Abstract
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On the 7th of June last year I was stopped by the police in my home town of Kyneton (population 5000), and asked why I wasn’t wearing a bicycle helmet. I had been expecting this for some time, as I never wear a helmet while cycling, so I was quite well prepared. We had a polite conversation, lasting twenty minutes. I explained why I believed wearing a helmet put me at more risk of accident, injury or even death, than not wearing a helmet, and pointed out that only two other countries in the world would consider it wrong of me to make this choice. I think the sergeant had some understanding of where I was coming from, but, like most Australians, is emotionally attached to the paradigm of cycling as a dangerous activity, with helmets offering an effective protection from a clear and present danger. He indicated that if I had a medical condition, or a letter from my doctor, that would be ok, but felt unable to issue me with a warning, as I clearly had intended to break the law.
About six weeks later I got an infringement notice in the post. My choices with this were to ignore it (unwise), to pay the fine of $176, or to ask to have the matter heard at the Magistrate’s Court. I chose the last option, and on the form indicated that I intended to plead not guilty. In due course I received a summons in the mail, to appear at the Kyneton Magistrate’s Court for a mention on the 3rd of December.
Court was due to start at 9.30, so I began at 9.00 by reporting to the registrar, and indicating a plea of not guilty. I was instructed to enter the court and talk to the police prosecutor. He was somewhat surprised that I intended to plead not guilty, as I agreed that I had not been wearing a helmet. I think he would have liked to talk me into changing my plea, but I was firm in saying no. Once I explained how I intended the defence to go, he said that there didn’t seem any point of likely agreement with the prosecution, so we would proceed to a contested hearing without a conference.
I was then sent back to the registrar to arrange a date, which involved an hour’s wait including some interesting free advice from a lawyer who was around for other business, but seemed to spot me as an “interesting case”. After reading through my notes on the Victorian Charter of Rights and Responsibilities he said “just give it a go. You won’t win, but why not have a crack”.
Once the date was made, I was instructed to go back to the court, and wait to be called up by the magistrate. I spent the rest of the morning witnessing the sorry procession before the magistrate of excessive speeding, breached intervention orders and use and supply of cannabis and ice. Called up just before lunch, the magistrate stated the charge, and indicated that we had agreed to a contested hearing. The police prosecutor said that I didn’t dispute the facts, but was to depend on a legal argument involving what he called the Human Rights Charter. I think the magistrate was a bit put out by this (perhaps expecting the sort of vague “its against my human rights” claim), so she asked how I intended to do this. I clarified that it was the Victorian Charter I intended to use, and quoted the specific sections and subsections of the Charter I intended to rely on. This seemed to go down well.
There were two police witnesses to the original infringement, and I was asked if I would require both to attend. I said no, that one would be fine, but requested that I be given a copy of their witness statement, which was agreed. A date was set – 8/3/2013 – with a contested hearing set down for two hours.
Before I left, the prosecutor gave me a card with email for the Central Victoria Prosecutions Case Conference Manager, requesting that I contact them and ask to have the charge withdrawn, having regard to my defence. I asked if it was likely to be dropped, and he said no, but that it couldn’t be dropped if I didn’t make a formal request. (I did subsequently contact them with the request as instructed. The reply came back that they would not be dropping the charge, but would proceed to prosecution on the 8th of March)
I had plenty of time to prepare my case. I had always meant to try and base a defence on the Victorian Charter of Rights and Responsibilities, with a view to securing a finding of not guilty. This seemed to me more worthwhile than pleading guilty, and then entering a plea in mitigation, with a request that no conviction be recorded or penalty imposed. As I did my homework however it became increasingly clear to me that my legal argument most likely couldn’t carry the day. However, in the spirit of “nothing ventured, nothing gained”, I prepared a fairly detailed written submission, with accompanying published evidence on the (lack of) efficacy of helmets. The court was never going to enter into discussion of whether I was right in my beliefs or not (that is not their role), however it seemed important to my case to present evidence to demonstrate that my beliefs were based on sound research, and not just “made up after the event” to avoid paying a fine.
On the morning of my hearing, I presented myself to the clerk of courts as required. He indicated that I would probably be heard in about fifteen minutes, as there was only one procedural matter to be heard before my case. I had informal conversation with both the police prosecutor and the police informant (the sergeant who issued the original penalty notice) as to how the case would be run. There was no sense of hostility from any of us,which was good.
