A correspondent from the Northern Territory has brought this story from March 2016 to my attention – see Neda Vanovac ‘Former cop jailed over kids’ car crashnews.com.au (March 31, 2016).  Although the defendant was only sentenced in March this year, the accident occurred in 2014 – see ‘Cop charged for leaving scene of car accident in Alice SpringsNT News (May 11, 2014).

It has often been said that there is no general duty to rescue – that is we are not under a duty to go to the aid of a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) but that is a rule of the common law and can be altered by Act of Parliament. The Northern Territory has a unique provision in the Criminal Code (NT).  Section 155 says:

Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of an offence and is liable to imprisonment for 7 years.

In my book, Emergency Law (4th ed, Federation Press, 2013) I said this about s 155:

The obligation is not a general obligation to assist anyone in need. It is limited to cases where the person in need is suffering from “a potential or actual life-threatening injury” (Salmon v Chute (1994) 94 NTR 1, [17]).  It must also be shown that the accused was physically and mentally capable of rendering assistance, they were sufficiently close to be able to provide assistance and they knew that someone was in need of assistance ([19]). Even where all these factors are present no offence is committed unless the accused “callously” refuses to help. To act “callously” requires a deliberate and conscious choice not to assist. That choice must be in circumstances where it would “offend com­mon standards of respect, decency and kindness in the sense that a reasonable person would regard the accused’s failure as callous” ([22]).

In Salmon v Chute the accused was acquitted.

In R v Hettirachchi (Northern Territory Supreme Court, 3 March 2016, Mildren JA) (the case the subject of the news reports, above) former Constable Hettirachchi entered a plea to 5 counts of failing to render assistance as required by the criminal code.

The facts, as reported by the judge, are that at 1.45am Constable Hettirachchi was on duty with Probationary Constable Hicks.  It was the probationary constable’s first shift!  They approached a motor vehicle with 5 young people in it.  It had been reported that the young people had alcohol in the vehicle with them.   The car drove off and Constable Hettirachchi pursued them.   At some point the police lost sight of the vehicle so they patrolled and saw that the vehicle had collided with a tree and was on its side.  Rather than stop and render assistance Constable Hettirachchi drove on and said to the Probationary Constable ‘You didn’t see anything’.   They did a u-turn and drove back past the accident sight and when asked by the Probationary Constable whether she should radio details of the accident he said ‘No, I didn’t see anything’.   Constable Hettirachchi and the Probationay Constable continued their shift until their rostered finish time of 3am.

At 2.16am the accident was reported to police and other police attended the scene and the 5 injured young people were taken to hospital; two with severe injuries and for one of those the injuries were life-threatening.

Some of the pursuit had been captured on CCTV and at least one of the people in the car reported seeing a police car stop but not offer assistance.   Constable Hettirachchi first denied being there, he then admitted to being involved in a pursuit but said nothing further.  Ultimately, in court, he entered a plea of guilty to the five charges (one for each injured person) of failing to stop and render assistance and he also entered a plea of guilty to a charge of attempting to pervert the course of justice by directing the Probationary Constable not to report the accident.

The total sentence was 3 years imprisonment, to be suspended after 12 months.   The judge explained the effect of that order to (now) Mr Hettirachchi as:

… if you commit another offence which is punishable by imprisonment in that two-year period after the date of your release, you will be brought back before this Court and you may then have to serve the whole or some part of that two years of the sentence which remains unserved.

Discussion

In Salmon v Chute the court set out the elements of the offence:

  • The victim is suffering from “a potential or actual life-threatening injury”;
  • the accused was physically and mentally capable of rendering assistance;
  • they were sufficiently close to be able to provide assistance; and
  • they knew that someone was in need of assistance; and
  • They acted ‘callously’ that is ‘a deliberate and conscious choice not to assist … in circumstances where it would “offend com­mon standards of respect, decency and kindness…’

We can see why the Constable Hettirachchi was guilty of the offence.  The judge noted that only two of the victims had serious injuries and only one had life threatening injuries, but Constable Hettirachchi did not know how many people were in the car.  There had to be at least one (someone was driving) and he had reason to think, given what he’d seen and been told, that there was more than one and the ‘potential’ for life-threatening injury was clear.

Constable Hettirachchi was an on-duty police officer.  He was certainly close enough to render assistance and aware that someone was in need.  I suppose in the right circumstances one might argue that an officer involved in pursuit who comes across the crashed car (but didn’t see the crash) was not ‘physically and mentally capable of rendering assistance’.  That might depend on whether it was a close call and perhaps their past experience.  With greater understanding of disorders such as PTSD it may be that an officer finds that they simply can’t respond – but that was not suggested here.

The final element is ‘a deliberate and conscious choice not to assist … in circumstances where it would “offend common standards of respect, decency and kindness…’   In the case of Dr Dekker, a doctor who was charged (but ultimately cleared) of allegations arising from her failure to render assistance at an accident in Western Australia, we might understand that her decision to drive to the police station rather than render help would not be regarded as ‘callous’ (see Further Legal Ruling Affecting ‘Doctors as ‘Good Samaritans’ – Do I Have To Stop?’ (January 3, 2015)).  This case, however, was quite different.  An on-duty police officer drove past the accident site – twice- and directed his probationary, on her first shift, to do nothing.   It’s hard to imagine any conduct that would be more offensive to ‘common standards of respect, decency and kindness…’

As the judge said:

… there must be sentences of imprisonment. General deterrence looms large in cases of this kind, because the public are entitled to expect not only a serving Police Officer but anyone to come to the rescue in situations like this. In your case, you were a serving Police Officer and the public are entitled to expect a lot more from serving Police Officers, whose duty it is to protect the public and to assist in the enforcement of law.

It is also, of course, totally inimicable to your duty as a Policeman to attempt to pervert the course of justice. These are serious matters and there must be suitable punishment.

(General deterrence is the idea that the sentence is intended to communicate to others the seriousness of the offence to ‘deter’ them from doing the same thing; specific deterrence on the other hand, is considering how the sentence will deter this offender from re-offending.  Specific deterrence was not mentioned here but given Hettirachchi was no longer in the police force and would not be in the same position to offend again, specific deterrence was probably not at the forefront of the judge’s mind).

The other tragic outcome of this case is that:

As a result, [Probationary Constable] Hicks resigned and left the Northern Territory Police Force. As I noted earlier, it was her first ever shift after completing her police recruit training.

A question from my correspondent

In drawing this case to my attention, my correspondent asked:

I teach first aid in Old, SA and NT mainly in the remote border areas.  Am I right to inform the students that once they cross over the NT border they then come under NT Law?

The answer to that question is ‘yes’.