The actions
2.
The Commonwealth is said to be liable for the negligence of the Australian
Federal Police (AFP). It is also said to be vicariously liable for the
actions of Mr Pitkethly, now Sergeant Pitkethly but at the time of the incident
a Senior Constable in that part of the AFP that provides police services to the
ACT and is known as ACT Policing (SC Pitkethly), and his colleague
Ben Willis, also now a Sergeant but in 2001 also a Senior Constable in ACT
Policing (SC Willis). The plaintiff also claims damages for an assault
and battery by SC Pitkethly. I shall refer to the first and third
defendants together as “the police” except where it is necessary to distinguish
the AFP from SC Pitkethly.
3.
The ACT is said to be liable for the negligence of an agency now known
as Mental Health ACT that was in 2001 part of the ACT department responsible
for health and known as ACT Mental Health Services (ACTMH). I shall generally
refer to the second defendant as ACTMH.
4.
Separately from its claim for contribution or indemnity from the
Commonwealth in respect of any damages it is liable to pay Mr Crowley, the ACT
also claims damages from the Commonwealth for economic loss arising from the
ACT’s responsibility to provide ongoing health care for Mr Crowley, which loss is
said to be caused by the negligence of the police.
5.
This judgment makes findings of fact about the relevant events, and
determines that all three of the defendants are liable to the plaintiff in
negligence. It does not apportion liability among the defendants, or assess
damages. It does not deal with other tortious claims made by any of the
parties. All of those matters may be the subject of further submissions to be
made in the light of the findings of fact and law set out in this judgment.
6.
The judgment is organised as follows:
|
Part 1 – Introduction
|
[1]-[18]
|
|
Part 2 – The evidence
|
[19]-[73]
|
|
Part 3 – The events of
December 2001
|
[74]-[445]
|
|
Part 4 – The negligence
claims
|
[446]-[449]
|
|
Part 5 – Claims against
the police – the applicable law
|
[450]-[583]
|
|
Part 6 – The plaintiff’s
claim against the police
|
[584]-[881]
|
|
Part 7 – Claims against
ACTMH – the applicable law
|
[882]-[957]
|
|
Part 8 – The
plaintiff’s claims against ACTMH
|
[958]-[1083]
|
|
Part 9 – Other matters
|
[1084]-[1086]
|
|
Part 10 – Conclusions
and orders
|
[1087]-[1093]
|
7.
The basic facts of the incident
are not in dispute.
8.
Jonathan Crowley (Jonathan)
was at the time of the incident a 34-year-old man who lived in a caravan in his
parents’ backyard in Chapman ACT. He was intelligent and personable, although
somewhat eccentric and a sufferer of obsessive compulsive disorder. As a
result of various accidents before 2001, he suffered chronic back pain, and was
living on a disability support pension provided through Centrelink.
9.
Several days before the incident
in question, Jonathan showed the first signs of what was ultimately recognised
as a psychotic episode. At this point, he was not a patient of ACTMH, although
his brother Mark who lived at the same address was.
10.
On Monday 10 December 2001, family members made contact with ACTMH,
and an ACTMH psychologist visited the family home that night. It was agreed
that Jonathan needed assessment in hospital, and there were discussions about
how this might be arranged. Next morning, Jonathan was observed acting
strangely by an ACTMH employee, but this was not reported to anyone for two
hours. No hospital admission was achieved before Jonathan left the family home
on the Tuesday morning carrying a kendo stick, an instrument consisting of
several pieces of bamboo held together by some sort of covering.
11.
For some time after leaving home, Jonathan
wandered the streets near his home, and interacted with various members of the
public working or otherwise present in the area. Some of them, and others who
observed his progress, reported his behaviour to the AFP. As a result of these
reports, SC Pitkethly made a number of enquiries in the Chapman area but did
not find Jonathan.
12.
Police officers assembled at the Chapman
shops car park for a briefing. A report of a recent sighting was relayed to
those police officers, and a police vehicle driven by SC Pitkethly and
also containing SC Ben Willis left the car park to follow up the report. Senior
Constables Pitkethly and Willis came upon Jonathan in Doyle Terrace, Chapman. SC
Pitkethly stopped the vehicle, and both police officers got out. They engaged
with Jonathan, and shortly thereafter SC Pitkethly shot Jonathan in the neck. Jonathan
sustained injuries as a result of being shot that left him suffering
quadriplegia.
13.
