Police conviction thrown out of court

[marc2131]

Regarding the Slowies accident at Centennial Park on Sat 18 Feb 2012.
I was knocked off my bike while doing paceline training with my DHBC mates, after a black Audi SUV swerved into our side of the road. Luckily no one else fell but I was banged up quite bad at the time.
Funny thing is that the police decided to issue an infringement on me for 'riding bicycle negligent' (sic)!
To cut to the chase, we had our day in court today and the magistrate threw it out.
I would like to thank the many DHBC people who helped during the last few months. Firstly the witnesses Dougie, Ian C, Peter T. The guys who provided morale support Ian T, Geoff M, Ted R. People who kindly offered support Cameron, JohnJ, Amie and the many kind words and smiles from people like Michele, Lizanne, Chris, Lindsay, Dayna, Camilla, Bronwen, Eleri, Adam, Weiyun, Marion, Geoff S (and even Marko Turner from BondiFit) ...... I think I have named the entire DHBC membership. Also had a great lawyer, Jacob Carswell. Cycling NSW also had a rep there who was prepared to act as an expert witness, Ray Godkin.
Will add more when I it comes to mind.
Should have joined DHBC earlier.

[Eleri]

Great news Marc! Really pleased to hear that and good on you for fighting it.

[marc2131]

Forgot to mention, Stuart H's invaluable video evidence! If Stuart wasnt there with his trusty helmet cam, it would have been much harder to convince the magistrate. Thanks Stuart.

[Lizanne]

Congrats! It only makes sense

[marc2131]

Dougie was the star witness. Apparently the magistrate took a liking to Doug's testimony. Wasnt present when Doug was cross examined (I had to be out of the courtroom because I was taking the stand next). By the time I took the stand, you could see the magistrate was preoccupied with writing his summation (?). Dougie made up his mind for him.

[Stuart]

Fantastic news Marc. DHBC pulling together have defeated 'the man' Those helmet cams are a great investment and not only as a traffic offence record; you should see the footage I'm getting in Europe. See you all at slowies in July.

[rhys]

Fantastic news Marc, you must be so relieved. To go through what happened and then be charged with negligent riding must have been very insulting.

How are things working out with the driver, or are you not supposed to say at this juncture?

[Karzie]

One major lesson learned is the effectiveness of a reliable witness on the back of the pack. A qualified reliable witness with an HD headcam as tail-end charlie is gilt-edge security.

[timyone]

heaps good to hear

[weiyun]

Great news and relief!

Did the magistrate/police comment on why the charge was laid in the first place and anything should be done to prevent silly charges in the future?

[Karzie]

Did the magistrate/police comment on why the charge was laid in the first place and anything should be done to prevent silly charges in the future?

Given our video evidence and a reliable witness (Dougie), he wanted to know why they proceeded with a very suspect witness as their only evidence.

Jacob (our solicitor) has asked for costs to be awarded. The judge was initially sceptical, but Jacobs argument was very convincing, so he has booked another date to argue the toss. They were furious in the first place, but this was insult to injury and they just packed up and stormed out.

Getting costs out of them will be the most effective method of stopping this sort of vindictive prosecution.

[Dougie]

I recall the magistrate repeating a number of times "that he had no experience in this (cycling) and therefore how should he know what is dangerous or negligent". He implied that if he did have some knowledge he would have used it in his consideration. He was certainly of the opinion that at 2 metres apart and at 25kph "that didn't leave much room for error". Another interesting point he made was in reference to riding in a bunch "it may be what they do, but it doesn't mean it is safe". My impression was that he was really going to take us to task.

When I was called to take the witness box (I can tell you that I NEVER want to get into one of those again!) Jacob established my experience and as it turned out MOST importantly my "credentials" as a CycleSkills Coach from CA/CNSW. I suddenly became the expert in the room. The magistrate seemed to determine that as Paceline riding and Bunch Riding were taught skills then it was therefore a safe practice and in itself not negligent. He asked very incisive questions and I really felt that he was very keen to completely establish in his own mind the situation and positioning of rider sequence, in general, immediately prior to the accident and moment of the accident. I felt he also very much made each solicitor work very hard to win a favourable point. There was no free ride given to either side. Jacob performed superbly under extremely direct attention and he never gave up. If a point was knocked down by the magistrate Jacob took a different tack and leapt into the fray again. I would have him in my corner in a heartbeat if this ever occurred again.

I wasn’t allowed to hear the evidence given by the Police witness however from the cross examination that the prosecutor gave me it was pretty evident that the fellow stated that Marc was 10cm off Peter’s wheel and riding in excess of 30kph! The magistrate noted that my testimony, Marc’s and Stuart’ video evidence all tallied and made the evidence of the Police’s witness “less than compelling”. With that statement, he started to sum it all up. He read from his notes and they were very detailed, nothing was missed. It was all over red rover for the Police and the magistrate was less than impressed that the matter was brought before him. I guess the one thing I took away from it was that our ride leaders are very important from a credibility perspective.

A great result for Marc and I am sure a huge weight is now lifted from his shoulders.

[Stuart]

Did we work out where the police 'witness' came from?

[Karzie]

From his evidence, you would have thought that he was right in the middle of the pack. A fact that the Jacob picked up on and asked him if it was really possible for three riders to occupy 2 metres of space. He assured Jacob that it was....
As the matter has been dealt with, I think I can safely say that they were unlucky enough to have a psychopath offer to help them with their case. He saw everything they wanted him to have seen.

