R v Hearn [2026] QCA 121 was an appeal by Mr Hearn after he had been found guilty by a jury. He was convicted and sentenced ([2] and [4]) as follows:
- Assaulting a paramedic, aggravated by spitting in the paramedic’s face, 2 years imprisonment;
- Assaulting a police officer, also aggravated by spitting at the officer, 1 year imprisonment;
- Assaulting a police officer causing bodily harm, 1 year imprisonment;
- Assaulting the (non-paramedic) driver of the ambulance, 6 months imprisonment; and
- ‘contempt of court for conduct during the trial’, 2 months imprisonment to be served concurrently (ie after the other sentences).
The offending (other than the contempt) occurred 4 June 2020. The trial concluded with a guilty verdict on 19 August 2022, and he was sentenced on 26 August 2022. He lodged a notice of appeal on 7 September 2022.
The total effective sentence was 2 years and 2 months imprisonment. At the time of sentence, he had already been in custody for 812 days (ie 2years, 2 months and 20 days or longer than the actual sentence). The ‘time served’ was counted toward his sentence for the assault matters; but only one week was counted toward the contempt matter (which occurred during the trial so presumably very shortly before the sentence). The result was that he remained in gaol until 2 September 2022 before then serving the remaining 46 days of his contempt sentence by way of community correction.
The appeal was unsuccessful and his appeals against both conviction and sentence were dismissed. The appeal raised a number of legal issues that I don’t need to report here, I will focus on what Bradley JA (with whom Bond and Cooper JJA agreed) had to say about the assault on the paramedic and more importantly about the power of paramedics and police to detain a person under the Public Health Act 2005 (Qld) s 157B.
I have written about Emergency Examination Authorities (EEA) before (see https://australianemergencylaw.com/?s=EEA). I have noted that police and paramedics do not detain a person under an EEA, rather they detain a person under s 157B and they can write an EEA which allows others, in particular hospital staff, to continue the detention. That is what happened here.
The facts are set out in [10]-[42]. An abridged version is set out below:
On 4 June 2020, close to 10.00 pm, an acting sergeant at the Cunnamulla Police Station (the sergeant) received a telephone call from Mr Hearn… He told the sergeant he was very depressed and would rather just die. The sergeant tried to convince Mr Hearn “not to go that way”. She told him she was coming to see him to get him some help. He replied “Don’t do that, darling. I don’t want you to come. I want you to just let me die.”
A constable (the constable) was also working at the police station that night. She knew Mr Hearn. …
After Mr Hearn’s call, the constable informed police communications of an “attempt suicide”. Once this was done, police communications contacted the regional health service. As a result, an ambulance officer (the paramedic) and an emergency ambulance driver (the driver) were dispatched from the Cunnamulla hospital in an ambulance. The sergeant and the constable set out from the police station in a police car. Both vehicles were bound for Mr Hearn’s home, at the end of a street on the edge of Wyandra, about 100 km north of Cunnamulla along the Mitchell Highway.
The police officers arrived at Mr Hearn’s home at about 11.00 pm… The ambulance officer and driver arrived about 11.15 pm…
Mr Hearn was lying on the ground under a canvas swag shell. He was wearing only shorts and a t-shirt. He had no shoes. The constable described the temperature as “freezing cold”. It was expected to drop to about three degrees overnight. When the sergeant reached Mr Hearn, he was asleep, “shivering and cold.”
Mr Hearn was conscious, but not very coherent. He was intoxicated, slurring his words, and not making much sense… He had to be helped to stand, and when he stood, he was stumbling…
The police officers attempted to persuade Mr Hearn to go in the ambulance to the hospital for medical assistance. They were unsuccessful. The sergeant then told Mr Hearn they needed to take him to the hospital… Mr Hearn insisted he did not want to go to the hospital…
The two police officers walked Mr Hearn in the direction of the ambulance… He asked the officers not to hold him. He bent over. The constable expressed concern that he was not breathing properly and might fall. She suggested he sit down for a moment and take some deep breaths. Mr Hearn refused. He asked the police officers, once again, “Can you just leave me?” The sergeant replied, “No, we can’t just leave you, my friend.” Mr Hearn responded, “Just leave me, please.”
Mr Hearn sat down, but then tried to stand, asking “Can I get up?” … Mr Hearn began to stand up. The sergeant then spoke to him:
“Trevor, no mate. We need you to stay sitting, okay. … Yeah. … Because you’re detained … Okay, so you can’t go anywhere just yet.”