This basic narrative, however,
glosses over many aspects of the incident that are in dispute, and does not
address the interpretation or implications of facts agreed or disputed. As
well, of course, there has been argument about the legal significance of many
of the events in terms of founding any liability on the part of any of the
defendants, as well as about whether any of the defendants owed any duty of
care to Jonathan.
14.
The shooting of Jonathan Crowley
was undoubtedly a tragedy, not just for Jonathan himself but for his parents,
his brothers and sisters and other family members. It became apparent during
the trial that the shooting was also a tragedy for others involved, in
particular SC Pitkethly who shot Jonathan, the two police officers who
witnessed the shooting, and the civilian witnesses to the shooting. Several of
them broke down while giving evidence, even though it was more than seven years
after the event.
15.
It is appropriate to record that
it is not only the Crowley family, and Jonathan Crowley in particular, who have
been permanently damaged by these events.
16.
It is also appropriate to note
that inevitably, the form and scope of these proceedings limit the enquiry into
where in a chain of events there were duties of care, and breaches of those
duties, sufficient to found liability for the damage that Jonathan has
undoubtedly suffered. Findings of negligence on the part of any of the
defendants do not mean that no one else played a role in the unfortunate chain
of events that resulted in the tragic outcome.
20.
I comment on some of the witnesses in the course of discussing their
evidence, but it is useful to comment here on several of the key witnesses.
First I should say that, with minor qualifications noted in this judgment, all
the witnesses impressed me as honest people genuinely trying to give truthful
evidence. The differences in their recollections of events was in some cases
stark, but this did not seem generally to indicate dishonesty (although there
was a degree of evasiveness that I have also noted in particular contexts). Rather,
the difficulty seemed to arise from the time that had elapsed since Jonathan’s
shooting (six or seven years, depending when witnesses gave their evidence)
combined with the fact that either the subject of their evidence was not of
great moment to the witness when it happened or, for those for whom the
relevant events were dramatic as they happened, their recollections have over
the years developed a life of their own.
21.
This is a case in which, I suspect, many of those involved have asked
themselves whether Jonathan’s tragedy would not have happened if they had done
something different on 11 December 2001, and whether, even discounting
hindsight, they should have done something different that day. Keith Crowley
hinted at this when he described trying to reconcile some of the things he was
told about what had happened on the day of the shooting with how he believed he
would have responded if those things had in fact happened.
22.
There was certainly scope for a fair amount of guilt to be spread around
the participants in this case. Clearly, in such circumstances, there is an
incentive for people to remember things in the way that they find most
comforting and most defensible. It is likely that such a tendency has, in this
case, been reinforced by the repeated re-tellings of their stories that have
been required of the key witnesses.
23.
For instance, the two police officers engaged in the shooting took part
in two police interviews each shortly afterwards. One of them underwent
extensive counselling that involved re-telling his story. An interview with SC
Willis was recorded for police training purposes. Each of the two officers
gave evidence at the trial over several days (four days for SC Pitkethly and
two days for SC Willis), and was cross-examined at length by counsel for the
plaintiff and counsel for ACTMH. It is fair to say, while rejecting the
specific attacks on SC Willis’s credibility made by counsel for ACTMH, that SC
Willis had a discernable tendency (which may reflect a sense of guilt over the
outcome of events) to remember his own actions in a favourable way that was not
always borne out by more objective evidence; I have rejected aspects of SC
Willis’s evidence in relation to several important issues. SC Pitkethly,
on the other hand, seemed more satisfied that what he had done was the only
thing he could have done, and less inclined to put any kind of spin on it; this
suggested a certain lack of imagination on his part, but did not require the
same level of scepticism in assessing his evidence.
24.
Keith Crowley took part in two police interviews. No doubt he also told
his story on a number of occasions to family members, friends and possibly
medical professionals. He gave evidence over two days and was also
cross-examined at length. Mr Crowley was 75 years old when he gave evidence at
the trial—his age and the burdens he has shouldered since Jonathan’s shooting
have no doubt also had an impact on the clarity of his memory for the events of
December 2001.
25.
For these reasons, I have considered that the fact that the evidence of
the key witnesses tends generally to favour their own interests is simply an
inevitable outcome of the circumstances of this case rather than any indication
of a casual or dishonest attitude to the truth, and I have seen my task not as
trying to work out who to believe but as trying to sort out the most probable
course of events from the multifarious confused and inconsistent versions of
events that have been presented to me.
26.
Documentary evidence totalling nearly 1,400 pages was also put before
me.
27.
