This question arises from:
“… a recent [NSW] RFS leadership course [where] the problem of what I will call ˜inadvertent discovery” was raised. The scenario is that the RFS responds to a situation legally and whilst there discovers evidence of illegal activity.
Can they report that activity to authorities?”
Can they? In the right circumstances, they must! I’ll come back to that, but first a trans-pacific digression.
This is a much bigger issue in the United States where the 4th Amendment to the US Constitution (part of the US Bill of Rights) says ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…’ There are exceptions to the rule requiring a law enforcement officer to first obtain a warrant prior to commencing a search (see J. Curtis Varone, Legal Considerations for Fire and Emergency Services (2007, Thomson) pp 150-158). One of the exceptions is the ‘exigent circumstances’ rule – that is a warrant is not required in circumstances where requiring police to obtain a warrant ‘would have real, immediate, and serious consequences’ (Varone, p 153).
The US Supreme Court considered the issue in the context of firefighters in Michigan v Tyler 436 US 499 (1978). The facts relevant to our discussion were that the local fire department responded to a shop fire at about 2am. As they were extinguishing the fire, the fire fighters discovered plastic containers of flammable liquid and this was reported to the fire chief who entered the building to examine the containers. The fire chief, in turn, notified police. A detective took several pictures but ceased further investigation because of the smoke and steam. By 4 a.m., the fire had been extinguished, and the firefighters departed. There were other facts, important for the decision, about the subsequent actions by police but they need not concern us.
The first finding by the Court was that it didn’t matter if the search was conducted by a fire fighter or a police officer. Stewart J (on behalf of the Court) said that the:
“basic purpose of this Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”
The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection… [Even so these searches] are thus clearly within the protection of the Fourth Amendment.
The shop owner was entitled to the protection of the 4th amendment however
… warrantless entry … may be legal when there is compelling need for official action and no time to secure a warrant…
A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry “reasonable.” Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 465-466. Thus, the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler’s Auction, nor by Chief See’s removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.
So what – Australia does not have a Bill of Rights and the 4th amendment does not apply here. True enough, but there is still common law rights that protect private property. Justice Kirby said that even though ‘Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution’ the rules governing the need for search warrants is reflected both in Australian statute law and judicial interpretation of those laws (New South Wales v Corbett  HCA 32, ). In an earlier post (Authority to enter private property for a hazard reduction burn (July 9, 2016)) I quoted Lord Denning (an English judge) who in Southam v Smout  1 QB 308 at 320 said:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.
As a general rule police and ‘all the forces of the Crown’ (which would include the RFS) cannot enter private property without a warrant or some other lawful excuse (see Authority to enter private property for a hazard reduction burn (July 9, 2016)). Today most, if not all, fire brigades have legislation to allow them to enter premises to:
- Fight a fire – see for example, Rural Fires Act 1997 (NSW) s 23 ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’; and
- Investigate the cause of a fire – Rural Fires Act 1997 (NSW) s 33B ‘The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out’. Note however that this power does not extend to ‘land used only for residential purposes’. To enter residential land a warrant is required – ss 33B(3) and 33C.
As in the United States there is also a common law power to enter premises, without a warrant in ‘exigent circumstances’. In Kuru v State of New South Wales  HCA 26 the High Court said:
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle.
Once the firefighters are lawfully ‘on scene’ they can’t help observing that which is in plain sight or even hidden if they reveal it in the course of their duties. Having observed material that reveals criminal conduct they can report it to police. Whether they should or not is another matter. One should consider issues such as the seriousness of the offence and the potential impact it will have on the relevant emergency service. For example if what is detected is that the homeowner has been consuming a prohibited drug, would it serve the public interest if that was reported to police? People would be less willing to trust the fire service (or the ambulance service and paramedics will be exposed to that sort of conduct more than fire fighters) if they get ‘dobbed in’ for these sort of offences. On the other hand, fire fighters may observe evidence of arson, child sexual assault, child pornography, murder or attempted murder, sexual servitude, significant drug cultivation or manufacturing or the like. These are serious offences that should be reported to police.
Further, in New South Wales, the Crimes Act 1900 (NSW) s 316 says:
If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
A “Serious indictable offence” is an offence with a maximum penalty of 5 or more years’ imprisonment (s 4).
Section 316 is a complex way of saying that if a person (in our context, a fire fighter) has information that would assist police to identify and convict an offender, then that person commits an offence if they do not give that information to police. It follows that if the RFS responds to a situation legally and whilst there fire fighters discover evidence of a “Serious indictable offence” then there is an actual obligation to report that matter to police.
The simple answer to the question ‘[if] the RFS responds to a situation legally and whilst there discovers evidence of illegal activity[, c]an they report that activity to authorities?’ is YES.
Further if the evidence suggests a “Serious indictable offence” the members may commit an offence if they fail to report it.
