Friday, September 27, 2013

Guilty as charged - my day in court

(Photos: I feel like Newtown's St Mary Street counterflow - only I'm not legal)

I'm a criminal again - and do you know what everyone has been telling me?

"You won't be able to travel to the US!"

Well, in answer to that, dear peeps, I boycotted the US way before they did me so ... whoop-di-doo-dah!

But back to the matter in hand.

Last week at the Downing Centre in Sydney, I presented myself to Local Court 5:1 to defend the matter of Australian bicycle helmet crime.

When my name was called out I approached the bar table to give a brief 'heads-up' on what I would be saying and then resumed my seat next to one of the many police in the room. As I did so I couldn't help but notice the young police-prosecutor (PP) at the bar table mouth to a row of incessantly-chatting young suits sitting along the wall to the side of her, "who was that?"

Nice, I thought!

Anyway, not long after that she made her way to the back of the court where I was sitting and asked me to follow her outside ... so I did.

She mentioned that she was taking me to meet the Duty Solicitor, and I questioned why as I was representing myself. She reassured me all would be fine and along we trotted to a glass-box room seemingly plonked in the middle of the waiting area outside court 5:1.

After making introductions to aforementioned Duty Solicitor (DS) and his young 'colleague-student-wife-gf-sister-daughter ... don't-know-never-formally-explained,' she left us to it.

As I had with the PP, I raised with the DS that I was representing myself and therefore unclear of the exact purpose of this meeting. Once again I was reassured that all would be fine and that he was just giving away free advice ... that he did this sort of thing once a month ... good community service ... blah-de-blah-de-blah-blah. Clearly this act of goodness was much admired by young 'colleague-student-wife-gf-sister-daughter? ... don't-know-never-formally-explained,' who protested a desire to do same when she grew up ... sigh ...

The 'pro-bono love-in' put me on edge but sit down I did as the DS read through my police brief (I don’t remember giving my permission for him to have it or read it ... ?).

Anyway a daft Q&A ensued along the lines of 'you're sure you weren't wearing a helmet' which then followed with questions on apprehended violence orders (AVOs) that had been mixed up with my helmet brief - oh boy did that make me feel secure in our legal system??? Evidently someone else's stuff had been inserted with mine - for the record THERE ARE NO AVOs OUT AGAINST ME!

Quickly realising the AVO wrongness, he proceeded to look up 'bicycle helmet law' on natty smart phone and to share with me what regulation 256 had to say on the issue (spare me) subsequently advising that all would be well if I pleaded guilty by way of explanation.

I stood up immediately, thanked him for his advice but declared I wouldn’t be taking it. I continued that I fully intended to run my defended hearing with a plea of not guilty to which he said tersely that I would receive a criminal conviction, a big fine and that he would now have to mention to the court that I had not taken his advice.

Stepping out of the glass box room into the waiting area now packed to the rafters with polished unarmed police, I cooly mentioned that I had not sought his advice and felt trapped by his intended action to mention to the court my disinclination to take his advice ... to which he replied that if I didn’t want to heed his advice and wished to waste the court time, go ahead.

Now I took issue with his inference that I was wasting court time and said so, reminding him that I was as equally entitled to my day in court as anyone else waiting to be heard and that it was grossly unfair if my matter was automatically deemed vexatious because of the nature of the crime and my personal beliefs.

I also expressed my lack of 'impressed-ness' with regard to the AVO papers included in the police brief of evidence against me.

All round most unpleasant and I hadn’t even begun my defended-hearing.

Now completely ruffled, I took my seat again in the court next to one of the polished unarmed police inside the courtroom, and waited many hours before I gave sworn (or rather in my case, affirmed) evidence.

Eventually taking the stand, I stated that my circumstances and the extensive review of peer-reviewed articles conducted by me over the past few years had led me to the belief that I would be in danger if I rode a bicycle with a helmet, and would continue to be in danger unless I carried out my conduct of riding a bicycle without a helmet, and that for many years I had been communicating with our elected representatives urging revocation of Regulation 256.

I reiterated that I honestly believed that the risk of serious brain injury or death would be increased if I wore a helmet, and I held this belief on reasonable grounds. (At this point in order to support my argument, I submitted documents detailing the ACT coroner's findings into the death of a cyclist killed in a motor-vehicle accident whilst wearing a bicycle helmet accompanied by the coroner's post mortem pathologist's report that detailed the closed head injury - I also tendered my submission to the Vulnerable Road Users Inquiry accompanied by my letter to the then Minister for Roads, and Judge Ellis' judgment from the District Court appeal in March 2010).