The documents included transcripts of conversations and interviews
conducted by police investigators within two or three months after the shooting.
Different names are used for different kinds of police interviews, but these
are irrelevant for present purposes—I refer to them all as police interviews
and the transcripts as interview transcripts. The police interviews involved
many of the people who gave oral evidence as well as a number of civilians who
had observed Jonathan’s behaviour before the shooting, and several AFP members and
employees, ambulance officers and ACTMH staff who were involved with Jonathan’s
case before or after the shooting. Part 2 of Appendix A lists other
participants in the events of the few days leading up to the shooting whose
police interviews were transcribed and put in evidence.
28.
Two kinds of police records were in evidence. These consisted of:
(a)
audio recordings of communications (via police radio or telephone) made
to and from the police communications centre (Communications), and
transcript made from those recordings (Communications transcript); and
(b)
a report apparently generated from some kind of log of Communications
activity, showing second by second information about the locations and
activities of mobile units (police officers in vehicles) as well as “CAD
operator” comments providing substantive information about reports received
from mobile units and others (the CAD log).
29.
No evidence was given of how these records were generated or, in
particular, of how reliably the times recorded reflected the actual timing of
the events recorded (for instance, whether the CAD log purported to show the
time a phone call was made or the time the operator recorded that it had been
made).
30.
In relation to the Communications records, the original audio recordings
were apparently held on what counsel for the police described as “a large piece”
of “very sophisticated equipment that records a whole lot of things and ...
requires a special operator”. Instead of the equipment being brought to court
to play “the original digital file”, a CD was produced containing the relevant
information from the digital file, and a transcript of the recording it
contained was also prepared.
31.
There were, however, two problems with the CD and transcript. One was
that for some reason, the CD and the transcript as produced in court were not
aligned, in that some of the later material appeared in a different order on
the transcript from its order on the CD. The content of the several different
conversations recorded and transcribed did, however, enable the making of a
rationally-based assessment of the most likely correct order for the material.
32.
More significant was the absence of time stamps for much of the
material. The material had been extracted from a much larger body of material
reflecting all matters being dealt with by Communications on the day concerned,
and it seemed that in the course of extracting the material many of the time
stamps (which appeared to be applied at one-minute or shorter intervals) had
been lost, possibly for any conversation that was not the first one to begin
after the most recent time stamp, but possibly on an even more random basis.
This meant that the most that could be said about any particular conversation
was that it had taken place between the two surrounding time stamps. Where the
gap between the two was substantial (in one case it was 35 minutes), this
placed a major obstacle in the way of determining when the conversations
concerned had taken place and where they fitted into the broader chronology.
33.
During the trial, relevant parts of the Communications audio recording
were again extracted and a new transcript prepared, which included some
material not in the original transcript and omitted some material that had been
included. The new transcript more clearly identified individual conversations,
but had no time stamps at all, and the conversations transcribed were still not
necessarily set out in the correct order (for instance, the transcript of the
police broadcast of a particular sighting of Jonathan came before the transcript
of the report to the police of that sighting by the member of the public
concerned).
35.
Some of the deficiencies in the evidence were not of major importance,
but some of them have significantly complicated the fact-finding task.
36.
Two apparently relevant documents referred to in Keith Crowley’s
evidence were not tendered, for no identified reason. These were Telstra records
for the Crowley home and Keith Crowley’s mobile phone, and some kind of report
prepared by a Michael O’Connor who had visited the Crowley home during the
Tuesday morning.
37.
I have commented at [640] below about what I consider an odd approach to
some relevant AFP documents.
39.
ACTMH called only two witnesses; both were called as expert witnesses,
although in one case the evidence admitted was not admitted as expert evidence.
40.
The evidence of ACTMH’s involvement with Jonathan (apart from that given
by members of the Crowley family) consists largely of ACTMH records and the transcripts
of police interviews with some of the staff members concerned, which were
tendered by the plaintiff.
41.
This has had several significant effects. There was no
cross-examination of the ACTMH staff (other than Jason Morris) who made
statements to the police. There was little or no useful explanation of:
(a)
the organisational arrangements under which mental health services were
provided to the ACT community by ACTMH;
(b)
the composition of teams or the seniority or professional status of
staff members;
(c)
the movement of information within and between teams;
(d)
the accessibility of information entered in ACTMH records; or
(e)
the records themselves, and how those records, particularly time
information attached to them, should be interpreted (apart from the ambiguous
comments mentioned at [106] below).
42.