He seemed very contemptuous of our red jerseys and riding together. Jacob asked him if he'd ever been a member of a bicycle club and he said "Yes". "Did you wear a club jersey?" he asked, "No" he replied most emphatically. "And what activities did you do with the club?" he enquired. A question that he didn't even understand, let alone be able to answer. A pathalogical liar if ever I've had the displeasure.

On exiting the witness box, our former club cyclist walked past us and spat obscenities at us under his breath.

In answer to your question, Stuart, by his accent he came from South Africa.

[marc2131]

Looking back with the benefit of hindsight, I think the 2 funniest things that happened that day was when;

At the start of the hearing, obviously annoyed at me going to court over a lousy $59 infringement notice, bringing in 4 witnesses, a lawyer and an 'expert witness' from Cycling NSW. The magistrate emphasised the excessive court time it would take.

It was at this time the magistrate said how he'd have no problem imposing court costs on the defendent (me) of approximately $2K to $3K should we lose. I sat there gobsmacked and shocked - had been earlier told it would only be a few hundred. Jacob (lawyer) looked worried too, and came to see if I wanted to abandon the hearing. Ian (karzie) and Peter T seemed more resolute saying they'd run a 'chook raffle'. Armed with that I said go ahead!

Bit of a risk, but it worked out well. Good to see the look on the 2 coppers faces as the summation was read out by the magistrate. That is the last time those 2 will try to pick on cyclists again.

[weiyun]

Was there any comment by the magistrate or other members of the law on the action of the SUV driver who initiated this whole event?

[Dougie]

I recall the judge saying a couple of times that he wasn't here to consider the negligence of any other person than that who was before the court.

He also told the police that he couldn't understand why the defendant wasn't simply given a caution at the time and everyone simply moved on.

By the end of the hearing I think he was pretty mad at the police for starting it all in the first place.

As for the witness for the prosecution. I don't recall seeing him there on the morning helping Marc with this injuries. Clearly his powers of observation are not that great. when he looked in his mirror at home he failed to notice that his "going to court" clothes failed to match. An ensemble consisting of a double breasted suit jacket, open collar, jeans and desert boots is not going to get you on the front cover of Bicycling Australia

[rhys]

Is this star witness known to club members?

[marc2131]

Doubt if he'd be showing his face around CP in the coming weeks or even months.
Answering Rhys' question: No.

[Stuart]

Congrat's Marc about winning the court case. I would have thought seeing Dougie, Karzie and Pete T in a suit and tie would have been a fomidable force. It really kept me laughing over here in France, especially in relation to the Chook Raffle. Well done Team. By the way this is Jo, not Stuart.

[marc2131]

Delete .

[AliG]

Great that you had the guts to fight it and that all the witnesses were so well organised in getting their statements together so quickly and willing to attend court, which can be nerve-wracking...

Hopefully the case makes its way through the internal review processes of the police. From memory, not long ago the head of Newtown Police Station said something along the lines that cyclists should approach police about incidents involving cars. Yet, this case may send the message that if the police get involved, you could face a fine, as well as the injuries.

[marc2131]

Just got back from Downing Centre Court this morning. Jacob (lawyer) was claiming costs from the NSW Police. As many of you know, my conviction was thrown out of court on the 8th June.

The magistrate agreed the Police were liable for costs because they were in receipt of all evidence at an early stage (Stuart hand-delivered the video evidence 24 hours after the accident), but despite this, pursued issuing me with an infringement despite the evidence clearly showing otherwise.

Court costs of $3,200 plus GST was given to the defence. In other words, I have no legal costs.

[Eleri]

Just got back from Downing Centre Court this morning. Jacob (lawyer) was claiming costs from the NSW Police. As many of you know, my conviction was thrown out of court on the 8th June.

The magistrate agreed the Police were liable for costs because they were in receipt of all evidence at an early stage (Stuart hand-delivered the video evidence 24 hours after the accident), but despite this, pursued issuing me with an infringement despite the evidence clearly showing otherwise.

Court costs of $3,200 plus GST was given to the defence. In other words, I have no legal costs.

Hey! Good result Marc!! Well done team.

[Stuart]

Fantastic news Marc. Pity that you had to go through all that BS though.

[marc2131]

Fantastic news Marc. Pity that you had to go through all that BS though.

All good BS must end eventually.

[timothy_clifford]

Nice photo, Marc.


And nice writing again Mr O'.
http://www.smh.com.au/nsw/wheels-of-jus ... 20ut3.html

[geoff m]

Good to see

[geoffs]

Great win Marc. Thanks must also go to Ian Carswells SON (edited oops) Jason.
Just saw the article in SMH about the incident by michael reilly
http://m.smh.com.au/nsw/wheels-of-justi ... 20ut3.html

[Karzie]

Thanks must also go to Ian Carswells brother Jason.

actually should be: son, Jacob. That's what editorial cutbacks at the Herald do I guess...

[rhys]

Proud dad! Marc, should have been a model. Seen here with blue steel.

[PeterOS]

Well done to all involved, great result.

[Dougie]

Proud dad! Marc, should have been a model. Seen here with blue steel.

Yes, marc rides a Blue Steel. If you look closely you can make out the model on his downtube, "Zoolander". It's an odd make and some riders have reported handling difficulties as it doesn't turn left........

[marc2131]

An update by Michael O'Reilly from the Sydney Morning Herald:

http://www.smh.com.au/executive-style/f ... 213xu.html