The Ambulance Services Act 1991 (Qld) s 46 says ‘A person must not wilfully obstruct or hinder any person acting under the authority of this Act’. The maximum penalty is a fine of 16 penalty units. (In Queensland a penalty unit is $133.45 (Penalties and Sentences Regulation 2015 (Qld) r 3). That means the maximum penalty for this offence is a fine of $133.45 x 16 or $2135.20).

On 14 May 2018 Mr Gebicki was convicted of this offence. He appealed to the District Court (Gebicki v Commissioner of Police [2019] QDC 108). The appeal was heard by His Honour Devereaux SC DCJ. His Honour (at [3]-[4]) set out the evidence of the two paramedics involved.

Queensland Ambulance Service ambulance officer, Mr Thompson, gave evidence that [on 27 September 2017] he and his partner, Ms Bayntum, responded to a call to help the appellant’s wife, who was 36 years old and pregnant. They drove to the appellant’s property at Mount Perry. Ms Bayntum, who was the designated treating officer, decided the patient should be taken to hospital. The appellant’s child seemed to the officers to be in such a poor state of health that she, too, should be taken to the hospital. At talk of getting a bag ready for the child, the appellant said, “nobody’s leaving without me.” He grabbed a CB radio and spoke into it, “Lock the gates. Secure the premises, nobody is to enter or exit.” The ambulance officers put the mother and daughter into their vehicle. Mr Thompson drove towards the gate but found it locked with two bike locks. An elderly woman, the appellant’s mother, came out of a makeshift house at the top of the driveway. She ignored his demand that she open the gate. He took a bolt cutter and cut through both locks. The ambulance officers took the patients to a hospital at Bundaberg.

Ms Bayntum gave evidence to similar effect…

The magistrate accepted that the two paramedics were acting under the authority of the Ambulance Services Act, that the gate was locked and was locked as a result of Mr Grecki’s command and that the officers were thereby hindered in their duty.

At the appeal, the appellant sought to introduce new evidence in the form of bodycam video from Acting Senior Constable Moxley taken on the 28th September. The appellant argued that the footage did not show the officer taking a photo of the gates as he claimed in evidence. Rather the photo that the officer produced was taken on 3 October. His Honour refused leave to allow the appellant to rely on the video. At [15] the judge said:

The thrust of the appellant’s attack was that the prosecution did not have sufficient evidence of the charge because it could not be proved that the locks were cut. Ambulance officer Thompson swore to cutting the locks. The appellant did not put to Moxley that the locks were not cut when he saw them, but suggested they had been cut at an earlier time. In the result, Moxley’s possible inaccuracy about when he took his photo, whether a lie or a mistake, went to his credibility but not to any issue in the trial. I am not satisfied there are special grounds for leave to rely on that recording on the appeal.

Having dismissed the application to tender new evidence, the judge went on to deal with the grounds of appeal, that is the various claims of legal error by the Magistrate. The first ground was that the Magistrate had refused the appellant’s application for an adjournment. After the Crown case had finished the appellant asked for an adjournment in order to allow him to bring to court a former local police officer who would give evidence that he had cut the locks to the appellant’s gate in January 2017, the ‘implied relevance of the evidence was that it precluded the cutting of the locks by Thompson’ ([19]). The magistrate refused to allow the adjournment. Devereaux DCJ found no error in the Magistrate’s refusal to allow an adjournment. He said (at [20]) ‘That discretionary decision was open to the magistrate. It was for the appellant to have witnesses ready on the day that had been set for his trial’.

The appellant also argued he was not allowed to call his mother to give evidence. This matter was not raised with the Magistrate until after the closing addresses and after the appellant had declined to lead evidence. In any event Judge Devereaux invited the appellant to file an affidavit with the evidence that Mrs Baker would have given had she been called. In fact, he filed a document signed by himself saying Mrs Baker ‘did not see an ambulance officer obtain or use a cutting device on the property’. The statement did not address whether Mrs Baker received instructions from the appellant to lock the gate or secure the property’ ([22]). His Honour held that this document did not contain any evidence that would or could raise a doubt about the accused’s guilt.

At [25] the appellant argued that he was not allowed to play a video to the court or produce documents. His Honour said:

.. upon the appellant’s request, the court played the recording of the Queensland Ambulance Service radio communications during Thompson’s evidence. This allowed the appellant to cross examine on it. There was no other request by the appellant to admit or play video or audio evidence. There was also no attempt to admit into evidence material, including reports, produced by Bundaberg Base Hospital or any government department.

This ground of appeal fails.

The appellant had been given, prior to the hearing in the Magistrate’s court, a document entitled ‘Unrepresented Defendant Trial Information’. He claimed, on appeal, that he had been unable to read the document. Unfortunately for the appellant (at [28]):

The learned magistrate asked the appellant prior to his arraignment to confirm that he had received a copy of this document and that he understood what the document outlined, and the appellant confirmed that he understood. No issue of procedural unfairness arises in the circumstances.