Some of the ACTMH records refer to “CATT” (apparently Crisis Assessment
and Treatment Team), but how many and which of the relevant ACTMH staff were
strictly speaking part of a Crisis Team is not apparent. Accordingly, some of
my references to the Crisis Team (which I have used as a more meaningful term than
“CATT”) may not be strictly accurate.
45.
Mr Franchie’s role in the interview is exemplified by his response when Mr
Morris was explaining how he had perceived Jonathan’s behaviour outside the
Crowley home and why he hadn’t felt it necessary to go inside and talk to the
family. At that point Mr Franchie interrupted with “I’m sure if you had
reason for concern you would have called the police ...”.
48.
Counsel for the police noted that ACTMH’s failure to call witnesses who
could have given relevant evidence had particular significance under Jones v
Dunkel (1959) 101 CLR 298, referring me to the formulation of the NSW Court
of Appeal in Manly Council v Byrne [2004] NSWCA 123 at [51] as follows:
Thus, if a witness is not called two different types of
result might follow. The first is that the tribunal of fact might infer that
the evidence of the absent witness, if called, would not have assisted the
party who failed to call that witness. The second is that the tribunal of fact
might draw with greater confidence any inference unfavourable to the party who
failed to call the witness, if that witness seems to be in a position to cast
light on whether that inference should properly be drawn.
51.
Seven expert witnesses gave evidence during the trial, two in relation
to mental health issues including how a properly functioning publicly-funded
mental health service might be expected to operate, and five in relation to the
police response to Jonathan’s emerging crisis. One other witness was initially
put forward as an expert. In the end, the only evidence from him that was
admitted was not given in any expert capacity (see [333] below).
52.
This case was originally listed to be heard by another Judge, and first
came before me on the day the trial was to start. Previous case management had
not apparently involved any consideration of the options for trying to find
some common ground among the expert witnesses, although it is fair to say that for
the reasons set out at [56] to [65] below, options such as the concurrent
hearing of expert testimony (see Div 2.12.2 of the Court Procedures Rules
2006 (ACT) (CPRs)) may in fact have been more or less
unmanageable.
53.
Before discussing the specifics of the main expert evidence, it is
useful to recall the requirements for expert evidence to be admissible, as set
out by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001]
NSWCA 305 at [85] as follows:
In short, if evidence tendered as expert
opinion evidence is to be admissible, it must be agreed or demonstrated that
there is a field of “specialised knowledge”; there must be an identified aspect
of that field in which the witness demonstrates that by reason of specified
training, study or experience, the witness has become an expert; the opinion
proffered must be “wholly or substantially based on the witness’s expert
knowledge”; so far as the opinion is based on facts “observed” by the expert,
they must be identified and admissibly proved by the expert, and so far as the
opinion is based on “assumed” or “accepted” facts, they must be identified and
proved in some other way; it must be established that the facts on which the
opinion is based form a proper foundation for it; and the opinion of an expert
requires demonstration or examination of the scientific or other intellectual
basis of the conclusions reached: that is, the expert’s evidence must explain
how the field of “specialised knowledge” in which the witness is expert by
reason of “training, study or experience”, and on which the opinion is “wholly
or substantially based”, applies to the facts assumed or observed so as to
produce the opinion propounded. If all these matters are not made explicit, it
is not possible to be sure whether the opinion is based wholly or substantially
on the expert’s specialised knowledge. If the court cannot be sure of that,
the evidence is strictly speaking, not admissible, and, so far as it is
admissible, of diminished weight.
54.
It is also useful to note that the requirements set out by Heydon JA
have been identified as a “counsel of perfection”, and that as Branson J said
in Sydneywide Distributors Pty
Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 (Sydneywide
Distributors) at [7]:
As a reading of his Honour’s reasons for judgment as a whole
reveals, his Honour recognised that in the context of an actual trial, the
issue of the admissibility of evidence tendered as expert opinion evidence may
not be able to be addressed in the way outlined ...
55.
There are several respects in which Heydon JA’s requirements have not
been properly met in this matter, but in the absence of any relevant objections
from other parties, I have not excluded affected evidence or particular parts
of it. Rather, I have adopted the approach outlined by Weinberg and Dowsett JJ
in Sydneywide Distributors at [87]:
once the witness’s claim to expertise is made out and the
relevance and admissibility of opinion evidence demonstrated, such evidence is
received. The various qualities described by Heydon JA are then assessed in
the course of determining the weight to be given to the evidence. There will
be cases in which it would be technically correct to rule, at the end of the
trial, that the evidence in question was not admissible because it lacked one
or other of those qualities, but there would be little utility in so doing.
