I’ve previously reported on a NSW Rural Fire Service volunteer who was facing serious criminal charges following a fatal motor vehicle accident – see Rural Fire Service volunteer on trial for fatal collision (May 19, 2016). 9News Online is reporting that a jury has returned a verdict of ‘Not Guilty’ (see NSW firie not guilty over fatal smash, 16 June 2016).
Whilst this process must have been very hard for all concerned it is an example of the rule of law in action. This was a tragic accident where one person died and one person was permanently and seriously injured. Testing, in public, whether the conduct of the fire fighter was criminally culpable should help to reassure the community and the family of the loved one’s that the matter was investigated and properly dealt with, something that may not happen if decisions such a decision not to prosecute are made by the police or the Director of Public Prosecutions. Where there is evidence to suggest a crime may have been committed the appropriate course is to put the matter before a jury and let the community’s representatives – the jury – determine whether conduct was ‘reasonable’ or caused the death and injury. Because juries do not give reasons for their decision, however, we’ll not know what factors were considered important in their decision.
Australian Emergency Law 
Hi Michael, I think you have addressed how the legal process (such as this RFS criminal case) takes place is several previous posts. It is sometimes difficult to tie all the pieces together as to how the Australian legal process takes place. Could you please briefly summarise how it takes place from the initial action, who gets to “charge” the instigator and why they might or might not charge someone and how after being charged the legal process unfolds (both civil and criminal) and the roles the various legal “actors” have. Could you also look at the appeal process and the absolute final legal avenue available. I would be interested if you could possible do it as “first person”, i.e. as if the reader was the one committing (or omitting) the starting action (or inaction) through the gamut of the legal process, so your readers can get some idea of what process they may actually face if they were ever unfortunate enough to get swallowed into this legal behemoth. I know I would find it confronting, daunting and stressful. Just to stretch things a bit further, can you also look at how a coronial inquest unfolds as I understand that is a completely different process (but no less stressful for the individual). Thanks. And keep up the great work you do on your blog…I find it invaluable and it has moulded my way of approaching my “job” as a NSW SES volunteer.
That’s a lot; but I’ll see what I can do. Watch this space.
Ok I’ll give it a go…
I’m driving a NSW emergency service vehicle that’s involved in a fatal collision. The first thing I need to do is provide whatever assistance I can to the others involved in the accident (Road Transport Act 2013 (NSW) s 146). Police will attend. As the driver I need to give my details to police, along with “an explanation of the circumstances of the accident” (Road Rules 2014 (NSW) r 287; see also Obligations of a driver involved in an accident (May 4, 2016). I will also be required to undergo drug and alcohol testing (Road Transport Act 2013 (NSW) s 114 and Schedule 3).
Criminal law
Police will conduct an investigation. That will involve collecting statements from witnesses as well as their specialist, scientific investigation as they need to consider any possible cause of the accident such as mechanical defect; as well as consider anything that is suggested by the evidence. The investigation should not be aimed at exonerating me nor is it aimed at trying to convict, it is, aimed at finding all relevant evidence.
When investigating whether or not an offence has been committed, police should as a matter of fairness interview a potential suspect. Before they do so they do have to ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 (NSW) s 139). If police want to ask me question but start the interview with that caution I should at least consider that the police are considering charging me with a serious criminal offence.
Having collected the evidence police need to consider whether the evidence is sufficient to create a ‘reasonable suspicion’ in the mind of the investigating officer. The police know what they have to prove to establish an offence. If they have reasonable grounds to believe that an offence has been committed they have grounds to charge the defendant. A ‘reasonable suspicion’ is not the same as being convinced beyond reasonable doubt.
If police have sufficient evidence to create a reasonable suspicion they will issue a court attendance notice, or in more serious cases, they may choose to arrest me. If I am arrested I can be held whilst police conduct further investigation and this may, in some circumstances involve the collection of forensic samples.
Having been arrested I must be formally charged with the relevant offence. After a charge is laid police must decide whether or not to allow me to be released on bail. The question to be considered is whether there is unacceptable risk to the community of further offending or an unacceptable risk that I will fail to appear in court. If police grant bail I’ll be issued a court attendance notice and released with a promise to return and face court on the set date. If police refuse bail I will be held in the police cells until I can be brought before a court for a magistrate to determine whether or not I should get bail.
