In an earlier post, THE PRIVILEGE AGAINST SELF INCRIMINATION AND SOUTH AUSTRALIA AMBULANCE (JANUARY 17, 2017) I responded to a paramedics concerns about the approach of SA Ambulance when dealing with traffic infringements issued after red light or speed cameras detected an ambulance entering an intersection against a red light or speeding.  After writing that post I was sent the actual policy document (headed ‘Processing of Expiation Notices & Alleged Driving Offences’ with an effective date of 12 August 2016).   In that earlier post I responded to what people think the policy says, but what does it actually say and is it unreasonable?

The policy starts by saying ‘There is a presumption of guilt if a vehicle is detected by photographic equipment to be driving outside normal legal parameters.’  I’m not sure who makes that presumption, that is whether SAAS ‘presume’ the driver did the wrong thing, or they think that’s the law.  It certainly isn’t the law.  If a photo detects an offence then the police may issue an ‘expiation notice’, but that does not ‘presume guilt’.  If a driver wishes to deny that they are guilty of any offence they are free to elect to be prosecuted and the matter will go to court and the crown have to prove the case beyond reasonable doubt.  The problem for the driver is that the photo in most cases will be sufficient but not always.  Drivers, even of non-emergency vehicles, may have relevant defences and the burden is always on the Crown to prove the case.   What that statement ‘There is a presumption of guilt …’ means is unclear, but it probably isn’t of any practical importance, given the rest of the policy.

The policy says:

SAAS will review and if necessary seek clarification on an expiation notice when it appears that a vehicle:

  • Is speeding and is not using emergency lights.
  • Is passing a red traffic light to enter an intersection or crossing.
  • Shows a speed or driving behaviour that is / or appears to be not reasonable.
  • Does not demonstrate compliance with applicable SAAS Policy and Procedures.

(An ‘expiation notice’ would be called an ‘infringement notice’ in most other jurisdictions).

The Service has an ‘Expiation Notice Declaration Form’ (ENDF) that, in some cases drivers are asked to complete in order ‘to supply sufficient information, so that it is clear from that documentation that a reasonable cause was present to allow for an exemption’. (I note that I do not have a copy of that form).

In the original post, my correspondent said:

SAAS management, on alleged pressure from SAPOL to better explain our actions, have now introduced policies that requires the driver of the ambulance to disclose additional information in support of SAAS’s claim that they were in fact driving with due care and attention

Readers should note that it is not SAAS that ultimately decides whether the exemption contained in rule 306 of the Australian Road Rules applies but the process has to be that SAAS first has to think the case deserves the exemption, then it’s up to the police to agree (or not) and then, ultimately, a court (see Road Traffic Exemption – Who Determines If It Is Reasonable That The Provision Should Not Apply? (May 22, 2016)).   It is not unreasonable for police to insist that if they are being asked to withdraw a notice that the SAAS, and ultimately the driver, confirm that the circumstances warrant the application of r 306.

With that background the policy goes into more detail.  First [4.3.1] says that if it’s determined that the ambulance vehicle was not responding to an emergency, the driver will be asked to complete an ENDF in order for the notice to be issued to him or her, rather than the Ambulance Service.  There would, presumably, be no need to go into details of the nature of the driving at that point as the SAAS is not going to be asking for a waiver.   If the re was no emergency, then it’s a standard traffic offence and the driver will, presumably, pay the fine or make their own representations to police.

Paragraph 4.3.2 deals with an emergency response.  First SAAS say that where ‘notices that are sent to SAAS that show a speed (up to 30kph above a posted speed limit) or a manner of driving that SAAS considers within normal expectations for an emergency vehicle’ then the SAAS will review the photo evidence.  If the photo shows that the beacons were activated and the records show that this was an emergency (P1 or P2 case), the SAAS will deal directly with SAPOL to have the matter withdraw.  My original correspondent said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off.

This paragraph says that is still what is happening when the photo evidence supports the application of rule 306.