58.
Secondly, there are doubts in my mind about the existence of the
relevant fields of “specialised knowledge” claimed in relation to the experts
called in this case. My concerns are explained below.
Mental health experts
60.
While both the medical witnesses legitimately claim expertise in the
specialist field of psychiatry, and both have had experience as senior managers
in publicly-funded mental health services, there is a question in my mind about
whether the running of publicly-funded mental health services is itself a field
of “specialised knowledge”. While issues were raised about the diagnosis of Jonathan’s
problem and the urgency of his admission to hospital (clearly matters for
expert psychiatrists), those issues were no more vital than a separate set of
issues relating to dealing with patients and their families, the respective
roles and responsibilities of clinicians and families, and proper records
management and information-sharing in a mental health crisis team. Some of
those latter issues are not necessarily the kinds of issues that would
routinely exercise the minds of senior psychiatrists in a mental health
service, at least not until after a disaster. Furthermore, while it was clear
that both medical witnesses were well qualified and respected in terms of their
medical knowledge and experience, and that each of them had been in some form
responsible for a publicly-funded mental health service, there was no evidence
before me of their expertise (as distinct from their experience) in running
such a service.
62.
There are many very experienced police officers around, and some of them
are no doubt recognised by their peers as having outstanding skills, knowledge,
experience, insights and perhaps even instincts in policing. In some cases
this recognition will have been demonstrated by promotions, or by particular
police awards. In many other cases there will not, I suspect, be any way of
identifying whether a particular police officer is recognised within the police
community for particular “specialised knowledge”, and many of the most
effective and skilled police officers might be hard pressed to turn their
training, experience, insight and instinct into any kind of theoretical
exposition of the requirements for “good” policing. That is, the
identification of an expert in general duties policing is not straightforward.
63.
Perhaps reflecting the lack of any real academic discipline of “policing”,
the evidence given by the expert witnesses on many topics did not seem to me to
be based on a body of technical knowledge to which I would otherwise have had
no access; rather, it seemed to amount to using a degree of common sense and
good judgment in applying to real-life situations the AFP principles and
policies put in evidence, being principles and policies that were developed and
drafted so as to be accessible to and applied by general duties police officers
in their day-to-day work.
64.
With one exception (Darren Rath, still a senior member of the AFP), the
witnesses called to give evidence about policing had left a career in active
policing some time previously. The two who had done so relatively early (Mr Jennings
and Mr Smith) had worked as consultants in fields often described as “security”,
and conceded that providing security advice to paying clients is very different
from engaging in (or even being responsible for) day to day community policing
on the streets; not only were the witnesses not engaged in such activity, but
generally that was not the kind of activity they were in the business of giving
advice about either. The two who had retired from senior positions in the
police force (Mr Hazzard and Mr Schuberg) had spent much of their senior
careers in areas not involving community policing.
66.
There is a further complication about Federal Agent Rath’s evidence,
although I note that no objection was taken to it on these grounds. Federal
Agent Rath included in his written report, and in his oral evidence, some
evidence that was appropriately given in his capacity as a senior AFP officer,
such as about policies and procedures of the AFP, and the content of training
that is given to AFP officers.
67.
The rest of his evidence, being opinions about the appropriateness of
the actions of Senior Constables Pitkethly and Willis, was genuinely in the
nature of expert evidence, and that evidence might have been assessed in the
light of the fact that Federal Agent Rath was, in effect, an officer of the
party which had engaged him to give expert evidence, namely the AFP. However, Federal
Agent Rath had agreed to abide by the Expert Witness’s Code of Conduct, and I
saw no indication that in giving his expert evidence he was acting otherwise
than as an independent expert.
68.
The issues surrounding Federal Agent Rath’s evidence mirrored those
relating to the evidence of Merv Carnall, now an AFP Sergeant attached to the
Specialist Response and Security Tactical Team, who was the officer in charge
of the Operations Support Group (OSG) training activity on
11 December 2001 and who brought two OSG teams to Chapman to help in the
operation to deal with Jonathan. Sgt Carnall was called by the plaintiff; he gave
evidence of his role in the events of that day and evidence of AFP policies,
procedures and operating arrangements, but also gave opinion evidence dealing
with some of the issues covered by expert witnesses who gave evidence about
policing. He had not been formally qualified as an expert witness, and nor had
he agreed to the Expert Witness Code of Conduct; however, there was no objection
to his evidence on that basis.
