Another interesting story from the Sydney Morning Herald reporting that three canyoners have been charged over putting themselves in danger such that they needed assistance from police, ambulance paramedics and the National Parks and Wildlife Service. See the full story here ‘Reckless’ Blackheath canyoners to face court after rescue‘ (see also second story, ‘Sydney canyoner in Blue Mountains rescue‘, Sydney Morning Herald, 17 February 2010).

There is a debate about whether people should be required to pay for their own rescue (see for example, Huss, Sheila M. (2010) “Liability in Search and Rescues: Should Individuals who Necessitate Their Own Rescues Have to Pay?,” Journal of Homeland Security and Emergency Management Vol. 7: Iss. 1, Article 2.)

This action is a criminal prosecution rather than a civil action to recover the cost of the rescue. The Herald journalist reports that “The three are expected to be charged with four offences under National Parks regulations, including putting others at risk, entering a closed park and disobeying park notices.”

It is not clear what sections are involved but it appears that it may be the National Parks and Wildlife Regulation 2009 (NSW):
* Clause 4 which empowers the National Parks and Wildlife Service to give directions with respect to the use of the park, including directions by sign, and makes it an offence to fail to comply with that sign.
* Clause 22 makes it an offence to “engage in any activity or recreational pursuit that involves risking the safety of the person or the safety of other persons…”

In each case the maximum penalty is 30 penalty units (a penalty unit is $110 – see Crimes (Sentencing Procedures) Act 1999 (NSW) s 17).

In a criminal prosecution the question is whether or not the accused have failed to comply with terms of the statute. The Crown must prove its case beyond reasonable doubt. If successful any penalty is paid to the consolidated revenue and is determined by reference to the maximum allowed penalty, rather than the actual cost of the offence, in this case the cost of the rescue. On it’s face then, this is not an action to recover the cost of the rescue.

Notwithstanding this the defendants, if convicted, can be ordered to pay compensation to ‘an aggrieved person’ that is “a person who has sustained loss through or by reason of (a) an offence for which the offender has been convicted …” (Victims Support and Rehabilitation Act 1996 (NSW) s 77A) Under law, The NSW Police, NSW Ambulance, National Parks or the government may be a ‘person’ for the purposes of the act and could, arguably, seek an order on the basis that the loss suffered is the cost of the rescue!

Whether that is what they intend to do remains to be seen. It would seem unlikely and a Magistrate may find it difficult to justify (see s 77D) ordering an individual to pay for what was, probably, a very expensive rescue. It is more likely that the police will be satisfied that a criminal prosecution and possible penalty will drive home the message of personal responsibility, rather than seek to recover the costs of the search. It will, however, be interesting to keep an eye on this case to see how it turns out if the defendants are found to be guilty of the offences charged.

If the police do seek to recover the costs of the rescue that would be a new and unusual step in Australia but may indicate a new ‘get tough’ attitude by the emergency services.

Michael Eburn
17 February 2010