The appellant further argued that because Queensland police elected not to continue with a prosecution of the appellant’s mother, his conviction should not be allowed to stand. At [31] Devereaux DCJ said ‘This matter is irrelevant to the guilt of the appellant… I do not consider it as a ground of appeal’.

Unlawful actions of the paramedics

This ground of appeal, although unsuccessful, will be of most interest to the readers of this blog. In essence the argument was that there no need and therefore not right for the paramedics to take the child to hospital. To support this ground the appellant sought to introduce letters from the Department of Communities, Child Safety and Disability Services that confirmed that the Department did not consider the appellant’s children were in need of protection. Devereaux DCJ said (at [35]-[38]):

The two letters from the Department confirm the result of its officers’ assessment of the appellant’s children was “[u]nsubstantiated” as “children not in need of protection”. The letters are consistent with the appellant’s assertions from the bar table that the child was under treatment at the relevant time. In the circumstances, he may well have felt it unnecessary or wrong for the ambulance officers to take the child, but that did not mean the officers’ actions were unlawful.

The Queensland Ambulance Service’s functions are set out in s 3D of the Act and include, “to protect persons from injury or death, whether or not the persons are sick or injured” and “to provide transport for persons requiring attention at medical or health care facilities”.

The appellant put to Thompson in cross-examination that the witness was unaware the child was already under treatment and that Thompson assumed the child was not being treated. While Thompson accepted that the appellant had told him at the time that the child was under treatment and that he was shown a cream used for that purpose, he said he could not read the medical label on the cream in the lighting conditions and said, ‘no amount of [indistinct] cream that you had was going to fix this problem that your daughter had.’

Although Thompson appears to have been overwhelmed by the circumstances of the appellant’s residence, and this might have affected his judgment, the ambulance officers were nevertheless entitled to form the view that the child required medical attention. In my opinion, and as the learned magistrate found, the transporting of the child was lawful, based as it was on the professional assessments of the officers in all the circumstances they were presented with.

Outcome

The appeal was dismissed. We are not told what the penalty, imposed by the Magistrate was, but there was no appeal against sentence ([33]) so whatever that penalty was, it would stand as the final penalty in the matter.

Discussion

This case does not create a significant precedent but it is worth reporting here as these sorts of prosecutions are rare, and appeals are even rarer. As a (former) legal practitioner it was not uncommon for people to come to court and tell you that they had all sorts of witness who could discredit the police but that evidence has to be at court on the date of the hearing. An accused doesn’t get to hear the Crown case and then decide how they want to respond. Further, it is common for people to believe all sorts of irrelevant material goes to their guilt, eg whether someone else is prosecuted or not or, as the appellant said at [32] ‘… that his conviction has had consequences for his family and wife’s health care’. As Devereaux DCJ said ‘These submissions, and the submission that no consideration was given to the appellant’s anxiety, cannot have any bearing on the soundness of his conviction’.

Further just because you say something (as in this case, that the gate was not locked) that does not mean a court cannot be satisfied beyond reasonable doubt that the opposite is true. In this case the appellant had argued, before the Magistrate (see [19]), that

… there was no case to answer because, among other things, there was no proof the gate was actually locked, there was no evidence of the state of the locks before the ambulance arrived and no scientific evidence matching the bolt cutters to the condition of the locks.

This sort of argument comes from watching too many episodes of CSI and thinking everything has to be, and can be, supported by scientific evidence. The evidence that the gate was locked came from Ambulance Officer Thompson who said, on oath, that it was locked and that he cut the locks open. More is not required.

The important thing was the recognition of the right and capacity of the ambulance officers to make a clinical judgement in the circumstances presented. It is however important to note that the judge did not address the Ambulance Service Act 1991 (Qld) s 38 which says:

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation…

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) or (b), an authorised officer may, for that purpose—…

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

We might infer that His Honour did not address s 38 as the issue of consent was not raised. We are told that the original call was to assist the appellant’s wife. We are told that the ‘ambulance officers put the mother and daughter into their vehicle.’ so we can infer that she was the mother of the child concerned and either expressly or by implication she consented to the child’s treatment and transport if she cooperated with or was capable of cooperating with the paramedics when the daugther was also put in the ambulance. We are told that the appellant said “nobody’s leaving without me” and ordered the gates locked and it was that action that was said to hinder the officers. It is therefore not clear whether the judge would hold that transporting the child would have been lawful if both parents objected ‘based as it was on the professional assessments of the officers’. All one can infer is that the appellant did not argue that the decision to transport was unlawful because of his refusal of consent. That may have been because Mr Gebicki was unrepresented and did not think of it, or because the child’s mother gave either express or implied consent to the child’s treatment and transport.

For whatever reason it appears that he argued that the decision was unlawful because it was not necessary. In response to that argument, Devereaux DCJ confirmed that the decision of whether treatment and transport is necessary in order to ‘…to protect persons from injury or death, whether or not the persons are sick or injured’ and ‘to provide transport for persons requiring attention at medical or health care facilities’ (Ambulance Service Act 1991 (Qld) s 3D and Gebicki v Commissioner of Police [2019] QDC 108, [36]) is a matter for the clinical judgement of the ambulance officers.