New cycling laws in Victoria - the good, the bad and the ugly
I want to start this post by stating that if you break the law, you deserve everything you get. This especially applies to people who kill or injure someone. I got this from today's on-line edition of the Melbourne Age published by Fairfax and generally one of the more liberal papers in Australia.
Cyclists face jail for road breaches
March 6, 2008
Under the laws, cyclists would face jail and fines for serious offences that result in death or injury to pedestrians, other cyclists or even motorists.
The laws were introduced after a series of incidents involving cyclists, including the death of a 77-year-old man in Mentone in 2006 during the so-called "Hell Ride".
Roads minister Tim Pallas said cyclists who broke the law must be treated like drivers who drove illegally.
"If a cyclist is taking actions that are comparable to a driver acting negligently, then they should be subject to the same (penalties)," Mr Pallas said.
The new laws were included last month in the State Government's Arrive Alive 2 strategy, but received no publicity.
Mr Pallas was speaking following an incident on Tuesday in which a cyclist hit a pedestrian getting off a city tram. The pedestrian, Don McFadyen, 62, was last night in intensive care with a dislocated hip and a severe fracture of the arm.
The rider, believed to be a woman in her 20s, stopped but rode off soon after. Yesterday, Victoria Police said a woman, 24, from Thornbury, had made contact with the Northcote police station about the incident and was helping them with their inquiries.
Bicycling Victoria chief executive Harry Barber said yesterday he supported the new laws, although he was disappointed that his organisation had not been consulted on the changes.
"If we want respect on the roads, we have to abide by the same laws as motorists," he said.
He said that too many riders were cycling past trams without stopping to let passengers off.
"I think it's appropriate for police to have a blitz on cyclists not stopping for trams," Mr Barber said.
In August 2006, James Gould was killed as he crossed Beach Road in Mentone. William Raisin-Shaw, the cyclist who hit Mr Gould, was later fined $400.
At the time, magistrate Charlie Rozencwajg acknowledged that it was a "pathetic" fine and called for tougher laws. Under the laws at the time, Raisin-Shaw was charged only with failing to stop at a red light.
Mr McFadyen's wife, Jenny, said her husband was lucky not to have been more seriously injured. "When I arrived, he was just lying on the road, very stressed and in horrific pain," she said.
Ms McFadyen said the cyclist must have been going quickly.
Melbourne City Council is working on a strategy to improve safety in the city, and reduce "conflict points" for pedestrians, cyclists and motorists. Mr Pallas ruled out introducing compulsory registration for cyclists.
I support the laws in principle because there is a tendency in among some to regard cyclists as having less regard for the road rules as motorists. The James Gould incident illustrated the dangers posed when combining high speed cycling with pedestrians. I had a feeling that something like these laws were going to be introduced after this incident. As the article mentions William Raisin-Shaw was only charged with failing to stop at a red light. At the time of his trial there were some in the Victorian media who speculated that he would be charged with manslaughter or conduct endangering life. The problem with this would be if he was successfully convicted of manslaughter etc there would have been questions asked about what should happen with motorists - especially those who hit and run. Raisin-Shaw stopped and admitted to the police that he struck the pedestrian. At his trial he also pleaded guilty to failing to stop at a red light. Magistrate Charlie Rozencwajg said many people would consider the $400 fine "pathetic" (ABC news ).
- Why the investigating police did not ask or require Mr McGee to submit to a breath analysis test or blood test and did not apply for orders that such tests be conducted under the Criminal Law (Forensic Procedures) Act in order to determine Mr McGee’s blood alcohol concentration.
- Whether the principal witness, Mr Tony Felice, was given a proper opportunity to give evidence about his observations of Mr McGee’s driving immediately before the collision generally and on the defence case that McGee was attempting to overtake Mr Felice from a position about 25 to 30 metres to the rear of Felice’s car.
- Whether Mr Tony or Mr John Zisimou provided information to the police about the manner of McGee’s driving prior to and following the collision.
