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News / Road Safety

Family pleads for Ben’s death not to be in vain

Campaign seeks to remove loophole allowing drivers to avoid a blood test

A permanent memorial to Ben Fryer from his mother and sister has been installed near the site where he was killed.

Mark Phillips

THE grieving family of a Brunswick West man who died when he was hit by a truck in 2022 want the Victorian Government to remove a loophole which allowed the drug affected driver to reduce his criminal liability.

On January 22, tow truck driver Mendo Vrskovski pleaded guilty in the Melbourne Magistrates’ Court to a charge of refusing to undergo a blood test following the collision that killed Benjamin Fryer in 2022, bringing to an end a long ordeal for Fryer’s family.

Vrskovski is already serving a three-year term in jail over the death of the 43-year-old cyclist after he pleaded guilty in November in the County Court to dangerous driving causing death.

Fryer’s family say Vrskovski’s refusal of the blood test, following an earlier oral test that detected the presence of methylamphetamines in his system, allowed him to avoid the more serious charge of culpable driving, for which he would have faced up to 20 years in jail.

On the charge of refusing a blood test, he was sentenced to one month of imprisonment to be served concurrently with his other sentence, along with a $600 fine. This means he will receive no extra jail time, even though Magistrate Carrie O’Shea said refusing a blood test after a fatal accident was a serious offence.

The family are calling for changes to Victorian laws that would substantially increase the penalties for refusing a blood test after a fatal road accident. They believe this would act as a deterrent in future cases similar to Fryer’s, and would have allowed the police to obtain an admissible blood sample from Vrskovski which may have shown his driving was impaired by drugs.

Fryer’s family also believe a refusal to undergo a blood test should be considered by a court as an admission of wrongdoing, which would have enabled a charge of culpable driving to be sustained in Vrskovski’s case.

Brunswick MP Tim Read has agreed to take up the case directly with the state Attorney-General.

‘Deal of the century’

Benjamin Fryer’s older brother, Nicholas Granger, said police and prosecutors told the family that refusing to take a blood test was a loophole that was frequently used by drivers involved in motor accidents that were fatal or caused serious injury and resulted in lesser charges.

He said a minor penalty for refusing a blood test was “the deal of the century” if it meant avoiding a longer jail sentence.

“Victorian Police have advised us they now have multiple instances of this being done by offenders, who by refusing the mandated blood testing request ensure that the level of drugs/alcohol in their system can never be established and thus is unprovable as a factor in a court case,” Granger said.

“Thus only lesser charges can be brought to bear.

“This was the exact case in the death of my brother … We think this goes against the spirit of the laws and the reasonable expectations of the Victorian people so we are trying to ensure this does not happen to other families in the future.”

Read wrote on behalf of Fryer’s family to then Attorney-General Jaclyn Symes in December to ask for action to be taken to reform the legal loophole.

“It does seem there’s a clear inconsistency that we should not be rewarding people for refusing a blood test,” Read said.

“I’m not convinced that a longer period in jail will turn someone into a better person, but I think this is an inconsistency that deserves sorting out.”

A state government spokesperson said criminal laws were reviewed regularly to make sure they were fit for purpose but it would be inappropriate to comment on independent determinations made by the courts such as the Vrskovski case.

“There is simply no place on our roads for drug driving – it has life changing consequences, and we urge all road users to think their fellow drivers every time they get behind the wheel,” they said.

“Police are out in force across the state targeting dangerous and drug drivers to ensure their stopped in their tracks and feel the full force of the law.”

Ben Fryer has been described by his family as a gentle soul. Photo: supplied

Ben Fryer had been enjoying an afternoon bike ride on a day off from his job at a Dan Murphy’s store when the truck being driven by Vrskovski failed to give way at the intersection of Brearley Parade and Melville Road in Pascoe Vale on April 12, 2022. The cyclist was dragged several metres under the truck before it stopped and died at the scene.

Police conducted an oral swab at the scene of the collision that detected methylamphetamines, but at Fawkner police station later that day Vrskovski refused a blood test, preventing police from determining the level of the drug in his system and whether it had impaired his driving.

This led to police charging Vrskovski with the lesser offence of dangerous driving causing death, a decision later reaffirmed by the Office of Public Prosecutions.

When Vrskovksi pleaded guilty in the County Court in November, no evidence was presented either about the oral test or the refusal to take a blood test. Vrskovski told police he had not seen Fryer before the collision and initially thought he had hit a traffic island. Vrskovski was sentenced to three years in jail with a non-parole period of 18 months, meaning he could be free by mid-2026.

Family ‘shattered’ by tragedy

Nicholas Granger said the family would forever be haunted by the violent death of his younger brother.

“This has shattered our family,” Granger said.

“My mother is just a shell of herself … Now she’s a broken women, she’s contemplated suicide. She’s never been the same, she never considered he [Ben] would be gone.”

Ben Fryer grew up in Lismore and struggled in childhood with serious physical and developmental difficulties.

Granger said Ben moved to Melbourne about a decade ago to “make a fresh start” and to be closer to his sister. Living in Brunswick West, regularly rode his bike for recreation and for exercise.

“He had development issues from an early age and learning difficulties and physical challenges but he was your classic happy-go-lucky guy,” Granger said.

“He didn’t look at the world like we would look at it, he wasn’t cynical, and he would do things I would chastise him for like give money to a homeless person when he hardly had a dollar himself … Ben was just really nice.”

He added that because of Ben’s health issues when he was a child, their mother had been very protective of him.

“He was a country kid from NSW, but he loved everything about Melbourne, it was his happy place… He spoke to mum that very morning and used to send her a text every day telling her how life was going. She doted on him.” 

The family has installed a permanent memorial to Ben in Brearley Parade, near the site of the collision that killed him.

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