There have been a number of recent reports of increasing violence against NSW paramedics – see:
- Eamonn Duff, ‘Ambulance officers under attack: judges accused of failing paramedics’, SMH Online, 9 February 2015;
- Eamonn Duff, ‘“I thought I was about to die” – paramedics under attack’, SMH Online, 8 February 2015;
- Eamonn Duff, ‘Ambulance officers under attack’, SMH Online, 8 February 2015; and
- Lane Sainty and Ben Grubb, ‘‘George Street is an extremely dangerous place’: paramedics’, SMH Online, 2 February 2015.
What I am about to say does in no way condone violence toward paramedics but I do want to put the law in context, particularly as reported by channel 9. In the story that appeared on 8 February 2015 – ‘We are not just a uniform’: Sydney’s paramedics demand better protection from violent patients’ – it was said:
Amendments to the Health Services Act now provide paramedics with greater protection against physical, verbal and racial abuse, with offenders now facing up to five years jail.
My problem with that comment and many of the other suggestions is the idea that it is the law that will provide protection. In Kable v DPP (1995) 36 NSWLR 374, Mahoney JA said:
One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed. If it be clear to demonstration that A proposes tomorrow to murder B, the law does not authorise the arrest or detention of A to prevent him doing so. A may, of course, be watched. He may, if his intention becomes a threat or an attempt, be arrested to answer the charge that he has so threatened or attempted to murder. But he may not be arrested or detained merely because he intends murder… the fact that A firmly intends to murder or to do violence to B tomorrow does not provide a basis as such for the arrest and detention of A so as to prevent that violence being done.
That’s not exactly on point but is intended to demonstrate that the law is reactive, not proactive and that is the price we pay for us all to be at liberty. We can’t be arrested and detained for what we might do, but what we have done. That is at least the fundamental principle of the criminal law. Legislatures can move away from that but that is when they face criticism for example allowing detention without trial. If the state can start to lock people up because of what they might do, or because of what they think, then the liberty of all is at risk. In my book, Hayes and Eburn’s Criminal Law and Procedure in NSW (4th ed, Lexis/Nexis, 2013) (co-authored with Rod Howie and Paul Sattler), I argue (at p 12) that the principal role of the criminal law is not to protect us from criminals (as it’s very bad at that) but from the state.
The ineffectiveness of the criminal law in addressing the factors which keep the crime rate in our society more or less constant does not mean that the criminal law is ineffective in protecting the liberty of the citizen. The criminal law and the law of criminal procedure stand between the citizen and the state to ensure that the state (the police and the government) does not take action against, or impose a punishment on, a citizen except according to law. The law, including the criminal law, ‘provides a shield for individuals from arbitrary state action’.
… it is a fundamental tenet of our system of justice according to law that no person is to be found ‘guilty’ of a crime and subject to punishment unless that guilt is based upon the law. This principle has been handed down since at least 1215, when Magna Carta provided that:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
In the United States, the Fifth Amendment to the Constitution states:
No person shall be deprived of life, liberty, or property, without due process of law .
It is a fundamental principle that guilt or innocence is determined by law, not by moral outrage, likes or dislikes… The criminal law and the processes of the criminal courts stand between the state and the citizen to ensure that these rules are observed.
So let’s put that in context. The Health Services Act 1997 (NSW) s 67J says:
(1) A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.
(2) A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.
The first point to note is that the offence under both subsections only arises where a person intentionally obstructs the officer who is providing care to ‘another person or persons’, it does not apply to the patient. Many of the reports listed above refer to violence by the people being treated; they are not caught by these offences (though they may well be guilty of other offences).
Let us focus in more detail on s 67(2). To be guilty of this offence the accused must:
- Engage in an ‘act of violence’;
- with the intention of
- obstructing or
- hindering
- an ambulance officer who is
- providing or
- attempting to provide
- care to another person.
To be found guilty of the offence the Crown must prove all those elements (or one of them where they are divided by an ‘or’) and that level of proof must be ‘beyond reasonable doubt’. Subsection 67(1) also refers to ‘intentionally’. If one is acting with ‘intention’ then one is trying to achieve the objective, in this case of obstructing or hindering in the delivery of care to another person.
Ambulance officers get called to situations that can be the worst day of someone’s life. Equally they get called to all manner of incidents and events that arise because the people are ill or injured and those illness and injuries, mental and physical, self induced or otherwise, can affect their capacity to rationally form the relevant intention. They deal with all manner of people from the very sensible to those that would not be so described.
A person who is affected by alcohol, drugs, mental illness, developmental disability, the consequences of their illness or injury may well be violent but they may not know what they are doing or have the necessary intention. A person who is delusional and paranoid and thinks the ambulance officers are there to do harm, is not acting contrary to the law regardless of the consequences.
The criminal law does not punish the consequences but the mental state of the offender. A person who fails to pay due care and attention whilst driving and who is guilty of the offence of Dangerous driving occasioning death (maximum penalty 10 years) is considered less of a criminal than a person guilty of attempted murder (maximum penalty life imprisonment) even though the dangerous driver has caused death and the would be murderer did not. One is an negligent accident, the other a deliberate attempt at harm.
