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.
50 thoughts on “Cyclist who broke motorist’s jaw cleared of assault – because of driver’s close pass”
Well…..what a brilliant
Well…..what a brilliant outcome haha
Yes, absolutely, hopefully
Yes, absolutely, hopefully this gives us all a free pass to batter belligerent pensioners lol
Don’t think this was some
Don’t think this was some frail old pensioner. He’s beefier than the cyclist.
Don’t think that post
Don’t think that post incident violence is the answer, although the story does not go into enough detail about the hotel car park. I suppose it is possible that File was lead to ‘apprehend immediate unlawful violence’ which in the UK would be a defence.
I don’t agree with that
I don’t agree with that verdict. He should have been found guilty of assault but with the mitigation of being in fear of his own safety. The driver should also have been found guilty of the close-pass just to balance it out.
The whole point of laws and courts is that we don’t have to enact justice with our fists and it shouldn’t be encouraged, especially against someone of that age.
The problem with that is that
The problem with that is that it would leave the motorist who did an extremely close pass / endangered the life of the rider with a driving conviction.
By contrast the rider, who responded only because of the dangerously close pass and subsequent confrontation by the motorist would have been left with a criminal conviction with the serious consequences on employment etc that go with that.
The thing is the response
The thing is the response wasn’t immediate, so there is always a risk of prosecution where it is post event. As HP says any sentence should take account of the close pass and subsequent confrontation.
Despite what the daily fail might have us believe, self defence in the UK is very much upheld by the law.
ex_terra wrote:
It was an inappropriate and unnecessary response, so the cyclist should bear the consequences of that. I would anticipate some kind of community service sentence, but I don’t know if that has a big effect on employment.
Certainly in the UK, I would
Certainly in the UK, I would argue it should come under self defence, which would mean not guilty.
In the UK the prosecution has to prove beyond reasonable doubt that it wasn’t. (And self defence can be preemptive).
The mail article shows the driver overtook dangerously close, while leaning on the horn, which shows it was intentional. Then stopped immediately around the corner (video skips a section, but you can see the same parked vehicle before and after, so it hasn’t gone far). When the cyclist stops and complains that they nearly killed them, the driver swears back about them blocking the road. The article also implies they approached the cyclist while doing so.
So I don’t think it is unreasonable for the cyclist to claim that they believed the driver intentionally threatened them with the car, then stopped to get out and attack them (having already proved willingness by overtake with horn) so self defence.
I think it depends on the
I think it depends on the dynamic between the two as to whether it was self defence or not. Personally, I don’t consider a 77 year old that’s out of his car to be a threat to my safety, but maybe a younger, very aggressive driver would be. Also, I reckon a quick shove to an older person would be likely to put them on the floor to give enough time to confiscate the car keys and thus provide protection.
I think you may find the poor
I think you may find the poor ickle pensioner was bigger and beefier than the cyclist.
imajez wrote:
Not as good in a fight though, it appears.
Probably didn’t think the
Probably didn’t think the cyclist had it “in him” to punch and would have been intimidated enough to back down. After all, they ride around in Lycra and that is a girls material.
qwerty360 wrote:
It is true that your scope for self-defence is very wide, and is judged on whether you take reasonable and proportionate action to defend yourself against the threat that you genuinely believe is presented.
It’s difficult to see here as the film has been edited, but it does seem that the rider approached the driver (in as much that they could have continued to ride – the altercation is at least 30s after the pass).
Doubt may be held over the idea that the rider was at any real risk anymore as the driver was out of his car, and, well, 30y older. [edit:having seen the photos I’ll retract that. I’d certainly not describe him as frail…..]
However – if the old boy had a weapon, swung a punch or the rider genuinely believed this was about to happen that could cover self-defence.
Surprise surprise, the Heil chose to give an incomplete account of the incident, trial or ruling….
The driver was a tool, possible close passed deliberately, and definitely should also have been prosecuted under driving legislation.
Note that the defence stated that the prosecution had become necessary in order to clear the defendant’s name.
I agree with HP. And I
I agree with HP. And I suspect the cyclist might not have been “deprived … of the power of self control” if the driver hadn’t been 77 years old.
However, the poor ickle
However, the poor ickle pensioner looked bigger and beefier than the cyclist.
The poor little pensioner
The poor little pensioner lost a large percentage of his weight, that is, muscle mass between incident and trial. I think he is a septagenerian of unusually anabolic powers.
Thanks, hadn’t seen that
Thanks, hadn’t seen that article, proven to be pure piffle.
In the UK a more appropriate
In the UK a more appropriate way for the court to record this might have been an “absolute discharge” – something where clearly there was an assault, but the mitigating circumstances were such that any punishment would be considered inappropriate.
The advantage of that is that then they do have a criminal record and if it turns out that they make a habit of this, a future sentencing could take that into account.
Quite possible that Mr File
Quite possible that Mr File put himself in the driver’s position and empathised the driver’s violence towards him.
I’m guessing that 77 years
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? 😉
Whatever the rights and
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.
Quote:
Another MacMichaelism?
Sriracha wrote:
I understand the calling out of the text, but can you explain why this is MacMichaelism?
When it comes to slightly
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.
I like the bit where the
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.
Just waiting for some of our
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 **
chrisonatrike wrote:
You rang, M’lord…..
No need for that vicious
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…
chrisonatrike wrote:
If you can’t wait then there’s this article – https://singlefile.org/retirees-jaw-broken-after-asking-pair-of-cyclists-to-ride-single-file/
Tom_77 wrote:
Fack me…. Apparently the author had a degree in journalism….
“he particularly enjoys
“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
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.
AlsoSomniloquism wrote:
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
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
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!
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
Driver has not been
Never happen in UK. More’s
Never happen in UK. More’s the pity.
Something doesn’t stack up
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
Fron the evidence the only thing that didn’t stack up – thankfully – were some cyclists.
HoarseMann wrote:
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
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’!
Tom_77 wrote:
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…
Jenova20 wrote:
How very 1950s of them…
Jenova20 wrote:
https://en.wikipedia.org/wiki/Gay_panic_defense#Australia
It’s been repealed, but surprisingly recently.
Tom_77 wrote:
Wow…Only 4 years ago…
At last – a judge with a
At last – a judge with a sense of justice and a close pass with a happy ending ?
Christopher TR1 wrote:
We need more judges like this.
You have a perverse idea of
You have a perverse idea of what a happy ending is, this is not one of them.