- Why the decision was made not to call Mr Tony or Mr John Zisimou or both at trial.
- Whether it would have served the interests of justice for the prosecution to lead, at trial, evidence in rebuttal of the psychiatric evidence presented by the defence.
- If the answer to the preceding question is yes why that evidence was not presented. In particular, was there an adequate opportunity for rebuttal evidence to be presented.
- Whether it would have served the interests of justice for the prosecution to present expert psychiatric or other evidence on the sentencing hearing to support it’s submission that the Court should reject the explanation given at trial for Mr McGee’s failure to stop and give assistance.
- If the answer to the preceding question is yes why that evidence was not presented. In particular, was there an adequate opportunity to present that evidence.
McGee and his brother were to stand trial for conspiracy According to on 22 August 2007 McGee and his brother Craig have asked the District Court to permanently stop their upcoming conspiracy trial. The brothers claim they cannot get a fair hearing in South Australia due to "poisonous" reporting in the media and "prejudicial" political commentary. Today Tim Game, SC, for McGee, said a a specialist in criminology and psychology would be called to give evidence. That expert would discuss how a jury would react to the brothers, given the "overwhelmingly negative" public perception of the duo.
Judge Malcolm Robertson refused to hear from the expert without a report addressing his credentials, expertise and nature of his evidence. Mr Game said an application for an adjournment was therefore "inevitable". The hearing was originally set down for three days in July. However, the first day of proceedings was taken up with argument over suppression orders. With evidence still to be heard, the case had to be adjourned until this week. McGee, 52, and his 57-year-old brother have pleaded not guilty to attempting to pervert the course of justice.
The charges relate to the duo's conduct in the hours after the 2004 hit-run death of cyclist Ian Humphrey. Eugene McGee was acquitted of causing Mr Humphrey's death by dangerous driving but was fined for driving without due care. In a subsequent royal commission, he testified his brother Craig alerted him when it was safe to go to their mother's Kapunda house after police had been there looking for him. He also said Craig drove the pair to Adelaide that night, stopping at a police roadblock without alerting officers to his brother's presence in the car. If convicted, the brothers face a maximum, four-year jail term. However according to this permanent stay was rejected. The outcome of this case is likely to be a long-way off. An example of what could happen is the case of Denis Vlado Dundovic who was sentenced to five years and two months in jail with a non-parole period of four years and two months after pleading guilty to aggravated causing death by dangerous driving and aggravated causing harm by dangerous driving (). Senator Elect Nick Xenophon and South Australian member of the Legislative Council Dennis Hood have led calls for mandatory sentencing over road incidents with Nick Xenophon calling for minimum sentence to be applied if there was a "cumulative" number of aggravating factors. "For instance, if an offender is going well over the speed limit and is under the influence of drugs or alcohol then those two factors combined should trigger a mandatory minimum sentence," Mr Xenophon said.
Mandatory sentencing is dangerous territory to travel in and depending on perspective offenders may be treated too leniently or with excessive severity. In any case I am hoping that there will be an attempt by the government in Victoria and other states in Australia to take a proactive approach to cycling culture and enforcement of road rules applicable to cycling. Example of what needs to change can be seen in my own experiences. I have only once seen the NSW police bicycle patrol on the Cooks River Cycleway. I also remember when the results of the blood tests taken after my accident, I was asked to attend the local police station. I attended on two occasions and on each time I was told I did not need to report the accident. Finally able to arrange a meeting with the responsible officer. As my statement was being taken I began to suspect that the police were looking at the possibility of charging me with failure to report an accident. Things changed when it came out that the accident was a cycling accident and that no one else had been injured or third party's property damaged. I have heard from other cyclists who have had life threatening incidents or even actual injuries caused by motorists that their reports to the police were dismissed or ignored. By ignoring motorists actions against cyclists the police and government are giving the "rogue" element in cycling culture the perfect excuse for their behaviour.
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Friday, March 7th, 2008 at 1:00 am under