The sergeant said she made the decision to detain Mr Hearn. This was about 30 minutes after the police had arrived…
The paramedic told the jury:
“… I was going to sedate [Mr Hearn] because he was – it was my impression at that stage [that he] was suffering acute behavioural disturbance, what we call an ABD, and with a patient who’s suffering an ABD, they exhibit that they’re either a threat to themselves or a threat to others. At this stage [Mr Hearn] wasn’t so much a threat to us but he was definitely a threat to himself. He was intoxicated. It was June in the middle of south-west Queensland where the temperatures were quite cold. And if we were to leave him in an environment like that – I’d been to patients before where we have dealt with hypothermic arrests because people have slept rough like that”.
… The paramedic said he told the sergeant, he was going to draw up the sedative triperidol “in case we do need it” if Mr Hearn “does become more violent and it gets to the situation”…
The paramedic identified continued physical restraint as the only other option to transport Mr Hearn to the hospital for treatment. He said:
“the only physical restraint would have been handcuffs and in the back of a moving vehicle for 100 kilometres, even in the back of a moving vehicle for 10 kilometres, an aggressive agitated patient, it’s not a safe environment.”
Mr Hearn cross-examined the paramedic about whether he had “authority to sedate someone when they’re totally intoxicated”. The paramedic said he did. He said there was “no requirement under the EEA” to warn the person that they will be sedated…
The paramedic approached with a syringe, with 10mg of the sedative, and an alcohol swab in his hand. The constable told the jury, “as soon as that alcohol swab touched him on the arm, he’s reacted.” The constable tried to hold Mr Hearn. Mr Hearn “started kicking out with his feet” and was “very agitated.”
The sergeant gave evidence that:
“the paramedic indicated that he was going to administer chemical sedation and wanted our assistance with holding the defendant still to ensure that he could do that safely and effectively. So we were attempting to hold his arms and to keep him on the ground while the paramedic administered the injection into his arm. But he saw the needle coming and did not wish to be sedated, and he started throwing his arms and legs, trying to hit and kick.
He spat at me, and it landed on my torso, like around my belt line. At that point, I was fearing serious injury to all of us. So, I presented my taser, and as per my training and the OPMs, I gave him – I told him that I was presenting a taser and I told him that he needed to stop. And when he didn’t, I deployed the taser in probe mode. That means that I press it and it completes a cycle, and the two probes go, and I believe they broke his belt line, meaning that one was above his belt line and one was below his belt line, and that caused temporary neuromuscular incapacitation, allowing time for [the constable] to gain control of the defendant and put his – ultimately, put his handcuffs on and – and [for the ambulance officer to] do the chemical sedation.”
… The four witnesses were consistent in recalling that, before the sergeant used the taser against him, Mr Hearn spat at the sergeant, lashed out with his open hand towards the driver who jumped backwards, and kicked the constable in the head. This conduct was the basis of the three serious assault offences for which Mr Hearn received the lesser concurrent sentences…
The paramedic injected Mr Hearn with the sedative…
The constable advised Mr Hearn that he would be arrested for serious assault.
The sergeant gave evidence that Mr Hearn “spat again.” She was “not entirely sure where it landed.” … The sergeant’s evidence continued:
“… We let him stand up himself, but then put him on the stretcher. And as he lay down, … the paramedic, was trying to strap him onto the stretcher, and [Mr Hearn] spat directly and repeatedly into [the paramedic’s] face, which is why we all sort of responded as we did, saying it was very disgusting. … It was very – very close proximity, because [the paramedic] was leaning over [Mr Hearn] to secure the straps.”
This conduct was the basis of the most serious assault offence, for which Mr Hearn received the sentence of two years’ imprisonment….
The driver drove the ambulance to the hospital, the paramedic and the sergeant accompanying Mr Hearn in the ambulance. The constable followed in the police car.
At the hospital, the sergeant completed an emergency examination authority (or EEA). She gave it to a doctor at the hospital at about 2.18 am on 5 June 2020…
The appeal
As noted the appeal raised issues that are not relevant to this blog; issues about the conduct of the trial and the judges responsibilities where an accused is representing themselves. I will not report on those suffice to say the arguments were not successful.