If the photo does not show that the beacons were on, then SAAS say they will still ‘request SAPOL to withdraw the notice’ but if SAPOL dispute that on the basis that the beacons were not on then the matter will be referred to the driver who will be asked to confirm ‘that the vehicle lights (and siren) were activated’.  Remember rule 306 of the Australian Road Rules requires that ‘the vehicle is displaying a blue or red flashing light or sounding an alarm’.  A photo can’t reveal whether a siren is sounding or not, and presumably may miss the flashing lights given the ambient light, the angle of the camera and because, by definition, flashing lights alternate between being ‘on’ and ‘off’.  Maybe the driver has turned the switch ‘on’ but the lights aren’t working but he or she does not know that.

Now one could take the point and say ‘I’m not going to say anything, the police have to prove their case’ but what would be the point?  The matter would go to court, the police would tender the photo and the driver would have to lead the sort of evidence that SAAS are trying to collect, ie paperwork to show that it was an emergency response and evidence that the lights and/or siren were on etc.  The police would have to prove, beyond reasonable doubt, that some or all of that were not true.  They probably could not so the case would be dismissed but why go through all that hassle rather than provide that information up front and ask SAPOL to withdraw the notice?

So there’s nothing objectionable in asking the driver to confirm that the lights and siren were activated.   If the lights and sirens were not on, the driver’s going to get an expiation notice because without lights or sirens, r 306 doesn’t apply.

Paragraph 4.3.3 is headed ‘Emergency tasking notices (requiring justification)’ and applies when the photo ‘shows a speed or driving behaviour which would not reasonably be expected by the driver of an emergency vehicle.’

To go back to my original post, the correspondent there said

It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued,

That is again consistent with this policy, though this policy is not referring to ‘internal discipline’ and it is not up to SAAS to determine whether or not criminal charges are pursued, that is a matter for police.

Where the photo shows

a speed (above 30kph over a posted speed limit, but below the internal SAAS speed threshold for justification) or a manner of driving that SAAS considers outside normal expectations for an emergency vehicle.

then the driver will be asked to explain his or her actions.  The policy says that the SAAS team leader and recommend whether or not SAAS should support an application to have the matter withdrawn as well as whether or not as well as whether ‘any further support / actions’ are required. The Team Leader ‘will forward The ENDF to Client Relations. Client Relations will then apply for the notice to be withdrawn.’

This might be an area that reflects the concerns of my original correspondent as it may lead to internal action depending on the reasons given, and here, if the driver agrees that he or she was ‘driving in a manner which could reasonably convict us of driving without due care’ then they may prefer not to give that explanation, for example if the answer is ‘we knew another car from another station was also going to the job and we just wanted to beat them so in effect we were racing’ the driver may prefer not to say that.   That may be an example where the driver choses not to ‘present ‘cap in hand to the executioner’’.  They may prefer to offer no excuse in which case the notice will be issued to them, but they may avoid incriminating themselves in a more serious offence.

Where notices ‘show a speed or a manner of driving that SAAS considers is excessive (above the SAAS internal speed limit threshold for justification) for an emergency vehicle, or three or more “above 30kph” notices in one calendar year’ then the matter will be referred to the Operations Manager who ‘may choose to instigate remedial actions’.  Again that is consistent with my original correspondents comments about internal discipline but note that at this point the driver is not being asked to justify his or her actions or incriminate him or herself.  The matter is being referred to the OM on the basis of the photo evidence and/or the driver’s history.

SAAS has a duty to its staff and the public to ensure ambulance are being driven in a safe way. If the evidence suggests a problem, then it is indeed appropriate for SAAS to consider the circumstances and take ‘remedial actions’ whether they are supportive (for someone who is struggling) or disciplinary for someone who joined the ambulance service because they wanted an excuse to drive fast.  So far nothing objectionable, no provision compelling ‘self incrimination’ and nothing contrary to what was described in the original post as the ‘historical’ position.

What the policy does say is that

The ENDF with cover letter / email will be sent to SAPOL Expiation Notice Branch so that the Manager Expiation Notice Branch can make the determination to withdraw. All other clinical / administrative documentation collated during the review / investigation will be filed with SAAS.

So SAAS is not saying they will send all information to SAPOL, just the ENDF.  If the driver does not want to incriminate him or herself in a more serious matter he or she may put few details on the ENDF.