Assuming that bail is issued I’ve then got time to go and find a lawyer. Whether I am eligible for legal aid will depend on my income. Depending on the attitude of the service for which I work/volunteer, they may be willing to pay for my lawyer (see Agency support when facing criminal charges (June 17, 2015)). During this time my lawyer can make representations to the DPP asking them to withdraw the charges. The DPP does publish prosecution guidelines and any submission would have to make a case based on those guidelines
When the matter first comes before court the magistrate will make orders to move the prosecution along. The first step is for the prosecution/police to serve a full brief of all the evidence that they will rely on. The matter came back before the court a number of times but at some point I will have to enter a plea of ‘guilty’ or ‘not guilty’.
If the plea is ‘guilty’ a date for sentence will be set. That will be in the Magistrates’ court, the District court or the Supreme Court depending on the offence.
If the plea is ‘not guilty’ the matter will be set for hearing, again which court will hear the matter will be determined by the offence. If the matter is to be heard in the District Court or Supreme Court the prosecution will be taken over by the Director of Public Prosecutions. If it’s heard in the Magistrates’ court, the prosecution will probably be run by the police but again it could be the DPP.
Ultimately a date for trial will be set. If the matter is before a Magistrate, the Magistrate determines both whether I am guilty or not guilty, and if guilty the sentence. If the matter is in a superior court (District or Supreme) then a jury will normally determine whether the Crown has proved its case ‘beyond reasonable doubt’. If they say I am ‘not guilty’ I can go free; if they say I am ‘guilty’ then the Court has to consider sentence. Pending sentence I may be released on bail but if the judge is sure that the appropriate sentence is a period in gaol, bail may be refused.
During the trial the judge will have to make decisions about the law; these will include issues about the admissibility, and use, of evidence and the law that the jury has to consider when determining guilt or innocence. If either party thinks that the judge has made an error so that the trial was not conducted according to law then they may appeal. An appeal from a jury trial will go to the Court of Criminal Appeal (three Supreme Court judges). The appeal can’t be simply that I, or the Crown, don’t like the result; the appeal has to be that there is a legal issue.
After an appeal to the Court of Criminal Appeal, either party may seek leave to appeal to the High Court of Australia. The High Court will only allow an appeal if a judge is persuaded that there is a significant legal issue that arose at trial and that the High Court, as the ultimate court of Appeal should consider. Most cases never get to the High Court.
Civil law
The family of the deceased and anyone injured in the accident may want compensation for their losses. Assume, for the sake of the argument, that I am the driver at fault. The people seeking compensation will have to serve various notices under the Motor Accidents Compensation scheme. These will actually be served on the compulsory third party insurer. As the driver I may be expected to give details to the insurer on what happened, but as the driver I will be indemnified by the CTP insurer who will run the case before the court or, more likely, agree with the plaintiff and pay the agreed compensation. Should the matter go to court I may have to give evidence but it will still be the case that the entire claim will be dealt with by the CTP insurer.
Hi Michael Thank you for posting this info, This has been weighing on a lot of volunteers minds for some time. Regards Chris
Grant,
You will find much of interest in Michael’s book “Emergency Law”.
I would expect it to be in your agency library.
If not, you can purchase a copy from the publishers here: http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862879362
The officer may have been found “Not guilty” by a jury but the Daily Telegraph reports that he is to be “dragged back to court” by Crown prosecutors. Here is the link to the DT story:
http://www.dailytelegraph.com.au/newslocal/central-coast/acquitted-firefighter-ian-wells-to-be-dragged-back-to-court-over-fatal-freeway-crash/news-story/a5d1b81ff493aabc9fb7bcd42d461eea
If he is not guilty, what else could be going on?
I can think of three things that might be happening. Either
1) the Crown has lodged an appeal and the matter has to go back for some procedural ruling (because it’s way too soon for it to be actually heard) but I doubt that;
2) it’s going back to court for some argument about costs eg there may have been an application that the Crown should pay the defendant’s costs and they haven’t agreed to that and that might be consistent with the description of being ‘dragged back’ to court or
3) (and i would think this is most likely) there are some ‘backup’ charges that still have to be dealt with. When the Crown charge a person with a serious indictable offence that has to go before a jury they may also file some lower order charges ‘just in case’ – in this case perhaps ‘negligent driving’ or ‘fail to make a u-turn with safety’. In this case if he was charged with negligent driving causing death and GBH the jury’s verdict may be in effect that the negligence didn’t cause the accident but that doesn’t mean, so the Crown might argue, that the driving wasn’t negligent so they may want to still run that case before a Magistrate.
What is most concerning is the defendant’s statement that he is being ‘dragged back before court by Crown prosecutors and he does not even know why’. There has to be relevant paperwork and I’m sure his lawyers could explain to him what is going on. It’s a worry if he still doesn’t understand the process – a Rolls Royce system of justice is like a Rolls Royce – too expensive for most people and unless you’re an expert, completely beyond most people’s ability to understand what goes into it.