To return to the Health Services Act that provision first of all provides no protection because the acts in question have to happen before the Act has any application, that is it only applies after the paramedic has been assaulted. Further offenders do not generally engage in a cost benefit analysis where they decide what the penalty for assaulting a paramedic might be and consider whether or not it’s worth the price. Putting up the penalty makes no difference to an offender who doesn’t think about what the penalty might be or who can’t believe they’ll be subject to it because, in their world view, their actions are justified.
And that is the point I want to make, the claim ‘Amendments to the Health Services Act now provide paramedics with greater protection…’ is rubbish. The amendments mean that those convicted of that particular offence are subject to that maximum penalty. The reason that offence is there is about obstructing or hindering paramedics. Deliberate acts of violence could, and are, dealt with under other offences, such as assault, assault causing actual or grievous bodily harm, wounding with intent to wound etc.
That then brings up the question of penalty. First of all this is at the minor end of offences. As just noted the key to this offence is an intention to hinder or obstruct the paramedics in the care of another. If the allegation is that they paramedics were deliberately assaulted for other motives, or injured, or wounded, or their lives threatened, the police should bring charges under those other offences. If they don’t the court can’t sentence for those things, only for the offence charged.
One see’s lots of discussion on relevant ambulance and SES discussion pages about why people call them for things that are not an emergency (one doesn’t see that so much with fire brigades, I guess a fire is a fire). A leaking roof or a minor injury, particularly when caused by the caller’s own neglect or stupidity, may not be seen by the emergency services as an emergency as they deal with so much more. But for the caller it’s the biggest emergency in their life at that time. The same with the criminal law. For the person who’s been threatened or assaulted it’s the worst crime they’ve seen. For the magistrate who’s seen everything from ‘offensive language’ to horrific child sexual assault and murder, it’s one more of the lower end crimes.
When it comes to sentencing a court is required to have regard to issues of:
- specific deterrence – what will convey the message to this person not to do it again
- general deterrence – what will convey the message to the general public not to do something similar
- punishment and
- retribution.
The problem with general deterrence is most people who need to be deterred will never know what happened or why nor will they, when they go to commit an offence, think ‘gee the paper said the last person who did this got sent to gaol – so I’d better not do it’.
In sentencing a court has to take into account the offenders personal circumstances. A fine of $200 may be nothing to some, a huge amount to others. People are unlikely to go to gaol for a first offence because it is expensive, ineffective and increases rather than decreases the chances of reoffending. Alternatives are available because they’re more effective. People who enter a plea of guilty get a discount as they are acknowledging they did the wrong thing and saving the court and the state and the victim’s time and money. The sentencing process is very complex and whilst I can’t point to them, there have been surveys that report where people are given all the facts they are far less outraged by the sentence imposed than they were when they read about it in the paper.
Conclusion
That ambulance officers are exposed to a risk of injury is an unfortunate reality of their job. That they are exposed to deliberate violence is completely unacceptable, but not all injury is the result of deliberate violence. Physical contact by people affected by their illness or injury (including drug and alcohol overdose) will not be deliberate violence if the person is so affected that they don’t understand the situation they are in or are not acting with the prohibited intention or acting voluntarily. This is not a loophole or ‘Using alcohol or drugs as an excuse’ (Eamonn Duff, ‘Ambulance officers under attack: judges accused of failing paramedics’, SMH Online, 9 February 2015). If the person didn’t intend to assault the victim (paramedic or otherwise) then they’re not guilty of the offence.
If criminal law were a sufficient deterrent then it would have worked years ago, but neither the death penalty nor transportation to Australia has ever stopped crime. The issue is cultural and behavioural but relying on the law as the solution is to use the relevant example of relying on the ambulance at the bottom of the cliff rather than the fence at the top.
One of my favourite quotes comes from Tom Wolfe’s The Bonfire of the Vanities (1987, Random House, London). In that book the District Attorney (the DA) or what we would call the Crown Prosecutor is concerned about the fact that they only prosecute the poor, uneducated and underprivileged. He longs for the chance to prosecute the Great White Defendant. When thinking about those before the court he says (at p 111):
But the poor bastards behind the wire mesh barely deserved the term criminal, if by criminal you had in mind the romantic notion of someone who has a goal and seeks to achieve it through some desperate way outside the law. No, they were simpleminded incompetents, most of them, and they did unbelievably stupid, vile things.
Unfortunately the work of a paramedic brings them into contact with many ‘simpleminded incompetents´ and the consequences of the ‘unbelievably stupid, vile things’ that they have done and this in turn puts them at risk. Nothing I’ve said is meant to downplay that risk, the stress on the paramedics or the unacceptable nature of the conduct complained of. What it is meant to do, is put the law into context to expain why it is not the law that will stop that violence. It may see some people punished, after the event, but cannot actually protect paramedics from violence.
