Magistrate Pat O’Shane has again attracted controversy with her decision to dismiss a case where a man was alleged to have assaulted a paramedic with the Ambulance Service of NSW.  The case is reported

Not surprisingly the decision has led to heated debate on the Facebook page – Paramedic Philosophy 101.   The outrage is understandable but it may be worth keeping some things in mind.

  1. The accused was charged with assaulting an ambulance officer.  An assault is doing any act with the intention of, or knowing that it will, put another person in fear of violence.  A battery is the actual, intended application of force to another.  Notwithstanding that there is a difference between assault and battery, they are both generically referred to as ‘assault’.  I think we can infer that what is alleged here is a ‘battery’
  2. The criminal law isn’t really about protecting victims, it’s about punishing offenders.  A person who hits another may not be guilty of assault if they didn’t intend to, were acting under a mistake or were so affected by alcohol, drugs, mental illness, the effects of their injuries etc that they were acting ‘involuntarily’; so, for example an epileptic who hits a paramedic is not guilty of assault even if the paramedic is injured.  The critical issue in a criminal prosecution is not the effect of the accused’s actions, or how someone feels about their actions, it’s ‘what was going on in the mind of the accused?’
  3. None of this is to suggest that any of this applied in this case.  What we do know, however, the accused had entered a plea of ‘not guilty’ (if he had entered a plea of guilty, there would not have been a hearing).  We don’t know why he entered a plea of not guilty, that is what his defence was going to be, but he at least had some argument he wanted to run.  There was at least a dispute over his guilt.
  4. It follows therefore that there was a presumption of innocence; we cannot know if he ‘assaulted’ the paramedic in question even if we accept that he hit him or her.
  5. Magistrates’ cannot be sacked.  They can only be dismissed if both houses of Parliament are satisfied there is proved misbehavior.  Misbehavior is not making decisions that are unpopular.  It is because the State is often before the Court that judges and magistrates promise to dispense justice without fear or favour.   They would be ‘in fear’ if they could be sacked if the government of the day didn’t like their decisions.  The upside is that you should be able to expect an impartial hearing even if you are being prosecuted, or sued by the State; the downside is if you get judges you don’t like, you’re stuck with them.
  6. The clear error here, at least if the reports are correct, is that Her Honour dismissed the case without first hearing all the prosecution case.  A magistrate can, after hearing the Crown case find the accused Not Guilty but she should not do so if she hasn’t heard the whole case.  As noted she is meant to be impartial and blind, to do justice is to do justice for all the parties, including the prosecution.  To dismiss a case without hearing all the evidence would I imagine be an appealable error in which case the Supreme Court would have no problem ordering that the case go back before the Local Court.   If the prosecution appeal a superior court judge (unlike a Magistrate) will have to give full written reasons explaining what happened and why they make the decision they do.  These will be published online at a site like AustLII or NSW Case Law.
  7. Paramedics may be interested to realise that there are specific offences of hindering or assaulting an ambulance officer set out in the Health Services Act 1997 (NSW) s 67JThat section says:

67J Obstruction of and violence against ambulance officers

(1) A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

(2) A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

Maximum penalty: Imprisonment for 5 years.


(4) In this section:
“ambulance officer” means a member of staff of the Ambulance Service of NSW.
“ambulance services” means the work of rendering first aid to, or transporting, sick and injured persons.

 

It is interesting to note that both subsections (1) and (2) say that a person must not do those things to an ambulance officer who is ‘attempting to provide ambulance services to another person or persons’.  The question will be to whom does the word ‘another’ apply to?  I would suggest that the reference to ‘another person’ mean a person other than the patient.  If that is correct then this man did not commit these offences as the ambulance officers were not attempting to treat ‘another person’.  These sections are designed to protect ambulance officers from bystander, not patient, initiated violence.

If the reference to another person was a person other than the ambulance officer, then that would have implications for a right of a person to refuse treatment.  Refusing treatment could be hindering an ambulance officer even though we are entitled to refuse treatment.  If the section was intended to apply when a patient assaulted an ambulance officer it could simply say “A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer.”

It is also interesting to note that the sections only apply to the staff of the Ambulance Service of NSW.  This would not extend to volunteers with St John Ambulance Australia and may not extend to officers from other jurisdictions who are assisting at a NSW disaster.

 

The legal lesson

The legal lesson from this is

  1. We should be cautious not to rush to judgment on the issue of whether or not the accused is guilty of assault. That issue has not been tested.
  2. If the Magistrate did dismiss the case without hearing the entire prosecution case we can expect, if the prosecution appeal, that the Supreme Court would send the matter back to the Local Court for a hearing according to law.  If there is an appeal we will get detailed written reasons that will give much greater insight into what happened both on the day of the alleged offence and in the local court.
  3. Section 67J of the Health Services Act 1997 (NSW) may not do the job that many paramedics think it will.

 

Michael Eburn