I told the court that I understood from my readings that wearing a helmet could increase the angular acceleration which an oblique impulse imparts to the head, increasing the risk of damage to the brain (especially diffuse axonal injury)' and this I supported with a copy of an RTA memo, obtained through freedom of information, where on page 2, line 6 it states that 'there is the possibility that some helmets, in combination with particular size head forms, may have a small dis-benefit with regards to rotational acceleration.'

I also noted due to the fact that wearing a helmet increases the effective head circumference, it had the effect of amplifying rotational forces applied to the head in the event of a collision. I further explained for the court's benefit that rotational forces were the primary mechanism by which serious brain injury occurs, specifically diffuse axonal injury, and as such any increase in these forces increases the risk of such an injury.

I continued that with regards to the proportionality of response, the negative consequences of breaking the law by cycling without a helmet were not out of proportion with the danger intended to be averted by me by following it, and that the proportion between the threat and the degree of law-breaking underpinned the presence of my honest belief that it was necessary in self-defence to do what I did - namely ride a bicycle without wearing a helmet.

And with regards to immediacy of danger, I stated that catastrophic climate change compelled me to use a bicycle rather than a car which subsequently induced me to break the law to avoid the dire consequences of catastrophic brain injury.

I continued that considering diminishing coastlines, floods, dust-storms and dying rivers, it was now a question of survival to cycle whenever and wherever I could in a bid to curtail carbon emissions, and that climate justice could no longer be ignored as catastrophic climate change dictated immediate global responsibilities.

I also mentioned that I routinely transport groceries in Scone which would be impossible to do on foot, and that similarly in Sydney I required my bicycle for city living, and that by choosing to cycle and not to take public transport, I freed up a seat on a train or a bus for someone else who chose to take public transport rather than a bicycle.

I explained that I felt it was not reasonable I should be constrained by law to put my health and my life at risk when the safer alternative of riding a bicycle without a helmet (currently defined as an offence) would actually provide more protection against that risk arguably for both me and the planet.

I concluded that I honestly believed on reasonable grounds that the act of riding a bicycle without a helmet was necessary to preserve me from a serious danger to my life or my physical health which riding with a helmet would entail and that in the circumstances, the act of riding a bicycle without a helmet was not out of proportion to the danger to be averted and possessed an immediacy with regards to catastrophic climate change and my need to minimise my carbon footprint whenever and wherever possible.

Therefore I believed:

* that my beliefs were reasonably held as I perceived them and also as a reasonable person would perceive that I would hold them, and

* that it was and would continue to remain necessary for me to cycle and to do so without a helmet in self-defence, and

* that I should not be compelled by any state to do an act which put my health and life in greater danger than if I declined to do the act.

Disappointingly the court was not persuaded by my argument and I was convicted.

... guilty again, criminally convicted again.

Australia, done in your name again ... why? Oh what a day ...

... and as I cycled off to State Parliament to meet with my local member, the Hon. George Souris, I couldn’t help thinking about the unsettling happenings of those past 7 hours in court - all of which I shared with him as we sat in his office overlooking the Domain.

☹ I was particularly rattled that the police prosecutor had taken me without clear explanation to see the duty solicitor, automatically placing me in a position where I may have appeared ungracious and vexatious by declining his advice.

☹ I was particularly rattled to observe this close association between the prosecution and the defence when I had always supposed that they played for different teams

☹ I was particularly rattled that a copy of the police brief of evidence against me had been disseminated to other parties, namely the duty solicitor, without my permission.

☹ I was particularly rattled to be asked about AVO matters included in the police brief of evidence against me which were completely WRONG & NOTHING TO DO WITH ME

☹ I was particularly rattled by the incorrect Roads & Traffic Authority's (RTA's) now Roads & Maritime Services' (RMS') traffic record supplied to the police. Outrageously my first bicycle helmet matter way back in 2009 had been recorded as me riding 'alone' on a motor-bike without a helmet!!! For the record, I HAVE NEVER BEEN THE DRIVER/RIDER ON A MOTOR-BIKE! Such details are important as they have a bearing on your reputation particularly at the sentencing stage of defended hearings. Riding a motor bike without a helmet is a matter that is recorded on your traffic record; riding a bicycle without a helmet is a matter that is not. Was this done on purpose so that my traffic record would look more substantially naughty? But what I really want to know is how does a large government funded body such as the RMS with considerable and immense resources at their fingertips get this so wrong?

☹ I was particularly rattled when my local MP warned me that if I continued objecting to bicycle helmet law in my current campaigning manner that I could end up going to prison ... to that unsettling warning I heartily retorted that his government ought to be ashamed of themselves if they were already aware that their laws and provisions could end up seeing the incarceration of me for my conscientious objection to a questionable safety device.

Oh dear ... it's all so exhausting ...

