Paramedics are exposed to a high risk of physical violence but as a recent case from Queensland shows, just because a person has been hit, it does not mean that the person who struck them is guilty of assault:
- Kate McKenna, ‘Woman found not guilty of assaulting ambulance officers due to head injury’ The Courier-Mail (online) August 11, 2017.
- ‘Woman cleared for punching Qld paramedic’, brisbanetimes.com.au, August 12 2017.
Queensland has a Criminal Code with the idea (at least in theory) that one can look to the Code to find all one needs to know of the relevant law. Relevantly, an assault occurs when a person ‘… strikes, touches, or moves, or otherwise applies force of any kind to, the person of another … without the other person’s consent…’ (Criminal Code 1899 (Qld) s 245). Prima facie that is what happened here, Ms Hart ‘did strike and scratch paramedic Julz Raven and hit a male critical care paramedic in the face, dislodging his glasses’. But there’s more to it than that.
Under the Queensland code ‘… a person is not criminally responsible for— (a) an act or omission that occurs independently of the exercise of the person’s will …’ (s 23). Further, ‘A person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist’ (s 24). To put s 24 in plain English, if you have an honest and reasonable belief in facts, your criminality is to be judged as if those facts were true. We’ll come back to that.
Similar rules apply in states that rely on the common law rather than a ‘code’. Under common law assault is the intended use of unlawful force (Fagan v Commissioner of Metropolitan Police  1 QB 439) but it must be a voluntary act. And there is a defence of mistake – an honest and reasonable belief in facts which if true would make the act innocent – Hayes and Eburn’s Criminal Law and Procedure in NSW (5th Ed, Lexis/Nexis, 2016) pp 59-70.
The problem for paramedics is that they are dealing with people on the worst day of their lives. They may be affected by their injuries (self-induced or otherwise) or by mental illness. They may strike out, but that doesn’t make them guilty of assault.
In this case it’s reported that the defendant
… recalls going to the bathroom, and then waking up to a group of people trying to put her in a van,” Ms Daley said.
“She was scared and reacted by striking someone, flailing about, and screaming, but didn’t realise the people were paramedics.”
One might think that this was a willed act. An unwilled act may a situation where a person is striking out but is in effect unconscious eg a person fitting. For example following a motor cycle accident in 2007, I’m told I was quite aggressive to paramedics and hospital staff but that was not an act of will but the product, I’m told, of head injury and hypoxia. And after regaining consciousness I certainly didn’t know where I was, or who the nurses were for some time – it all felt real at the time and still does even though I now know my memories are fallible – they didn’t really leave me in the tea room, and my room wasn’t on fire, but I sure thought those things were true at the time.
The aim of the criminal law is not to affirm the virtue of the victim, but to determine the blameworthiness of the accused. A person who is being forced into a van is entitled to defend themselves. If it turns out that they were wrong about what was going on, but honestly believed that this is what is happening, then they are entitled be judged as if those facts were true. One might think it’s unlikely that she would have that belief but if you recall that she was roused after 40 minutes and that she may have had a head injury then it more plausible that she didn’t understand what was going on.
The image of justice is a woman holding scales and wearing a blindfold. She hears the evidence for both views (in this case she intentionally struck the paramedics knowing they were paramedics v the evidence that it wasn’t intentional and mistaken) and makes a call on the evidence without regard to who is in the scales. That is the fact that the paramedic was a victim, and that as a community we value paramedics or that paramedics think the law should ‘protect’ them is irrelevant. Paramedics’ needs to be protected from assault, but people need to be protected from the state seeking to punish them as an example, or in order to be seen to support paramedics, rather than because they are guilty of an offence. To ensure that only the guilty – not just the unpopular – are punished, the law requires that the Crown prove its case ‘beyond reasonable doubt’.
In this case the Magistrate found ‘that the prosecution has not ruled out that the defendant’s conduct in committing the assault was an unwilled act …” and so she was entitled to an acquittal.
The problem with announcing a change in the law or tougher sentences after unpopular verdicts is that the MPs and those that call for change fail to acknowledge that they are not going to achieve anything. Tougher sentences aren’t going to influence the mentally ill, the brain injured or the intoxicated who don’t know they are ‘flailing about’ or who honestly think they are being abducted. And saying ‘we’ll create a new law to particularly target people who assault paramedics because this person got acquitted’ won’t help if the person didn’t actually assault the paramedic. Telling paramedics or others that ‘we’ll protect you by changing the law’ is to offer false hope.
The criminal law is a very poor tool to reduce crime. By definition it only comes into play after the crime has been committed.
For related posts see:
- Responding to calls for mandatory sentencing (April 3, 2016); and
- Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 4 (October 14, 2015) and see there the links to parts 1, 2 and 3.
Don’t start me on ‘patient rights’ for Mental Health patient.
Patients – You have the right to XYZ …. ( and release from criminal action whilst an inpatient ). Tou will not be responsible for assaulting staff.
Staff – You have the right to remain silent ….
It’s not what you’ve done, it’s who you know. When your mum’s a legal academic with contacts in the profession you can do pretty much what you want with impunity, but hasn’t it always been that way.
I don’t understand why you think her mother’s profession was relevant or would have influenced any tribunal. Do you not think that it was the law, and the legal issues discussed in the post that determined the Magistrate’s decision?