From the Age. The curious case of a cyclist's life destroyed


Dorfus Dippintush


12th Sept 07

A VICTORIAN judge has accused the state's Transport Accident Commission
and the police major collision investigation unit of omitting evidence
and trying to destroy the case of a cyclist who sought compensation
after being rendered quadriplegic in a mysterious accident.

In a decision handed down on August 31, Judge John Bowman, the acting
president of the Victorian Civil and Administrative Tribunal, found in
favour of a claim by 23-year-old cyclist Jay Cracknell, of Mooroolbark,
and accused the TAC of adopting a "win-at-all-costs" attitude and of
improper conduct in the way it fought the claim.

He also called the police investigation inadequate and sub-standard. He
said he was stunned to learn that police never asked for Mr Cracknell's
version of what happened. He criticised an officer who gave evidence,
saying "his credit did not emerge unscathed".

"It seems to me to verge on the staggering that an accident of
sufficient gravity to warrant the attendance of the major collision
investigation unit would occur — it being an accident of sufficient
severity to render a young man a quadriplegic, also being an accident
occurring by the edge of an important road and with certain peculiar
surrounding circumstances — and yet no member of the police force has
interviewed the victim," Judge Bowman said.

The bungled handling of the case has triggered an internal review by the
TAC of its procedures for handling claims and dealing with litigation
and compensation.

But Victoria Police's Assistant Commissioner for traffic, Noel Ashby,
rejected the criticism.

"We have full confidence in the manner in which the investigation was
conducted," Mr Ashby said.

"All decisions made were based on well-established and tested methods,
and while the findings presented in the hearing were based on the civil
burden of proof, police investigations are conducted to the highest
standard of beyond reasonable doubt."

Mr Cracknell was found on a nature strip in Manchester Road,
Mooroolbark, early on May 28, 2005, laid out straight, with his bicycle
leaning upright against a nearby fence.

He had a blood-alcohol level of more than 0.2, but he later insisted
that he saw headlights behind him just before the accident.

Evidence about an arc of fresh tyre marks imprinted in grass close to
where Mr Cracknell fell was given to the TAC and police officers. But it
did not go to the TAC's independent investigator, David Axup, who
nevertheless concluded it was "a distinct probability" that a vehicle
was involved.

The TAC, however, denied liability and suggested Mr Cracknell lost
control of his mountain bike. Mr Cracknell took his claim to VCAT in May.

The TAC's initial file of evidence to VCAT also omitted any mention of
the tyre marks. The TAC apologised to the judge during the case, and
rectified it.

But a day later, a witness testified about the tyre marks, undermining a
statement by MCIU officer Sergeant Colin Schmidt. He swore another
statement at the TAC's request, but the judge said the presentation of
that statement looked like a "desperate attempt" to destroy the witness'
vital evidence.

Judge Bowman said the TAC's exclusion of crucial material "makes me feel
decidedly uneasy".

He said there was overwhelming evidence that a vehicle forced or pursued
Mr Cracknell off the road, and that someone unknown tried to "reorganise
the scene of the accident".

"The subsequent investigation by the major collision investigation unit
was inadequate," the judge said.

The TAC said it would not appeal. Mr Cracknell plans to use any
compensation to employ a full-time carer, buy a house and refit it for
his needs.

"I just felt like the TAC were holding out on me," he told The Age.

Mr Cracknell's sister, Taryn Hinton, wants police to reopen the
investigation. "Someone did this to Jay, and that someone should be made
accountable for what they did," she said.

TAC spokeswoman Anna Chalko said the commission "deeply regretted" that
material was initially omitted.

She denied that the TAC harboured "a win-at-all-costs" attitude and that
it deliberately attempted to withhold evidence.

"The TAC focus is to work closely with Jay and his family to get the
medical treatment and support services he needs and for which he is
entitled to."