71.
In the event, choosing among the views of the experts has not caused me
any particular difficulties, for the following reasons.
72.
First, given the nature of Mr Smith’s experience and claimed expertise, I
have placed little reliance on his evidence, except in relation to one or two
matters that fall squarely within his defensive tactics expertise and are not
the subject of other evidence. His support of the plaintiff’s other two
expert witnesses neither adds to nor detracts from their evidence. Secondly, I
have maintained a sceptical approach to the evidence of Mr Schuberg, for the reasons
mentioned above relating to the approach he took in giving his evidence. Finally,
as will become apparent, once the relevant facts had been clarified, the areas
of disagreement among Mr Hazzard, Mr Jennings and Federal Agent Rath about
matters properly the subject of expert opinion rarely involved anything more
than differences of emphasis and different degrees of willingness to concede
that particular options were available or preferable, so there were few if any
difficult choices to be made among the views they expressed.
75.
First come the events of the day before the incident (Monday), and the
early morning of the Tuesday on which the shooting took place. These mainly involve
the Crowley family’s recognition of Jonathan’s deteriorating mental state, and
their dealings with ACTMH about a mental health assessment of Jonathan. As
well, on Tuesday morning an ACTMH staff member observed Jonathan acting
strangely in the driveway of his parents’ home.
76.
Next is the period during which both the AFP and eventually ACTMH became
aware of an apparently disturbed person behaving in a threatening way in the
Chapman area. After Jonathan left his parents’ home, he spent some time
wandering through the streets of Chapman and possibly further afield. His
unusual and in some cases threatening activities were reported to the police by
a number of concerned citizens, and the police in turn sought information about
him from ACTMH. The ACTMH staff member, Jason Morris, also reported his observation
of Jonathan to other ACTMH staff.
77.
The final period covers the police operation, beginning with the
assembling of various police officers at the Chapman shops and ending with Jonathan’s
shooting.
78.
The main protagonist in each act of this tragedy is Jonathan Crowley,
but with several minor exceptions he has a non-speaking role. Even when he
does speak, he gives little or no insight into his motives or intentions, presumably
because of the depth of the psychosis affecting him, a psychosis the existence
or intensity of which has not been challenged in any way. The main supporting
characters, however, are different in each act, and it may be that the lack of
continuity in the community’s response to Jonathan Crowley’s crisis is one of
the keys to this tragedy.
79.
Jonathan gave brief evidence. He conceded that he gets confused between
what he can actually remember of the earlier events of the day he was shot, and
what people have told him happened, and that his recollection of the events of
the day is in many respects unreliable.
80.
Jonathan said that on the day he was shot, he was having “some kind of
nervous breakdown and some kind of religious experience”. His memory of the
shooting was as follows:
I remember going for a walk. All I remember of the shooting
is, I was walking along a footpath. I stepped down where the kerb, on the
footpath, and a police car slammed on its brakes and pulled up right in front
of me just missing me. I felt a little agitated and I waved my bamboo cane in
the air and brought it down to my side and then the driver’s side policeman
hopped out and shot me.
81.
Before considering the events of Monday and Tuesday in detail, it is
necessary to provide some background about Jonathan Crowley and his experiences
and activities in the years and then the weeks leading up to the shooting. Most
of this information was provided at the trial by his father Keith Crowley.
82.
Jonathan Crowley was born in 1967, the sixth of seven children of Keith
Crowley, now a retired school principal and Paloma Crowley, now a retired
school librarian. He was brought up and educated in the Roman Catholic faith,
and as an adult his faith remained important to him. After completing secondary
school in the early 1980s he took a variety of jobs, including as a book
salesman and as a security guard, but his real interests were in writing and
politics. He had political aspirations, and was particularly interested in the
possibility of a Bill of Rights for Australia. Jonathan was a big man, over
180cm (6 ft) tall, and at the time of the shooting he weighed around 100kg.
His mother gave evidence that Jonathan was a spiritual man who did not like
violence; he was gentle and caring and made friends easily.
83.
Over the years Jonathan had suffered a number of mishaps, including one
assault, which resulted in significant injuries and eventually chronic back
pain. He was treated by various specialists, including a psychologist, and
prescribed analgesic medication. He also developed some mental health problems;
he was prescribed antidepressant medication for intermittent depression, and
also suffered from an obsessive compulsive disorder. By 1997 Jonathan was
unable to work, and received a disability support pension.
84.