Australian Emergency Law 
Michael,
Thank you for the comprehensive information. Whilst slightly left field from your normal subjects, I was wondering based on some of the premises mentioned above, how can Federal Police arrest these latest 2 Sydney terrorists based on what they may have intended to do, when at the time of arrest they hadn’t done anything per say. Please don’t mistake my question as any type of support for these people, merely interested in the points of law having read your blog earlier.
Most criminal offences require two components. The ‘physical element’ and the ‘fault element’. The physical element is some action and the fault element is the necessary intention or knowledge. What these elements are vary with each offence. (There are also some offences that are ‘strict liability’ offences that is they don’t have a fault element, the Crown don’t have to prove what the accused knew or intended but they are the relatively low regulatory offences, such as traffic matters, not the sort of offences we are talking about here.)
For example, ‘assault’ is the application of force with the intention of applying that force. The physical element is touching someone, the fault element is intending to do so, rather than say an accident. To go back to the Health Services Act 1997 (NSW) s 67J(2) the physical element is ‘an act of violence’; the fault element is an intention to obstruct or hinder a paramedic who is treating or trying to treat someone else.
There are offences that capture people where not all the elements are present. Primarily these are attempt and conspiracy. A person who tries to commit a crime is as guilty as someone who does, but there must be an act that goes beyond mere preparation and shows a genuine attempt. Buying a gun with a clear desire to use it to kill someone is not attempted murder, but pointing it at the intended victim and pulling the trigger is, even if the plan fails because the gun misfires or because the offender is a terrible shot. A conspiracy is an agreement between two or more people to commit a crime. The mere agreement is sufficient but naturally hard to prove. Conspiracy is useful where a number of people are taking steps to prepare for a crime or where the crime is committed but no one person did everything required to be guilty. If the Crown can prove that all agreed and were working toward the crime then conspiracy may be helpful.
The difficulty with dealing with people before they commit a crime has led to legislatures creating new offences, many in the terrorism field. So now it is an offence to ‘possess things connected with a terrorist act’ (Criminal Code (Cth) s 101.4). Section 101.4(1) says:
The Crown has to prove that the person was in possession of a ‘thing’ and that ‘thing’ was to used in a terrorist act – that’s the physical element. The fault element is that the person ‘knew’ of that connection. It does not matter if the act never occurs or that the Crown cannot prove to a specific terrorist act that is intended (s 101.4(3)).
I don’t know what offence the people in question have been charged with as there are a number in the Criminal Code intended to deal with terrorism before it occurs. Nor do I make any comment on whether they are or are not guilty of the offences with which they have been charged or any other offence. The point here is to show that the principles discussed in my original post remain the same. An offence has its physical and fault elements and the Crown must prove them all, and prove them beyond reasonable doubt, before a person can be found guilty of the offence charged.
Shane, further at the risk of buying into current issues, the case of the Bali 9 raises these issues too. The father of one of the group was concerned that his son was going to Bali to be involved in the drug trade. He contacted a lawyer who had previously acted for the young man. The lawyer ‘requested that Rush be detained at Sydney airport and prevented from leaving Australia. He referred to Rush’s prior convictions. It was the case that Rush was on bail at the time. Myers went on that if the AFP could not detain Rush he should be stopped at his point of exit and be advised that the AFP were aware he was “up to no good”, that he would be watched in Bali and that it would be foolish for him to participate in illegal activity there’ (Rush v Commissioner of Police [2006] FCA 12, [14]). I have always been surprised that a lawyer would think that would work. I don’t know the facts but if all taht is being reported is a person’s suspicions that is no reason to detain anyone. No-one would want to be arrested or stopped from lawfully leaving the country because someone else reported a fear that the person might be intending to commit an offence. Equally the police did put a warning notice with relation to Rush’s passport as they were advised that he would be in breach of bail if he left the country but it was determined that ‘that there were no bail conditions preventing him leaving the country’ [21]. In the circumstances it would be quite wrong for the AFP to pull someone aside and warn them that they are being watched. So the AFP then notified their Indonesian counterparts of teh information received. At that point, it would seem, no offence had been committed in Australia so they couldn’t take action here, but I imagine the Australian community expects overseas law enforcement agencies to notify our police if they have information that suggests an offence may be planned here and equally our agencies cooperate with the law enforcement agencies of our neighbours.
The point I’m trying to make relates to teh discussion above. Rush and the other Bali 9 had committed no offences here so the AFP had no authority to detain them or even caution them. The alternative is we could all be arrested when someone reports to police ‘I think that person may be about to commit an offence’. Much more than that is needed to justify an arrest. As I say that a lawyer expected any other result continues to surprise me. The Federal Court also dismissed an action that the police acted unlawfully or negligently when they reported the matter to Indonesia, even though they know the accused may face the death penalty (Rush v Commissioner of Police [2006] FCA 12).
Do we need special assault laws for paramedics (or police, teachers, social workers or any other group) at all, surely assault is assault, no matter who is assaulted? It’s not OK to assault anyone so why is a special law required at all?
A good question that I can offer no answer to.