Mr Hearn argued that the trial judge failed to properly direct the jury on the law relating to detention under the Public Health Act, the power of the paramedic to administer sedation and the available defences of self-defence, mistake and provocation.
The Public Health Act
Section 157B says (quoted at [52]):
“157B Ambulance officer or police officer may detain and transport person
(1) This section applies if an ambulance officer or police officer believes—
(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and
Example—
a person is threatening to commit suicide
(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and
(c) the person appears to require urgent examination, or treatment and care, for the disturbance.
…
(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.”
Section 157C (quoted at [56]) says:
(1) The ambulance officer or police officer must—
(a) tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and
(b) explain to the person how taking action under paragraph (a) may affect the person.
(2) The ambulance officer or police officer must take reasonable steps to ensure the person understands the information given under subsection (1), including by telling the person or explaining the thing to the person—
(a) in an appropriate way having regard to the person’s age, culture, mental impairment or illness, communication ability and any disability; and
(b) in a way, including, for example, in a language, the person is most likely to understand.
The jury were instructed that it was up to them to decide whether the police and ambulance officers had the necessary belief required by s 157B. Mr Hearn had argued that there was no immediate risk. He had said ([53]) ‘the police and ambulance arrived more than two hours after his first call to the police; he had not died or killed himself in that time; and he could survive in the bush’.
The legal argument put on appeal ([64]) ‘seemed to assume that the trial judge should have determined, as a matter of fact, what each of the sergeant and the paramedic did and then whether their actions were lawful under the Public Health Act’. The judges on appeal said ‘Had the trial judge done so, his Honour would have usurped the decision-making function of the jury’.
That is the question of whether the police or ambulance officers held the necessary belief, and whether they used appropriate language to explain what was happening are questions of fact. Questions of fact are determined by the jury, not the judge. The judge correctly explained to the jury what the law required so it was then up to them to decide whether, in this case, the police officer had the belief required etc. As the appeal court said ([65]):
The trial judge identified for the jury the things that the relevant provisions of the Public Health Act require for an ambulance officer or police officer to lawfully detain a person under s 157B and the legal requirements of the other associated provisions. His Honour summarised the evidence of what the sergeant and the paramedic (and the other persons present) said they did on the night in question. His Honour told the jury it was “a matter for you” to decide what each person did and whether what they did was lawful, according to the directions his Honour had made about the provisions in the Public Health Act. His Honour described it as “the big ticket item in this case.”
Sedation
Counsel for Mr Hearn argued that the test for whether the use of sedation was lawful was set out in s 282 of the Criminal Code. That section says ([67]):
A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation on or medical treatment of a person or unborn child if performing the operation or providing the treatment is reasonable, having regard to all the circumstances of the case.
The Court said that this section was irrelevant. They said (at [69]-[70], emphasis added):
The relevant subject matter of s 282 is criminal responsibility for performing a surgical operation or providing medical treatment. The jury at Mr Hearn’s trial was not charged with deciding whether the paramedic was criminally responsible for sedating Mr Hearn or for attempting to do so. The evidence at the trial was not that in sedating Mr Hearn the paramedic was performing a surgical operation or providing a medical treatment. The sedation was in aid of detaining Mr Hearn and transporting him to the hospital for treatment.
The jury’s determination of whether Mr Hearn was criminally responsible for the assaults required the jury to consider whether the actions of the paramedic and the others present were lawful, amongst other things. The sergeant told the jury she had detained Mr Hearn under s 157B of the Public Health Act. If the jury was satisfied the sergeant had acted lawfully, then the lawfulness of the use of force by the paramedic (and the others involved) fell to be determined by s 157L of the Public Health Act, which provides:
“157L Use of force to detain and transport
An ambulance officer or police officer may exercise the power to detain and transport a person under this chapter with the help, and using the force, that is necessary and reasonable in the circumstances.”
It was up to the jury to determine if the force used, including sedation, was ‘necessary and reasonable’ in the circumstances. If it was not then arguments of self-defence etc may have been relevant.
Provocation and self defence
In common law states, such as NSW and Victoria, the old-fashioned defence of provocation was only available to an allegation of murder. If established, it reduced murder to manslaughter. That is not the case in Queensland where the Criminal Code 1899 s 269 says ‘A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault…’. Section 268 says that ‘provocation’ means:
(1) … any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered….
(3) A lawful act is not provocation to any person for an assault.
