This question comes from Queensland:
I read your wordpress blog post today around the National, QLD and WA legislations in regards to moving out of the way for Emergency Services vehicles found at https://emergencylaw.wordpress.com/2015/05/18/making-way-for-emergency-vehicles/
What prompted me to search for information around this was a news article on Brisbane Times which covered an unlicensed, drunk driver which “did not see” the police with their sirens and lights activated from ~500m behind the driver in question. URL: http://www.brisbanetimes.com.au/queensland/queensland-police-commissioner-ordered-to-pay-drunk-driver-1800-20150601-ghdzzs.html
I have now been through all of the legislation that I can find (more out of interest than any specific need) to try and determine if there is any clarity or guidance for when a driver would be required to move out of the way in terms of distance.
It would be of my personal opinion that if I had Police/Fire/Ambulances half a kilometre behind me, I probably would not need to get out of their way until I was in their way or close to it (lets say 100m behind) yet there is no mention of this at all in the legislation available.
While I am not specifically requesting legal advice of any kind, I find it to be a grey area which has not been clearly defined by our legislators which could/can result in situations like the Brisbane Times article as linked above.
The story in the Brisbane Times is not about ‘failing to give way to an emergency vehicle’ but failing to pull over when directed to by police. I’ll address both.
First, it should be understood that, as in so many areas, legislators don’t want to spell out things with too much precision as it fails to give flexibility for the myriad of circumstances that might arise. So laws are written broadly to be interpreted, in the first instance by the police and then if necessary by a court where all the evidence can be tested and an independent person (the judge, magistrate or jury) can decide issues such as what was ‘reasonable’ or whether the driver could have safely got out of the way of the oncoming emergency vehicle, or should have understood that they were being directed to stop.
To turn then to the issues, the Australian Road Rules say:
‘If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely’ (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 78(2); see also Making way for emergency vehicles (May 18, 2015)
Clearly there is no ‘prescribed’ distance as there are far too many variables as to what, in the circumstances, would constitute moving out of the path safely. Once upon a time (when I was learning to drive) the rule was to the effect that if you heard a siren you had to pull to the left and stop, but that’s impracticable as one can hear a siren from a long way off and can have trouble telling where it is coming from. So the rule says you have to safely get out of their way. What that means will depend on all the circumstances.
As noted however, this story was about failing to stop for police. Here the relevant provision is the Police Powers and Responsibilities Act 2000 (Qld) s 60 (1) which says: ‘A police officer may require the person in control of a vehicle … to stop the vehicle for a prescribed purpose’. A prescribed purpose includes and ‘to conduct a breath test’ (s 60(3)(e)). A ‘person must comply with the requirement, unless the person has a reasonable excuse’ (s 60(2)).
Whilst this section does not set out a ‘mental element’ (ie it does not say it is an offence to ‘knowingly’ or ‘intentionally’ disregard a direction) it does stand to reason that A driver can only be guilty of this offence if they know that the police are requiring them to stop. That is supported by the fact that s 60(2) allows for a ‘reasonable excuse’ and if the court accepts that, in the circumstances, it is reasonable that the driver did not know they were being directed to stop, that is an excuse. In this case we’re told the judge accepted the defendant did not see the police car 300-500m behind her. Even if she had the judge would have accepted that even if she’d seen them it was reasonable, given the distance between her and the police, not to realise that they were directing her to stop. If they were not in a position to communicate the direction to stop, she could not guilty of that offence.
One could be outraged given she admitted to the offences relating to drink driving, driving whilst unlicensed and losing control of the vehicle but just because a person is guilty of some offences does not mean they are guilty of all, nor does it justify recording a conviction for the offences the person is not guilty of. It is not appropriate to ‘load the charge’ sheet up with whatever the police can think of and then to think ‘well she did some so what does it matter’.
As we celebrate 800 years of Magna Carta we should remember its most enduring clause:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice. – (See more at: http://www.bl.uk/magna-carta/articles/magna-carta-an-introduction#sthash.G4CbGEBo.dpuf)
If this driver was not given an effective direction to stop she did not commit that offence and she was entitled to have the removed from her record. The fact that she was guilty of the other offences and remains liable for them is irrelevant.
This is not however ‘carte-blanche’ to the driver in the high speed pursuit to say ‘they were so far behind me I didn’t realise they were after me’ or the like. Each case has to be judged on its own facts and each witnesses assessed. The witness who tells a ridiculous story or demonstrates ‘wilful blindness’. For example no-one is going to accept that a driver passing an RBT station didn’t realise that the officer waving them down or holding a ‘stop police’ sign was directing it at them. It’s not, as some people would believe, just a matter of ‘saying’ ‘but I didn’t realise they were after me’; one has to be believed, and in this case, she was.
To return to my correspondent’s original question, again there is no regulation that says exactly how close police need to be to communicate the direction to stop as there are just too many possible scenarios. If, in all the circumstances, the direction is clear, then it is an offence to stop when directed.