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Statue of Justice, Old Bailey (licensed CC BY 2.0 on Flickr by Ronnie Macdonald).jpgCyclist who broke motorist’s jaw cleared of assault – because of driver’s close pass
A cyclist who punched a motorist has been cleared of assault, with the magistrate trying the case saying that the driver’s close pass on the rider had “deprived the defendant of the power of self-control.”
David File, aged 47, had pleaded not guilty to assaulting Graeme Gibb, 77, in a car park in Queensland’s Gold Coast in August last year, reports Mail Online.
The court was shown video footage which showed Mr Gibb, driving a Pontiac Firebird Trans Am, overtaking Mr File and the friend with whom he was driving with just 20cm to spare.
Under Queensland law, he should have given the cyclists at least 1 metre of room on the road where it happened.
The driver then stopped in a hotel car park, where he confronted the riders, shouting “What's the matter with you pricks?”
Mr File replied, “You nearly hit me,” then punched the motorist, breaking his jaw.
He then grabbed the car keys and threw them. They landed on the roof of a nearby off-licence.
Mr File turned himself into police several days after the incident after a photo of him went viral, and was charged with serious assault.
Referring to the close pass on the cyclists, Magistrate Kerry Magee said that she was “satisfied that that unlawful act frightened, alarmed and unnerved” Mr File.
“I find that this conduct deprived the defendant of the power of self-control.
“I accept that he was significantly shaken as a result when minutes later he has sought to confront” the driver, whom she said had “demonstrated no insight at all into the dangerousness of his behaviour.”
Mr File’s lawyer, Troy Smith, said after the hearing: “We knew from the outset this was a matter that had to be contested to clear Mr File's name.
“We knew from the outset that he was innocent. Mr File can now move on with his life and put this all behind them,” he added.
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.
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50 comments
At last - a judge with a sense of justice and a close pass with a happy ending 😃
We need more judges like this.
You have a perverse idea of what a happy ending is, this is not one of them.
Something doesn't stack up here. Loss of control (or provocation) can only be used as a mitigation in murder charges. Even then, it will only result in the charge being downgraded to manslaughter.
But you can claim self-defence (which can be pre-emptive), which if upheld, means you are not guilty of assault (it's perfectly legal to defend yourself, no crime committed).
I suspect in this case, the previous violent actions of the driver behind the wheel and his verbal abuse (plus he looks to be quite close and pointing with an outstretched arm) made a pre-emtive self defence strike reasonable in the view of the court.
It shouldn't be reported as a loss of control, more like a fear of imminent violence.
Fron the evidence the only thing that didn't stack up - thankfully - were some cyclists.
I think the law in Australia is different. I found this:
"A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool.
Thus provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm."
Maybe Australians punch each other a lot and they need a specific law to cover it?
Good find. Does seem that this is a thing in some parts of Aus.
edit: just read the single file link - he looks like Charlie Mullins! That really ought to be provocation in UK law, the 'Mullins Defence'!
Unless i'm mistaken I believe Australia still has gay panic laws on the books too: Allowing people to blatantly murder gay people and get away with it if the person claims they were traumatised by being near a gay person, and lost all self control...
How very 1950s of them...
https://en.wikipedia.org/wiki/Gay_panic_defense#Australia
It's been repealed, but surprisingly recently.
Wow...Only 4 years ago...
Never happen in UK. More's the pity.
Just waiting for some of our more controversial commenters to find this...
To be honest a) Australia and b) time after the "cycle and car" bit so I don't care much.
I don't in general like the "she shoved you, so you can hit her" approach to justice even if it's in the cyclist's favour. But again this one is apparently more like (something happened and then a bit later) two people had a confrontation in a car park and one hit the other.
** EDIT I see Brooksby said that anyway **
You rang, M'lord.....
No need for that vicious attack! I was just here for a bit of peace and quiet. Please don't hit me. Ow!
Sorry - I'd left victim mode on there...
If you can't wait then there's this article - https://singlefile.org/retirees-jaw-broken-after-asking-pair-of-cyclists...
Fack me.... Apparently the author had a degree in journalism....
"he particularly enjoys investigative journalism along with a strong interest in giving a voice to the less fortunate"
Oh yes! Those so less fortunate, their Firebird doesn't have a strobing red light in the 'hood' and drive itself.
Trouble is, anywhere else - even in the UK - that sort of group would get laughed out. In Oz, they are probably given a seat at the road safety table.
I had a quick look at some of his other efforts and either he is a great satirist of right wing anti cyclist haters, or he thinks "London bus found on the moon" is the kind of journalism that happens everywhere and should have won a pulitzer. Sadly I think it is the latter.
Nope it's a third reason. He's an ex club cyclist who got booted out of various Aussie cycling groups for being a jerk. He now spends his time trashing cycling because he's...well a jerk.
Oh, is that the guy who was covered in the long article by, I think Bike Radar, where they were posting lots of rubbish on twitter and stuff. Or just another one of similar history.
Seems like one or two of the posters on here now have a space to host their proper opinions, especially as half the stuff they post is fantasty.
That's a slightly different spin on the story, and printed before Mr File had handed himself in. Very quick to the papers!
Only in Oz!
I would venture to say that the outcome was wrong here. The driver should certainly have been prosecuted - was he? No word on that it seems.
But I'm afraid that being close passed does not "deprive the power of self control", especially some distance later in a car park.
There was some further provocation, granted - but at that stage unless the driver were threatening or intimating violence - which the judge's comments do not suggest - then it shouldn't be OK resort to violence in a verbal altercation.
That's just "might is right". The cyclist should have been afforded restitution via due process of law, not via their own capacity and propensity for violence.
To those who no doubt get a visceral thrill from the notion of a dangerous & arrogant t**t of a driver getting punched out, please reflect that this outcome provides zero incentive for other drivers to alter their behaviour around cyclists. It appears the driver suffered no legal consequence for their actions, and the cyclist was the one who had to endure prosecution and court, even if they were ultimately acquitted
I like the bit where the driver says "What's the matter with you pricks" Mr File replied, “You nearly hit me,” then punched the motorist, breaking his jaw."
The amount of times a c*nt in a car/van/lorry has done something dangerous to me, and when I point it out, they get all aggressive, like I'm the one in the wrong.
Another MacMichaelism?
I understand the calling out of the text, but can you explain why this is MacMichaelism?
When it comes to slightly unfortunate word substitutions (as opposed to simple fat-fingered typos), the author seems to have a bountiful gift. It tickles me somewhat.
Whatever the rights and wrongs of this case, it does at least surely suggest that shouting an immediate expletive when put in danger by a motorist is not unreasonable, whatever a certin troll might think.
I'm guessing that 77 years old Mr Gibb may have watched 'Smokey and the Bandit' one too many times, driving his TransAm like that...
I do agree with hawkinspeter below - Mr File had clearly committed an offence (you're not allowed to punch someone, whatever your justification [edit] and especially when it was 'later', not at the time of the close pass so not sure that 'heat of the moment' even applies) but should have been given a total slap on the wrist as his sentence.
And finally - Australians, eh?
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