produce a doctors note saying they were unable to wear a helmet. This certainly isn’t what the law says, so if the police would actually do this I don’t know; at best it would be an unofficial policy.

Then I outlined to the magistrate the basis of my case, and he interrupted several times. He had clearly been off to read up about the defence of necessity as he had his book open in front of him.

‘You are going to have to show compulsion to ride a bicycle,’ he kept enunciating, leaning forward whilst flecks of spittle formed on his lips. ‘I cannot see how you are going to do this. If there was a psychotic person wielding an axe at you and you jumped on the bicycle to get away from him – well, this is the kind of thing the defence of necessity is for.’ (Actually the magistrate brought up a psychotic axe-wielding maniac several times during the case; it seems he is a bit obsessed by them.)

I got very close to retorting that if he shut up for a moment and let me speak then he might find out how it would all fit together, but I refrained. I did say that I would indeed be able to show that, and had expert witnesses there to support the point. And then I suggested that I give my evidence.

So I did, although it was hard to get all my points across because the magistrate kept interrupting me. Eventually I got most of it out, and then I faced questions from the prosecution, including a whole load of bizarre questions about whether I could fit my bike with a device that make a light come on when I went over a certain speed(!). Eventually even the magistrate asked him if these questions were relevant, to which he limply said, ‘no, not really’.

Then it was time to call my first witness. ‘I call Doctor Veronica Harris!”, I said grandly. I have no idea if that is what you are supposed to say, but that’s what they do on TV so I went with it. Dr Harris took the stand, and I got to ask her my questions. She was superb; calm, authoritative and eloquent. It was at that moment that the atmosphere in the court began to change. I sensed the magistrate sit up a bit more, and take some notice. This wasn’t just some guy trying to talk his way out of a helmet fine; as she spoke it I think dawned on the magistrate that my outline of how the defence of necessity applied to the case wasn’t just puffery. Here was an acknowledged expert in her field clearly articulating one of the key points of my defence.

Veronica dealt with some rather trivial questions from the prosecutor (who by now seemed to be well out of his depth), and left the stand. I glanced at the clock. Not even one o’clock. So no chance my other witness was going to be there. I was going to have to try and prove another key point with the help of just a few newspaper cuttings; something that I suddenly realised was going to be impossible.

I caught Sue’s eye, and she grinned, giving me a thumbs up. Could it be? Was he here?

Figuring I had nothing to lose, I put on my best Rumpole voice. ‘I call Professor Chris Rissel.’

The door of the courtroom opened, and in walked the Professor. I only knew what he looked like from his little picture on the University of Sydney web site, but as he walked in it was like a huge choir suddenly started singing the hallelujah chorus. I was gripped by a sudden excitement. He was here! I might actually be able to pull this off!

I managed to shake Chris’s hand as he walked past and onto the witness stand, and then I asked him my questions. It probably ranks as the strangest introduction I have ever made; the first words I spoke to the man was to ask him questions in a court of law.

He too was superb. He outlined his impeccable credentials, including the significant research he has undertaken in the field of health, bicycle use and helmets, and all of a sudden I again felt the magistrate paying even closer attention. The other key point of my defence was clearly supported. The prosecutor, by now looking rather flustered, asked a few questions that Chris swatted away, and then it was time for the summing up.

The prosecutor made a rather weak statement about how what they had heard might be appropriate for a government review of the helmet law, but was not suitable for this court, and then I re-articulated my case, emphasising how the basis for the defence of necessity had been shown. I also emphasised the urgency and immediacy of the matter, as this was something the magistrate seemed quite hung up on, and finished with an impassioned plea. ‘The law puts me in an impossible position; to which the only solution that will not cause harm is for me to not wear a helmet when I ride. These are important matters, and it seems to me exactly the kind of situation the defence of necessity is designed to address.’

The magistrate then said he needed to consider the matter, and called a lunch recess for an hour.

I was pretty keyed up, and whilst I forced down a sandwich the rational part of me knew that I was not going to win. No magistrate is going to risk setting a precedent like this one. However, a part of me was just wondering. Maybe? Maybe? Clearly we had given the magistrate a lot to think about; compared to the last time when the magistrate pretty much told me I was speaking nonsense from the instant I finished.

I was not the only one thinking there was a chance. We went back to the court and whilst we were waiting for the magistrate I asked the prosecutor for his opinion. He was looking worried. “It could set a very dangerous precedent,’ he said.

Then the magistrate came back in and delivered his verdict. He spoke at length, and clearly had spent some time preparing what he was going to say. He reviewed all the evidence presented, and basically accepted all of it as factually correct; he also made some comments about the bicycle helmet law not being ‘helpful’. He had also finally grasped how it was that my case fitted together, as he clearly laid out how my defence worked, with the various interlocking aspects. However, he did not accept that the conditions needed to fulfil the defence of necessity had been met; specifically he felt there was not enough ‘urgency and compulsion’. There was no axe-wielding maniac. And so I was found guilty.

I walked away with a token $50 fine, and a kind of warning that the next time I came to court the fine would be larger. However, I think the case was a success. I was clearly able to demonstrate that this was not just a trivial matter; I forced the magistrate to take me seriously and he had to spend an hour thinking about it, and perhaps struggling a bit to find a hole in my arguments he could use to dismiss the case. It also highlighted the absurdity of the bicycle helmet law to the point where he was prepared to criticise it on the record.

Now I just need to consider whether to appeal…

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4 Comments »

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  1. Fantastic! I really admire your courage and fight for justice.
    And what an exciting story.
    I must say that it’s bizarre that the law is involved at all in what really is a personal decision. Shouldn’t the police and prosecutors be going after the bad guys?

  2. Well done! It is a little alarming to hear how the court really “works”. I hope that if you are ever lumbered with a large fine that the ‘hatless’ bicycle community will pass some suitable container to take up a collection to cover your expenses…can’t have you going to bat for all of us and paying expenses out of your own pocket!

    Sincerely

    Paul Jackson

  3. [...] another court case in November 2011.  The magistrate recognised the validity of his defence, and let him off with a token fine.  Sue Abbott was there supporting him, describing the trial here. There is a pattern there.  It [...]

  4. Well done! I really admire your courage, conviction and preparation. Its also great that your experts came and were willing to give up their time in your defence, congratulations to them too.


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