Saturday, November 19, 2011

Baby no.2 & her day in court

('Happy-After-Court-Hour' at The Rose Hotel, Surry Hills)

...And so it was that yesterday it was Baby No.2's turn at the Downing Centre to give evidence as to why she should be found innocent of her conscientious objection to mandatory bicycle helmet laws.

Initially she played 'musical magistrates' and moved from one court to another, but eventually she arrived in a court where the magistrate was prepared to hear her evidence.

Prima facie, not all of her evidence or her experts' evidence was accepted. In fact the general court sentiment was that the evidence pertaining to risk compensation and serious brain injury was equivocal; and that the existence of climate change was still in scientific dispute, and/or was common knowledge (therefore didn't require an expert to comment upon it), and/or was certainly not imminent.

Notwithstanding the long day with many external interruptions dotted with the usual comings & goings of busy-court life, BN2 was formidable and I could barely contain my admiration. The prosecution was pretty formidable too and played a great match, nippy in the corners with some great long passes landing neatly in goal - full marks.

...and whilst the prosecution seemed to be angling for more penalties against BN2 when it was clear that necessity had not been made out in terms of climate change and /or immediacy, it was with relief as the final whistle went that the 'referee' deemed she was only to receive a section 10(1)(a) dismissal.

Oh boy! oh boy! & then followed some heart-warming magical-moment stuff:

The magistrate looked at me and asked BN2, 'is this mum?'

'Yes,' she replied.

'You must be very proud!'

'Yes,' I whispered in an almost inaudible gasp of bursting maternal pride!

...and he proceeded to declare to the court at large how admirable it was to see someone so young arrive in court with such principled convictions but that the aim must always be to leave without one.

He praised her for her courage, and her eloquent well conducted argument; expressed admiration for her deep commitment to the environment; & predicted that she would be an asset to the legal community upon the completion of her degree.

Never has a mother been so proud!


  1. Fantastic news Sue, absolutely fantastic. I hope you and BN2 celebrated afterwards!
    Jason (formerly of Tassie).

  2. How can there be any possible doubt about risk compensation?

    If you measure cycling speed of the same cyclists with and without helmets and there is a significant difference - they ride faster with helmets - risk compensation has been demonstrated beyond a shadow of doubt.

    If you measure the distance drivers leave when overtaking the same cyclists with and without a helmet and there is a significant difference - they leave less room when the cyclist wore a helmet - risk compensation has been demonstrated beyond a shadow of doubt.

    But congrats to you and BN2! I just hope she doesn't get a bill to pay the victims' compensation levy, since the minister hasn't yet announced the date when it will no longer apply to dismissals.

  3. Wow... I'm so proud of you and BN2. Well done to you all. None of this is a waste by any means. If we are all chipping away, it may well crumble soon.



  4. Great news Sue, congratulations to you and BN2. There is a consistent pattern emerging in NSW. Those challenging the helmet laws in Court are intelligent, well informed and clearly argue their cases so as to almost take the Magistrates by surprise with their expertise.
    It can only be a matter of time before this bears fruit. The Police may tire of appearing in Court against such formidable advocates for helmet choice !
    I'm not surprised you are proud of your daughter. She is a great asset to the anti MHL team.
    Well done !

  5. Congratulations to both of you. You should both be proud of what you are achieving. The magistrate's closing remarks must have been so good to hear. I loved the one about "leaving without one (conviction)"
    I suppose the question is where to next. With yourselves and Dan, the courts' take seems to be that your position is taken as reasonable, sincerely believed and well argued, but that the "immediacy" required for a defence of necessity is lacking. I'm not sure how you will be able to get round this.
    My own thoughts are moving towards some sort of defence based on rights. I am sure there must be some corner of law that requires a higher level of evidence to compel behaviour than what is required to excuse behaviour. What I'm getting at is that I don't think we should have to prove beyond doubt that wearing a helmet puts us at greater risk, only that such a belief is reasonable and sincerely held. The onus of proof should be on the state if it wishes to compel us, not on the individual who wishes to protect him/herself to the best of their judgement. But then, we don't have many enshrined rights, and I keep coming up against the fact that I don't have to ride a bicycle.
    Out of interest, who were your expert witnesses?

  6. Thanks, everyone! Big relief it's all over for BN2 - re experts: Prof Chris Rissel (lecturer & researcher, Sydney Uni) & Mr Robert Brewster (sustainable & environmental business manger, Woollhara Council)

    - & yes it'll be very interesting to see whether she does get a VCL bill or not!!