Once we were called to the front to conduct the hearing, the magistrate started by seeking a bit of an outline from both parties on what the matters for contention might be. This was relatively informal, though still quite serious.
I explained my case, which was basically that I held a reasonable belief that riding with a helmet on put me at greater risk of injury and death than riding without a helmet (published material supporting this was documented and made available), that I held this belief at the time of the offence, and that I would be derelict in my duty of care to myself if, armed with this knowledge, I had ridden a bicycle while wearing a helmet.
I explained to the magistrate that, even though I acknowledged that the offence was a strict liability offence and there was no onus of proof on the prosecution to demonstrate “a guilty mind”, I still found myself unable to plead guilty as I could not honestly feel that I had done wrong. I also reaffirmed my intention (previously made clear to the prosecution before the hearing) to rely on the Victorian Charter of Human Rights and Responsibilities. The argument was that it was open to the court to interpret or “read up” road rule rule 256 which allowed it to be read in a way consistent with my right to hold and demonstrate in public practice a belief (that wearing a helmet puts me at greater risk of accident, injury and death than not wearing a helmet.). I presented the magistrate and the prosecution with my written submission.
Even before getting to court, I was pretty well aware that this was a very thin argument, and likely couldn’t be upheld by a court. Despite its grand title, the Charter doesn’t offer much in the way of protections that don’t exist through other legal avenues, and it certainly was not designed to in any way invalidate existing legislation. Basically, if the State wanted to enact legislation requiring anyone pushing a pram in a public place to wear a pink tee shirt, they could, and the Charter would offer no protection to someone hauled before the courts charged with pushing a pram in a public place while not wearing a pink tee shirt. Both the police prosecutor (privately after the hearing) and a barrister I spoke with informally before the hearing said much the same thing, that the Charter was little more than a political stunt.
The prosecution had done their homework, and were onto this from the start. The magistrate asked me how I proposed to deal with this obstacle, (his words to me were “you’ve got a bit of an uphill push with your barrow”). I drew his attention to my written submission, where I had acknowledge potential problems with section 32 of the Charter, and had attempted to fudge my way around this. He did take the time to read my submission – throughout he was courteous and considerate. He then told me that there was no prospect of his being able to return a verdict of “not guilty” based on my legal argument. He suggested that I could proceed with my case and plea, and if unhappy with the inevitable outcome, I would have the option of appealing the legal matters to the Supreme Court.
At this stage we more or less had a conversation (not too much “your honour” and standing up and sitting down). I knew that even if I did successfully appeal a guilty verdict to the Supreme Court, the best that I could get there would be to obtain a judgement that regulation 256 was incompatible with specific human rights. This finding would then have to be presented to the Victorian parliament, with a requirement that the appropriate minister respond within a given time. There would be no requirement that the minister review the regulation, only that they respond. Knowing their form on this issue, I would guarantee that the response would be “justifiable limit to human rights given the evidence of safety benefits etc. etc. etc.”
Consequently, I suggested changing my plea to “guilty”, to which the magistrate said he could offer me a good behaviour bond. And that is how it was settled. I have signed an undertaking to be “of good behaviour” for three months. After that time, assuming I honour the undertaking, the proceeding will be closed, with no conviction recorded and no penalty imposed. The only better result, with a plea or finding of guilty, would have been an unconditional discharge.
I have to acknowledge that the police prosecutor behaved in a constructive manner – he volunteered the information that I had, at the time of the offence, presented the police informant with documentation and arguments in support of my beliefs about helmets. This meant that there was no doubt in the magistrate’s mind that I had acted in good faith.
The magistrate himself turned out to be a bit of a weekend road warrior, and told me (why does this always come up with Australian recreational cyclists?) that he had broken or damaged at least three helmets in spills on his bike. I replied that that was interesting, as I had, myself, never come off my bike as an adult, which I think surprised him. No formal discussion of helmets or their effectiveness was entered into throughout the brief hearing.
I’m not quite sure what constitutes a breach of good behaviour, but to be on the safe side I’d better not speed, slip through stop signs, drink and drive or ride my bike without a helmet at least until the 10th of June. After that, the next time I am in court for failing to wear a helmet, there will be no consideration of “prior” offences, as there will be no record of conviction.
And that is how I deal with the overwhelming stupidity of being told what I can and cannot wear whilst going to the shops on my bicycle.