For related posts see:
- Paramedics and Patient Confidentiality number 2 (July 23, 2015); and
- Potential role conflict – NSW Police officer as SES volunteer (amended) (December 3, 2015).
Been there, done that. Whilst attending to one house, observed the neighbours plantation- called Police and they handled it from there (Hard not to look over a fence when you’re on a roof!)
On Facebook I was asked:
The same principles apply in Victoria. So the answer is, as it is in NSW, is that CFA can report illegal activity that they discover if they are responding legally to a fire or other emergency. Do they have to? I’ve quoted the Crimes Act 1900 (NSW) s 316, above. The equivalent provision in Victoria is the Crimes Act 1958 (Vic) s 326 which says that any person who has ‘information which might be of material assistance in securing the prosecution or conviction of an offender’ for a serious indictable offence and who ‘accepts any benefit for not disclosing that information’ is guilty of an offence with a maximum penalty of 1 year imprisonment.
The difference is pretty clear. In NSW the offence is committed if you have the information and fail to disclose it without ‘reasonable excuse’. In Victoria the offence is committed if you have the information and ‘accept a benefit’ – a bribe if you like – to withhold the information. Clearly in the scenario described there is no benefit being offered to the CFA fire fighters so no offence under the Victorian Crimes Act. So in the scenario given it would appear that no offence is committed by failing to report the matter to police.
Let me return to NSW and assume the same facts. Remember that s 316 of the NSW Act says a person commits an offence if they have ‘information which might be of material assistance in securing the apprehension … prosecution or conviction of the offender’ and they fail to disclose that ‘without reasonable excuse’. What’s a reasonable excuse would should it ever be an issue, be a matter for the judge or jury. But before it gets before a court the police and then the Director of Public Prosecutions have to consider the matter.
They, like everyone, would no doubt consider the matter of ‘scale’. There are some offences where everyone would expect that it is reported and they can be classed as crimes of abuse of another person. For other offences, things like maintaining the community trust in the agencies and, as my correspondent has raised, trying to build trust within communities to allow the fire service to perform its tasks and protect that community. We all know of communities where the reputations are that there are lots of people there who don’t want to be found or the accepted community behaviour is not strictly according to law. If fire and emergency services were ringing police each time they went to a job in those communities, they would cease to be an effective agency very quickly.
So in my view it becomes an issue of scale – where you see the crime on the line of seriousness. No doubt if you found evidence that a property was being used as a studio for the production of child pornography or a massive drug lab, I would suppose everyone would think it’s appropriate to report the matter to police. If there is a single dope plant on the veranda, or a bong in the lounge room, probably no-one would want to report that. Between those two extremes is everything else.
If there are ‘weed crops’ everyone has to balance their subjective view of how they see that crime – do they think it’s a serious egregious offence or not – balanced against the perceived harm to the agency and to themselves. Reporting the matter to the police will bring its own angst if you then have to give a statement and later appear in court to give evidence. Assume you make the call not to report it.
If the police didn’t know about the weed crops before, they’re not going to know about them now so the chances of being prosecuted are low. But let’s assume that somehow the police do discover the crops and become aware that the CFA/RFS had been there two days before. If the police wanted to prosecute someone they would have to prove, beyond reasonable doubt, that a particular firefighter saw the crops, knew that they were ‘weed’ and not something innocent (and not merely they thought it might be, but they knew that what they saw was relevant evidence).
The police also need to consider the cost/benefit. They want to maintain trust with the fire services and the communities. They may well take the view that in some communities on the NSW North Coast that arresting the fire fighters every time they don’t report a dope crop that soon they’ll be no firefighters! So they too have to consider the ‘scale’ of the alleged crime as well as they could actually prove what they need to prove. And then the DPP also gets to consider the issue.
I have no doubt that balancing the seriousness of the offences against issues of maintaining the community’s trust and recognising that fire fighters volunteer to fight fires, not to be the eyes and ears of the police, would all weigh on a police officer, the DPP and a judge when considering whether there was a ‘reasonable excuse’ not to disclose the information.
Posted on behalf of a correspondent:
Re: Discovering crime during an emergency response
I am a member of VICSES.
We were doing a search for a missing person in a small rural town, the missing person suffering from a range of conditions including dementia. In searching a property, I came across some plants. I chose not to report these as it would be obvious where the information would have come from and I did not want VICSES to be seen as de-facto police.
Upon returning to the police station, the first question that the Senior Sergeant asked (in a light-hearted manner) was did we find any pot plants? He then told stories of how things had changed since he first joined the police force regarding drug arrests. Without saying it directly, he gave the impression that he was not interested in knowing of any plants grown for personal use, but wanted us to focus on find the missing person.
For a discussion on a recent US case on this point – see http://www.firelawblog.com/2016/10/18/can-a-firefighter-violate-a-persons-fourth-amendment-rights/