WARNING

Since receiving the original email, and posting my thoughts, I have been sent a copy of the actual SAAS policy. I have to say it’s not nearly as draconian as my correspondent described in his original post. It certainly doesn’t refer to legal professional privilege nor does it say that all information given will be passed to police. It does say that in many cases SAAS will respond without referring matters to the driver for example ‘ 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’. Even in cases where it appears that the driving was beyond that which might be accepted the SAAS say they will seek information and may still seek to have the matter withdrawn.

In light of the actual policy the discussion, below, is an interesting discussion of the right against self incrimination but as noted, I don’t think the policy is really as described so a SA paramedic who receives a notice should certainly want to read the actual policy rather than rely on what’s written here. The discussion here remains most relevant for the driver who actually thinks he or she was doing the wrong thing.

A driver thinks they were driving without due care and in a manner dangerous to others would be advised to offer to pay the notice, as paying an expiation notice is likely to be a much lower penalty, and cheaper, than being prosecuted and it avoids the issue of having to either lie or make admissions.  A driver who thinks their actions were justified is going to have to explain that to someone. If they don’t give the information to SAAS they’re going to have to make their own application to police to withdraw the notice, go to court or pay the notice. Giving the information to SAAS and getting their help to make representations to police is probably more effective than doing it yourself.

The policy does say 

A driver that is charged has all the rights of any public driver charged with an offence and the staff member would be entitled to seek independent legal representation / assistance prior to answering any of the charge/s. 

That would include getting advice before responding to any SAAS request for information.

The original question and answer

This question relates to procedures for dealing with traffic infringement notices in South Australia.  Today’s correspondent says:

…  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).

However, times have changed. 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 (I.e. dry roads, minimal traffic, well-lit etc). This change in policy has a number of staff concerned for the following reasons;

  1. Right not to self incriminate. If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’? Notwithstanding this, if the driving went without incident, could a charge of due care get off the ground based on a photograph alone with the addition of the information we provide? If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?
  2. Right of the employer to demand information from an employee when the employee knows that the employer will provide that information to police as a matter of policy. SAAS informs us that they have sort legal advice (unknown) and from that they say – Legal professional privilege extends to the employee that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.I have a few problems with this… firstly, I thought legal professional privilege only extended to a lawyer that I nominate to represent me. Privilege surely wouldn’t extend to making evidence inadmissible if I provided it to SAAS under the impression that I knew it could fall into the hands of the police.Secondly, for some reason are now casting assertions that I have committed a criminal offence (role reserved for the courts) in which I can be disciplined (using their driver policies). Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? The reason for giving the information about my driving actions and reasons for my judgements seems so ambiguous. Exactly who am I providing it to?
  3. Finally, like all government services – administrative processes take time and staff can find themselves generally being unable to recall an event. Being presented with a photo of your ambulance speeding past a camera car 3 weeks ago when you have do 30-40 urgent drives since makes it impossible to recall.Do we simply answer with the typically ‘dry roads, clear, no traffic’ or put unable to recall… or do we simply refuse to answer full stop. I’m sure writing lies to cover up a memory loss is also an offence in there somewhere as well.

How would you respond to this policy if you were in my shoes?

The Australian Road Rules are incorporated into the law of South Australia by a regulation that rather unhelpfully is called the Australian Road Rules.  The current, South Australian, version of the rules came into force in 2014, replacing an earlier, 1999 version.     A copy of the 1999 version is not readily available so I can’t comment on whether there was a change in law that changed the practice of SAPOL or SAAS.

Privilege against self incrimination.

The right to refuse to answer incriminating questions is a fundamental part of the common law of Australia:  Azzopardi v R [2001] HCA 25; Petty & Maiden v R [1991] HCA 34; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1.  The implication is that if a police officer, rather than an officer within SAAS asked the driver of the ambulance to explain the circumstances, that driver would be entitled to refuse to answer those questions.     That means the answer to the question

If we have been driving in a manner which could reasonably convict us of driving without due care, why would we present ‘cap in hand to the executioner’?’

is

If you were properly advised, you wouldn’t.

