Going to Court in Queensland

Traffic Infringement Notice issued 4 August 2017

Timeline

4 August 2017

On 4 August I was issued with a TIN for not wearing a helmet.  Three members of the QPS bike squad saw fit to attend to the matter.

Initially they asked for a reason, possibly expecting an exemption letter to be produced, they asked if I had one.  I do not and said as much.  At all times being courteous.

They then asked for my reason for riding without a helmet.  I explained that I felt I did not need to basically starting to explain the TGA exception that Sue Abbott has tried (and subsequently she has lost that case in Adelaide).  For whatever reason that is only apparent to themselves they were not interested in me completing my explanation, constantly interjecting, ridiculing me and claiming I should choose other transportation options.  I also explained to them that I was disabled and this is my preferred choice in order to minimise my discomfort and maximise my mobility.  

After a period of time they basically said they were not interested in anything I had to say and were going to issue the TIN, despite saying at the outset that they would take away my details and consider issuing a TIN at a later time.  At this time they also threatened me with arrest and a trip to the watchhouse if I mounted my bike again that day without a helmet. I thought this was particularly over the top.

All three were wearing body cams, and unknown to them I was also recording the interaction with a bike mounted DVR, Fly 12.  It was also obvious that they were checking out my bike in detail in order to see if they could issue any other TINs.  No chance since I know the ADRs and TORUM possibly better than they do, so my bike has everything required.

I was then forced to walk my bike around 2kms to my workplace.  Having a mobility disability, and back issues meant that this caused me to endure a great deal of pain, pain that lasted all day and through the weekend.

I was told that I could have the matter heard in court or pay the fine.  I intended to take the matter to court.  Theoretically not paying should have had the matter sent to court.

2 October 2017

I received a SPER (State Penalties Enforcement Register) notice, advising that I had an outstanding fine, the original fine plus $67.45 administration.  Obviously someone screwed up.  I signed the form, ticking the box for a court hearing.

24 October 2017

Acknowledgment letter that I would be given a preliminary court hearing date.

23 November 2017

Letter advising of my court date on 23 January 2018.  Letter also comes with official complaint from the ticketing officer stating the basics of the complaint.

23 January 2018

Court date, I arrived first so I jumped the queue from 4 to number 1, that a tip if you want to be in and out quicker.  The prosecutor advised the process while waiting for the magistrate.  Basically guilty or not guilty, most are there because they are pleading not guilty.  This means being given a “Notice to Defendant”, a trial date, when your brief of evidence will be available, and bail to ensure you turn up for the trial date.  The Notice to Defendant is to ensure you know what you can ask for as if the prosecutor needs expert witnesses they need to be organised in advance, mostly for speeding fine contests.

In my case I can ask for the body cam footage and for the three officers to attend court for questioning over the matter.  This is my email to the prosecutor, two days later on 25 January 2018:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

WITHOUT PREJUDICE

Hi Mark,

Please let me know when the Brief of Evidence will be available for collection from the court, the indicated day was 5 February 2017 for the trial date of 15 February 2017, 9:00am.  All three officers were using body cameras so I expect that there will be three videos available, plus whatever other paperwork is necessary to be provided in the brief.  I would also like to know if it is standard practice for the officers issuing the ticket to be present on the trial day?  The Notice to Defendant – Traffic Matters information suggests this is the case.  I would like to question all three officers about matters that occurred on the day as I would personally like to understand their motives behind some of their actions towards me as I am sure the magistrate would also.

Thank you in advance.

As you can see out of the box I put him on notice that I was serious about this matter and I intended to vigorously defend the matter.

2 February 2018

I received his response a week later as follows:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

Hello,

The officer has asked me to withdraw the ticket as the court date clashes with his Commonwealth Games commitments. You can come to court on the 15th if you want or not.

Regards,

Mark XXXXXX

Senior Sergeant XXXX| Police Prosecution Corps

BRISBANE MAGISTRATES COURTS

Level 8, 40 Tank Street, Brisbane Q 4001

P: (07) 3099

F: (07) 3099

My Response:

RE: Evidence Brief and Query, Ticket No. XXXXXXXXX

WITHOUT PREJUDICE

Hi Mark,

Thanks for getting back to me.  In light of that I will not attend court and consider the matter closed.  Thanks for letting me know.

Now based on some feedback, I will have someone attend court on my behalf, my daughter as I do have a business appointment to attend to that was made after this matter was considered closed.  She will have my complete file including the correspondence from the prosecutor advising the matter was withdrawn to prevent him from reopening the matter in my absence.

Summary

As at 7 February 2018, the matter is closed, however I will update this summary in a week after the trial date has come and gone.

For those wondering, the words “without prejudice” on my emails mean that the prosecutor is unable to present that correspondence in court as evidence.  He however did not precede his email with those words so I should be able have his correspondence presented as evidence of the withdrawal of the matter.

Defense Summary

My defense was going to hinge on a number of matters.

Primarily, where any law of a state conflicts with a law of the commonwealth, the commonwealth law takes precedence.

First, the TGA defense of me riding the bike for transport and as a result a helmet is considered a medical device.  This would be further amplified by the TGA considering helmets as a medical device for the prescription of the drug Clobazam, they do not specify what the minimum requirement is for a helmet, only that one be used.

Second, that as a disabled person any device that I use to aid my mobility is considered to be a therapeutic device under the TGA as follows:

Therapeutic Goods Act 1989 Section 41 BD paragraph (1)(a)(ii) of said act which defines what a Medical Device is.

  1. any instrument, apparatus, appliance, material or other article (whether used alone or in combination, and including the software necessary for its proper application) intended, by the person under whose name it is or is to be supplied, to be used for human beings for the purpose of one or more of the following:

(ii) diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap

Third, that as I was making a choice to ride without a helmet, I undertook a strict risk assessment of the possible routes into the city from where I was parked, choosing the longer route as it was all off road (shared pathways), contained only 6 road crossings of which only one was an uncontrolled crossing.  Importantly there were only 3 driveway crossings on the city paths being traversed (none prior to the city).  The shorter route contained 17 road crossings of which less than half were controlled intersections.  Further to that there were in excess of 50 driveways to houses, businesses and car parks along the entire trip.  Each one of those a potential hazard.  Under a Hierarchy Of Controls (HOC) hazard reduction process, the first step is to always eliminate the hazard which I did through route choice.  PPE is always the last resort in a HOC process.  Since I had undertaken every possible step prior to PPE, I felt there was no risk to myself.

Fourth, under the Queensland Criminal Code, S22 (2), even if none of the above defenses apply, if you act in a manner where you truly believe you are not in contravention of the law even with knowledge of the applicable law, you cannot be found guilty of contravening the law.  Since I believe that under points One and Two above I was not in contravention of the law as commonwealth law applied I cannot be found guilty under state law, based on state law itself.

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