Jonathan had used cannabis, apparently in fairly high quantities, for
many years; this was partly recreational use, but he also found the drug
helpful in pain management.
85.
At the time of the shooting, Jonathan was living in a caravan in the
backyard of his parents’ home in Chapman. He had recently moved back to live
with his parents following a road accident in which he had received injuries
that made it difficult for him to look after himself.
86.
Unfortunately, some of Jonathan’s mishaps had involved him in dealings
with the police, and, whether rightly or wrongly, he believed that on some
occasions he had not been properly treated by the police. His father gave
evidence of two relevant incidents.
87.
Some years before the shooting, Jonathan’s car had been broken into
while he was working as a security guard, and items had been stolen. As a
result of inconsistencies between his report to the police and the report
prepared by the police, his employment as a security guard had been terminated;
Jonathan blamed the police officer concerned, whom he believed had not
described the situation properly in his report.
He was still in a lot of pain, and the policeman started to
cross-examine him on distances and he’d never been very good on distances and
he felt that he was being put at a disadvantage and being asked all these
distances and he was unable to answer adequately.
89.
Subsequently Jonathan was advised that “the two parties had been found
50% each guilty of careless driving”, a decision which he did not take well
because he was “adamant that the other driver was completely at fault”. Mr
Crowley described Jonathan as “annoyed” about this incident.
90.
Mr Crowley conceded that in both situations, Jonathan had felt that the
individual officers had dealt unfairly with him, and he agreed in cross-examination
that, in counsel’s words, Jonathan was “very concerned about the rights of the
individual in the interface between the individual and authority figures”. Mrs Crowley
gave evidence that Jonathan was “passionate about the rights of the individual”
and about things like a Bill of Rights, but denied that “when it came to the
interface between the individual and authority or authority figures, [he] was
on the side of the individual”.
91.
Mrs Crowley said that Jonathan’s dealings with the police had caused
Jonathan disappointment, and conceded that, “to a certain extent”, Jonathan had
“a significant dislike of the police”. She said, however, that if she and
Mr Crowley had felt obliged to call the police, they would not have told
the police to be careful because Jonathan didn’t like them, they would have
helped the police.
92.
Jonathan’s political writings and interests indicated a concern with
ensuring the proper exercise of the powers conferred on law enforcement
authorities. In cross-examination, Jonathan agreed that one of the reasons he
was keen to have a Bill of Rights in Australia was to ensure that the
individual is not treated badly by the authorities. However, asked whether, in
a fight between an authority figure and “the little man”, he would side with “the
little person”, Jonathan pointed out that the Bill of Rights is also about
responsibilities. Jonathan asserted that he had nothing against the police
individually, and was concerned more for the constitution, and that he was
always polite and helpful. Pressed by counsel to agree that as at December
2001 he had “a significant dislike for the police”, Jonathan said “I would say
no to that. I would say more so I had a significant dislike of some of the
laws in which the judicial system has to act upon”.
93.
I have provided some detail of the evidence before me about Jonathan’s
attitude to police because Jonathan and both his parents were subject to
extensive cross-examination about the topic. Although they were all inclined
to minimise Jonathan’s antipathy to the police, some member of the Crowley family
told Jon Wells on the night before Jonathan was shot that he “did not get on
with police” (at [115] below), and it seems that Keith Crowley told Andrea
Twell on the Tuesday, just before the shooting, that Jonathan had “a
significant dislike of the AFP” (at [171] below).
95.
The relevance of that finding is not necessarily obvious.
96.
First, my finding about Jonathan’s general attitude does not of itself
prove anything about the nature or intensity of Jonathan’s reaction to the
presence of police in Doyle Terrace. In particular, it does not confirm the
police claim that Jonathan was unexpectedly and exceptionally aggressive, and
effectively irresistible. However, the information may be relevant to an
assessment of the extent to which the police directly contributed to Jonathan’s
reaction to them and the extent to which his behaviour was inevitable simply
because they were police.
97.
Secondly, as will become apparent, ACTMH was aware from the night before
the shooting that Jonathan did not get on with police, but this was never conveyed
to the police, if only because ACTMH never identified Jonathan to the police
and never gave the police any information about Jonathan. The possession of
the information by ACTMH, and its failure to pass that information on, are
unaffected by the origins or exact details of the frame of mind that had given
rise to that general statement, or indeed by the accuracy of the statement at
all.
99.