The next question, to rephrase it slightly, is

If the driving went without incident, could a charge of careless driving (Road Traffic Act 1961 (SA) s 45) or reckless and dangerous driving (s 46) get off the ground based on a photograph alone with the addition of the information we provide?

Answer, yes indeed.  An admission alone can be sufficient to justify a conviction.   A photo may be ambiguous – ie the photo, alone and out of context, may not clearly show that the driver was driving ‘without due care or attention or without reasonable consideration for other persons using the road’ (s 45) or ‘recklessly or at a speed or in a manner which is dangerous to any person’ (s 46) but the admissions by the driver may remove that ambiguity and allow the police to proceed, and a court to convict.

If I was to refuse to give further information to police via my employer, would there be a reasonable chance of conviction?

That would depend on all the other evidence available, eyewitnesses, weather and traffic records, other traffic observed in the photo etc.   The choice of the defendant to remain silent does not mean there cannot be a conviction but it does mean that the accused has not contributed to his or her own conviction.

Legal professional privilege

Legal professional privilege is a privilege that allows people to seek legal advice without fear that what they tell their lawyer will become available to the ‘other side’ (ie it applies in both civil and criminal matters).   In Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; Gleeson CJ, Gaudron And Gummow JJ said (at [35]):

Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court … The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.

The privilege belongs to the client and only to communication between the client and their lawyer for the dominant purpose of obtaining legal advice.   The client, in this case, is the SAAS.  The client can’t know what happened except by the information from its employees.  It follows that if the client asks an employee to record what happened, and the dominant purpose for doing that is to get legal advice with respect to the client’s position, then privilege would apply.   I would however doubt that this is the case.

The SAAS has received a traffic infringement notice.   It knows that ‘it’ wasn’t the driver and it can identify who the driver was.   To avoid prosecution, SAAS can provide details of the driver (Traffic Act 1961 (SA) s 79B(2)).   It doesn’t need legal advice on that basis and further, the legal advice it would receive would, no doubt, be nominate the driver.

If the SAAS wants to write to police to say that the prosecution should not proceed on the basis that the driver in question was complying with r 306 of the Australian Road Rules, then it may do that and it may seek legal advice on the matter.  In that context, the SAAS wants to know about its legal ‘best interests’ but the best interests of the service may not equate to the best interests of the driver.    If the driver clearly did the ‘wrong thing’ an open and frank disclosure may be best for SAAS, but not for the driver but the lawyer that they get an opinion from is acting for the service, not the driver.

I also query whether the Service is really going to put the driver’s statement before a lawyer for a legal opinion on the matter?   Do they get a lawyer to determine whether it appears an offence has been committed, or does a middle manager make that decision?  If the statement is not put before a lawyer for legal advice, the privilege does not exist.

Finally the privilege belongs to the client (SAAS) so may be waived by the client.   The statement may be obtained from the employee for the purposes of obtaining legal advice and it may be privileged which means SAAS can’t be compelled to reveal what is in that statement, but it doesn’t mean they can’t voluntarily make it available.   My correspondent has said that SAAS promise

… that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place.

That suggests that they will voluntarily hand the material to police, and defeats the purpose of the privilege.  The idea, from the driver’s point of view, is you should be able to go to a lawyer and say ‘this is what happened, am I guilty or not?’   And the lawyer tells you.  If the lawyer says ‘on what you have told me, you are guilty and should pay the relevant expiation fee’ (as it’s called in SA) then you have your legal advice.  The lawyer does not then go and tell the police what you said – that’s the point of the privilege – what you told the lawyer, the lawyer cannot tell anyone else.  If SAAS are really saying what my correspondent suggests, then what they are in, in effect saying, is ‘if what you tell us suggests r 306 should apply, we won’t tell police what you said; but if what you tell us suggests you should not enjoy the benefit of that section, then we will tell the police.’   And that is not helpful.  What the driver wants them to do is get legal advice and if the driver’s statement suggests that there has been a ‘breach of their driving policies or the law’ then NOT hand the statement to police, but if it shows that the driver did everything right, hand that on the persuade the police not to proceed.

