Court handling of cases involving bike riders
Natural bias among magistrates and judges who predominantly drive, and don’t ride themselves, results in unfair outcomes. This, in turn, means police know it’s usually not worth the effort to prosecute cases against drivers, leading to lack of enforcement. Research done in 2002 by the UNSW Faculty of Law analysed judgements in negligence cases involving bike riders over ten years and found they were generally treated less favourably than pedestrians or drivers.
Treatment_of_cyclists_in_Australian_negligence_cases (pdf)
Examples
Recent cases reported in the media (though remember not all the facts of the case are reported)
- On Sydney’s north shore a driver cut off a young doctor who had just completed her medical studies, killing her, and got his sentence reduced on appeal to get his licence back in just 18 months. (26/4/18)
- In Leicester a young tractor driver killed a cyclist with careless overtaking. The judge said, “It was an error of judgement; an error other motorists would have made in the same circumstances.” (26/4/18)
These comments would be unacceptable in another context. Imagine, “the employer’s failure to provide a safe work environment was an error of judgement, one other employers would have made in the circumstances”. Or, below, for a judge to hold the shop keeper 20% responsible because “he should have known there could be an armed robbery”, or a victim of rape, for being out after dark.
- In 2006, in DOS SANTOS v C MORRIS PAINTING & DECORATING & ANOR [2006] NSWCA 54, the driver cut off the cyclist to park but the judge found the cyclist 20% liable because “he should have known the driver was likely to cut him off”.
When it is ‘normal’ behaviour for a magistrate or judge to drink drive, or for their friends to, this behaviour is regarded as normal and not to be harshly punished. Similarly domestic violence or other culturally acceptable offences in the past. For example, in 1992 Justice Bollen said ‘a measure of rougher than usual handling’ is acceptable behaviour by a husband seeking consent to sexual intercourse from his wife. There was an outcry and a call for change.
What’s the solution?
The Judicial Commission of NSW is responsible for continuing judicial education. Judicial officers need to meet a national standard of 5 days of education each year, to ensure they are informed about changes to the law, community values, court practice and procedure. The Judicial Commission holds annual conferences. It also deals with complaints.
The mission of the Judicial Commission is “To promote the highest standards of judicial behaviour, performance and decision making”. Their vision is “The people of NSW will have confidence in the exceptional ability and performance of judicial officers who will (1) have a high calibre of judicial knowledge and skills, (2) achieve consistency in imposing sentences, and (3) behave ethically and impartially in their role.
It may be possible to work with the Commission, or with an empathetic respected member of the judicial community, to develop training materials or present at conferences, to help bring forward the day when transport mode bias is recognised and addressed, as with previous cultural shifts in acceptability.
It would be useful to have a well researched and strategic case, building on the UNSW research and learning from how previous bias issues have been addressed.
A start would be to identify allies in the judicial system who could advise and guide the development of a project.
Recognition of vulnerability when sentencing
In 2002 the NSW Parliament brought in the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002. The Amendment added “In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case” and included, “the personal circumstances of any victim of the offence, including the age of the victim (particularly if the victim is very old or very young), and any physical or mental disability of the victim, and any vulnerability of the victim arising because of the nature of the victim’s occupation”. No mention of the nature of the victim’s transport mode, but the principle would seem to hold.
The debate in Parliament’s Legislative Assembly on 21 March 2002, for the Second Reading, raises many points which would equally apply in a road environment, where vulnerable parties can be targeted by offenders. It could be interesting to explore whether there is appetite to extend this principle – perhaps only if drivers are fed up with being monstered by trucks on the motorway.
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