Similar provisions apply to red light camera detection devices.   Where SAAS can confirm that the driver was responding to an emergency call and entered an intersection at not more than 25km/h, the SAAS will take the matter up with police and the driver ‘will not be required to complete any further paperwork’.

To return to my original post, my correspondent there said

…  historically … when an ambulance vehicle was detected by a road side camera to be committing a traffic offence, South Australia Police (SAPOL) would hand over the traffic infringement notice to South Australian Ambulance Service (SAAS) and they would confirm that the ambulance was appropriately ‘responding’.  After this, enquires would stop and the infringement would be written off. This also typically happened when a camera unit would capture an ambulance driving in manner that could (on face value of a camera’s photo alone) suggest that the ambulance was being driven without due care or attention. It was only in extreme cases (i.e. excessive speeds and alike), that a crew might be internally disciplined but it was very unlikely that criminal charges would be pursued, principally from my understanding, because of a lack of evidence and no incident arising from the drive (i.e. no traffic crash).

I can’t see that the actual policy reflects any change by SAAS.  If the situation fits their defined criteria then they will take it up with SAPOL on the driver’s behalf.  If the situation is outside the parameters or the photos are ambiguous then further explanation is required.  That will no doubt reflect SAPOL’s not unreasonable response that ambulances are not exempt the road rules except as provided for in r 306 so they need some evidence that the requirements of r 306 have been met.  That does not impose the burden of proof on the accused, rather it attributes what we lawyers call an evidentiary burden, that is the accused has to lead some evidence to support their claim (eg the driver says ‘the lights and sirens were, to the best of my knowledge, on’).  The police, on receiving that may well say ‘we can’t prove, beyond reasonable doubt, that those things are not true’ and so the notice is withdrawn.

If we assume that the driver did in fact do all the things required, why would they not say that?  If they don’t explain the position they’re going to get an expiation notice and they’ll either make the representations to police, go to court and ask a magistrate to acquit them, or pay the fine.    Giving an explanation to SAAS and asking them to make representations to SAPOL would seem a more productive use of one’s time and effort.

There is nothing in the policy that I can see that is SAAS demanding information.  They are trying to collect information so that they can make representations to SAPOL and indeed to ensure that policies are being applied, ambulances are being driven with due care, and if a person’s driving is a warning flag of issues in that person’s performance.  Issues like PTSD in emergency services attracts a great deal of attention, if an agency like SAAS tries to ‘not see’ that someone’s actions maybe a problem that is bad for everyone.  But even so there is no ‘demand’, the driver can put as much detail as they want on the ENDF noting that the less detail they put, the less likely it is that the notice will be withdrawn and the more likely it is they will get a notice in their own name that they’ll have to defend or pay.

The previous post, and my comments on it, are only relevant if the driver knows they did the wrong thing. The driver who agrees that he or she was ‘drag racing’ another ambulance or who says “I came to work still hungover and probably still over the limit, I forgot my glasses so couldn’t see properly and I just didn’t see the red light that I went through and nearly collected that group of pre-schoolers”, probably doesn’t want to write that on the ENDF.  If he or she did then they could expect the notice to be withdrawn and a knock on the door from police with more serious charges.  In that case the issue of the privilege against self incrimination is relevant.

But in that case, you may expect other witnesses and when paramedics are registered health professionals, there will be obligations to report impaired performance by colleagues.  The driver who turns up hung-over or drunk should expect that their colleagues will act as will SAAS, but certainly, as a matter of law, they are not required to incriminate themselves.

Conclusion

The actual SAAS policy confirms that in unambiguous cases SAAS will take the issue of traffic infringements up with SAPOL on behalf of the driver.  Where the situation is not clear cut the driver will be asked to provide details because, without them, SAPOL quite rightly are unlikely to withdraw the notice.  This is not demanding that drivers incriminate themselves nor is it unreasonable.

Having said that a driver can chose what he or she writes on the ENDF and is not required to give an explanation that would expose him or her to prosecution for a more serious offence.  But you do have to ask whether someone who is knowingly committing serious traffic offences should be driving an ambulance.