Do I have an obligation to provide my employer with this information even though police might not be interested in pressing criminal charges following its disclosure to them? 

It’s hard for me to answer that, that is a matter of industrial law.  As a matter of law all employees must obey the reasonable directions of their employer but whether answering questions that may lead to disciplinary action is a ‘reasonable direction’ I don’t know.  Perhaps other lawyers/readers of this blog can answer that question.

Time and being unable to recall an event.

If you are asked by police about an event that you can’t recall there are really only two answers.  Either ‘I can’t recall’ or ‘I don’t wish to answer the question’. Don’t make up answers and don’t lie.  You will get caught out.   So not, don’t ‘simply answer with the typically ‘dry roads, clear, no traffic’’ and don’t make up a story.   If you can’t recall say that or don’t answer the question.

The one golden thread of English (and Australian) Criminal law

The essential rule in a criminal trial was set out in 1935 in the case of Woolmington v DPP [1935] AC 462 where Lord Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Making assertions that someone has committed a criminal offence is not a role reserved for the courts.  Anyone can make an allegation either to the person alleged to have committed the offence, or to police or other law enforcement agency.  It is the role of the courts to determine whether the allegation is well founded.

If SAAS get a notice from SAPOL that an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ (Traffic Act 1961 (SA) s 79B(2)) then it’s only appropriate that they pass that on.  Whether one thinks that is asserting criminal conduct or not is irrelevant.

If an ambulance vehicle ‘appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence’ then the SAPOL may issue an ‘expiation notice’.    At first instance that goes to the owner (SAAS) who may ask the police to withdraw the notice, or tell the police who was driving, or both.   No doubt if the police refuse to withdraw the notice, SAAS would then identify who the driver is.    Assuming that the notice comes to the driver, he or she has three sensible options (see also SAPOL, Dealing with a notice (28 August 2014)):

  1. Requestion a review and ask the police to withdraw the notice on the basis that they had an exemption under r 306;
  2. Pay the fine or
  3. Elect to have the matter dealt with in court.

If the police decline to withdraw the notice, then the driver is left with option 2 and 3 above.  If the driver elects to be prosecuted it is the police who must prove that r 306 does not, in all the circumstances, apply.   If all they have is the photo, that is all they have.  If, however, the driver has made admissions to SAAS which SAAS has provided to police, or if the driver made admissions in their request to have the matter set aside then those admissions can be added to the police evidence.

Assuming no admissions have been made, or questions answered and all the police have is the photo.  In that case the driver would want to lead some evidence to suggest that r 306 applies, eg a document to prove that they are (or were at the time) an ambulance paramedic and that they were going to an emergency, eg the relevant case sheets and dispatch logs, but depending on the circumstances they may not want to say anything else.

The final question – How would you respond to this policy if you were in my shoes?

I may have given that away in an earlier post – see Investigating Accidents – Learning or Blaming for NSW SES? (December 10, 2016).  In any event it would depend on the circumstances.  My initial reaction would be to say that all I would want to provide police with is, as mentioned above, dispatch records and the case sheet to show that you were indeed responding to an emergency.     If those records don’t show that, then pay the fine.

I would also want to review the photo before saying anything. If you really were driving with due care and attention, the conditions were in the circumstances safe, and the photo supports that – eg it shows an absence of traffic, that you proceeded through a red light at 3am and that your recorded speed was 20km/h – then point that out.  The sooner you say it the sooner the police may withdraw the matter and if they don’t you can show the court you’ve been telling a consistent story.

If you were been driving in a manner which could reasonably convict you of driving without due care and the photo shows that – eg your recorded speed was 100km/h at 3.15pm outside a primary school on your way to a non-urgent medical transfer, pay the fine.  In more ambiguous cases say as little as possible and leave it to the police to prove their case. If the SAAS policy is really ‘that information given to the employer won’t be handed over to police unless they consider that a breach of their driving policies or the law has taken place’ my response would be to demand to see the photo and then get independent advice from the relevant union or a lawyer before responding in any detail.