Anyhoo, you probably won't be surprised to read that prior to meeting up with George, my honourable pooh-bah, I had lodged an appeal the minute I walked out of the Downing Centre Local Court no. 5:1 ...

... but basically notwithstanding all that and everything else to come ... it's sighs all round as always ...



  1. Wow!!
    Thank (insert whatever thing you prefer to thank here) we have somebody like you on our side to beard the lion in his den on our behalf. It sounds horrific! In fact, it sounds like something out of a spy thriller, with all these dark characters floating around and false records/accusations against our protagonist! You could write a book, I am sure!
    Was a rational (pfft!)reason given for the dismissal of your arguement?
    If you get saddled with a fine, I'll bet you could crowd-source the money from the loyal non-helmet wearers of Oz. It seems grossly unfair for you to have to fight the good fight and then have to pay for it financially as well!
    All the best with your appeal!

  2. Not just of Oz. This is an important battle for utilitarian cyclists everywhere. Even in the Netherlands and Denmark, the foam-hat lobby never stops trying to undermine the cycling culture.

    Who is your MP, so the world's cyclists can inundate him with letters "shame, shame".

    Sue, I'm really sorry that you have to go through this crap.

    "King (or Queen) of the World", by Dutch band Anthony's Putsch, to remind us what we are fighting for: Health, safety and fun for the future generations:

  3. Thanks for the full account of Kafka's Australia. I am optimistic that you may (as with the defence of necessity) do better at the district court than at the local one. Who knows - fingers crossed.

  4. Great concepts on this blog. This is really a nice post.I really like this post.Downing Centre Local Court

  5. Sue, I'm truly appalled at your treatment, so angry I hardly know where to begin. That such a well prepared case could have been so quickly disregarded tells me our legal system has lost the plot. Most concerning, is that no-one is interested in the detail and content of what you are putting before them - that you are processed like a criminal, who is in some way, a threat to the social order.
    I was particularly angry at the implication , by your local member, that you were the one with the problem. Clearly, he is the one who has to do something about this absurd and ongoing injustice.
    I am aware that you are carrying a disproportionate burden in fighting this law for all of us. Hope you are ok and let us know if there is any meaningful support we can give you.

  6. Poor Sue! I feel your frustration.

    Keep fighting the good fight. Your an inspiration to all of us.

  7. We have the internet now. Sue deserves serious international support. And do remember that Velo-City 2014 is set for Adelaide - bit of a sick joke, that.

  8. Sue thanks so much for battling. So frustrating we are under the commonwralth and the mayor of london promotes helmetless cycling. I am aware you can apply for an exemption in VIC ; maybe nsw also? all your valid medical related points may do the trick.

  9. I doubt the Commonwealth has any influence. In Canada there are provinces (such as British Columbia, where they should know better, as they claim to be "green") that have enacted MHLs. So far none in Québec!

    Here is another motivation for all of us, and by that I also mean cyclists who choose to wear a helmet. Increasing cycling's modal share is more and more important: (This summarizes several recent press articles).

  10. First they laugh at you;
    Then they ignore you;
    Then they fight you;
    Then you win. (M. Ghandi ).
    N.B. probably best to decline Catering Services if imprisoned .... George S@uros is probably right about that; point is even the British Empire had to eventually concede that Nehru and Micheal Collins were harder to ignore when banged up than independent and free. Respect Sue Abbott.
    Freedom of Choice! Freedom Now!

  11. Sue, being the sole 'victim' of this crime, I hope you receive a hefty benefit from the victims of crime levy. You deserve it. Keep fighting this ridiculous law.

  12. Your ordeal combines disturbing Kafkaesque and Orwellian elements - and I'd be very worried on your part about the possible manifestation of other nightmarish scenarios.

    However, let's hope the suspicious turn of events at the Downing Centre can be attributed more to amateur hour on their part than some shady workings of the legal system aimed at suppression (though you wouldn't discount that).

    It seems that the group think concerning the use of bike helmets in Australia is so deeply rooted and pervasive (particularly among the legal profession) that no one who heard you that day could actually comprehend the logic of your arguments.

    Anyway, whatever happens, keep blogging!


  13. I would guess you can only loose. A Judge can only decide on the law, even if its stupid.
    Pay the fine and fight for a more liberal law.

    In Germany there are also discussions about introducing mandatory wear a helmet
    but the one argue against it that the amount of bicycle riding people will drastically
    decrease and heart diseases increase, giving it a higher risk to die, ...

    1. Don't do it!!!! Avoid mandatory helmet laws at all cost - and with regards to fighting for a more liberal law, that's what I'm doing by not paying my fine and going to court to make the case for the helmet (or not) choice!