In this case (at [81]):
The trial judge instructed the jury that they were to acquit Mr Hearn on all four counts if they were not satisfied beyond reasonable doubt that the sergeant and the paramedic had acted lawfully in detaining and sedating Mr Hearn. If the jury was so satisfied, then the lawful act of the police officers or the paramedic could not be provocation for any of the assaults, and self-defence would be excluded because it is available only against an unlawful assault.
This was a simplified view of the law. The Crown could negative self-defence or provocation even if the actions by the police or paramedics were unlawful but that was not the way the case was run. As the court said (at [82]-[83]) ‘His Honour gave Mr Hearn the benefit of the chance of an acquittal … his Honour’s abbreviated directions were to Mr Hearn’s advantage, and could not have prejudiced him’ and at [85] ‘I would reject Mr Hearn’s contention that a miscarriage of justice resulted because the learned trial judge did not direct the jury in more detail on self-defence or provocation…’
Mistake
At [86] we are told ‘it was submitted that the trial judge erred in not directing the jury on whether the Crown had excluded beyond reasonable doubt the possibility that Mr Hearn assaulted the officers under an honest and reasonable, but mistaken, belief that he would not be criminally responsible for the assaults.’
An honest and reasonable belief in facts that if true would make the act of the accused innocent is a lawful defence to most crimes. It requires however a mistake of fact. A belief that the accused would not be criminally responsible is a mistake as to what the law says. At [88] the Court said:
It is possible that a person might be mistaken about a fact, with the consequence that they believe another person to be acting unlawfully. That is not the mistake asserted for Mr Hearn. If Mr Hearn was mistaken, it was not about whether the sergeant was a police officer or whether the paramedic was an ambulance officer, but rather about their respective powers under the Public Health Act. This would be a mistake of law. A mistake of law, including ignorance of it, does not excuse a person of criminal responsibility for their acts.
Appeal on sentence
Mr Hearn argued that the 2 year sentence was ‘manifestly excessive’ (I’m not sure why that matters when the sentence has already been served but his counsel thought it important). The court said (at [105]):
The maximum penalty for unlawful assault of a public officer performing a function of the officer’s office, in circumstances where the offender spits on the public officer, is 14 years’ imprisonment. This signifies the potential seriousness of such offending. Mr Hearn’s sentence for the most serious offence encompasses the total criminality of Mr Hearn’s all four serious assaults. The other two aggravated serious assaults attracted the same maximum penalty. The serious assault of the driver, without circumstances of aggravation, carried a maximum penalty of seven years’ imprisonment. The sentence of two years’ imprisonment indicates the trial judge considered Mr Hearn’s conduct to be towards the lower end of such offending.
Mr Hearn’s counsel argued that the offences occurred (at [112]): ‘in “very extenuating circumstances”, which called for a much lower sentence. Those circumstances were said to be: “… he was suicidal. He was saying he wanted to die. He was … taken by surprise. He reacted. There wasn’t … premeditation by him.”’
The sentencing judge had considered evidence of Mr Hearn’s mental health conditions. Importantly the appeal court said (at [115]-[116]):
Mr Hearn’s most serious offence was the aggravated assault on the paramedic, which attracted the head sentence. He did not commit this offence as an immediate reaction to the presentation of the syringe. Mr Hearn assaulted the paramedic after he had been immobilised by a taser, injected with a sedative, and warned he would be charged for the three initial serious assaults, including spitting on the sergeant. He was lying on a stretcher. The paramedic was leaning over him to fasten the straps to allow him to be safely carried to the ambulance. He repeatedly spat in the paramedic’s face. This offence involved no surprise or reaction. It was opportunistic.
The trial judge, with respect accurately, described the offending as appalling behaviour, extremely insulting and extremely aggressive. As his Honour noted, the paramedic and the other officers had driven 100 km through the night in mid-winter to attempt to save Mr Hearn’s life.
The sentence was not manifestly excessive.
Conclusion
All grounds of appeal, both against conviction and sentence were dismissed.
The important legal principle is the confirmation that the test in s 157B is subjective that is does the police or ambulance officer hold the necessary belief to act under the section. If they do then their actions are lawful. If they do they can use ‘reasonable force’ including sedation. The use of sedation need not be for the therapeutic benefit of the patient (ie to treat their underlying condition) but for the purpose of safely facilitating their transport to hospital.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 