Mr Crowley said that he had not concerned himself with the kendo stick that
Jonathan kept in his caravan, a bamboo stick used in the practice of the
martial art known as kendo. This stick was referred to around the Crowley
household as the “bok”, but it seems that sticks of this kind are also known as
“kendo sticks”, “kendo swords” or “kendo shinai”. Jonathan had been interested
in kendo when he first left school, but in recent years, Mr Crowley said, Jonathan
had taken the kendo stick with him on walks, using it both as a walking stick
and a possible weapon against the brown snakes that are found in Chapman
(although more often Jonathan would take his dog instead). The kendo stick was
said by Mr Crowley to be a training weapon designed so users would not
injure each other. Andrew Oakley, one of the witnesses who encountered
Jonathan on the Tuesday, described the stick as a practice or training sword.
101.
Mr Crowley expressed surprise when the kendo stick was produced in
court. He said that when he had last seen it, three or four years before the
shooting, the bamboo had been covered by some sort of material along its whole
length. He also said that he had never seen writing on the kendo stick; when he
saw the kendo stick in court, Mr Crowley expressed some surprise at the
writing, and said “I would have had the police out myself, your Honour, if I’d
seen that”.
102.
Apart from the Crowley family, the significant players in Jonathan’s
emerging mental health crisis were the staff of ACTMH. In those circumstances,
the absence of comprehensive evidence on behalf of ACTMH (see [38] to [49] above)
is notable.
103.
The following general background about the organisation and operations
of ACTMH has been gleaned from the small quantity of relevant material that was
in evidence.
104.
In his police interview, Jason Morris explained that ACTMH consisted of
four regional teams (City, Woden, Belconnen and Tuggeranong) plus units in The Canberra
Hospital (referred to in some documents as “TCH”) and at Hennessy House in
Belconnen.
105.
In one of the police interviews which he attended, John Bubear (described
as an ACTMH team leader) gave very general information about the physical
set-up in the premises from which the Woden Team operated, but whether the Woden
Team was the Woden Crisis Team or a larger group that included one or more
Crisis Teams was not clear. Mr Bubear explained that the local mental health
team (presumably the Woden one rather than one covering the whole of Canberra)
worked in a converted house. Staff members rotated through the triage area and
the Crisis Team. All phone calls came through one single point and were taken
by the triage staff, of whom there were two working on weekdays. The triage
staff wore headsets so didn’t hear other people’s conversations. If a record
that had been entered in the system needed to be brought to the attention of
the Crisis Team, the triage staff member had to print out the record and walk
with it to the Crisis Team. Mr Bubear noted that this could cause time delays
in passing on information.
107.
Members of the Crowley family were among the first people to realise
that Jonathan, who had been somewhat eccentric for years, had suffered a sudden
deterioration in his mental health. Before the events of this week in
December, Jonathan had not been a patient of ACTMH. Nor had he had any
psychiatric admissions, or been seen by any specialist psychiatrist. Mr
Crowley said that although Jonathan had been functioning reasonably well as
late as the week before the shooting (he had, for instance, attended his local
Labor Party branch meeting and presented a report about matters to do with an
Australian republic), things had changed dramatically by the day before the
shooting.
108.
Very early on the Monday morning, Jonathan woke his parents up to tell
them that he was Jesus Christ, and made comments to the effect that “we had
1,000 years to solve the problems of the world”. Mr Crowley said that nothing
like this had happened previously, and that Jonathan “wouldn’t have been game”
to come into his parents’ bedroom at hours like 5:00 am. Mr Crowley wanted to
go back to sleep, and told Jonathan to go back to bed.
109.
Mrs Crowley, however, realised that the problem was potentially serious,
and told her husband that he needed to go and see what was going on. Mr
Crowley talked to Jonathan in the caravan, and then contacted Jonathan’s
general practitioner Dr Hislop later that morning. Dr Hislop said
that Jonathan’s behaviour as described by Mr Crowley was outside his
experience but indicated a serious psychiatric problem.
110.
Later on the Monday morning Jonathan joined his parents and his sister
on the front verandah of their home; he told them that there had been a
miracle, that he was healed, that he would no longer need his marijuana, his
cigarettes, or his medication (Panadeine Forte and Aurorix); he put all of it,
including his prescription medication, into the bin.
111.
By Monday evening Crowley family members were quite concerned about
Jonathan’s mental state. His sister Kate Crowley, a medical practitioner (then
working at The Canberra Hospital), telephoned ACTMH and asked for someone to visit
and assess Jonathan’s condition. That call was recorded by ACTMH at 6:53 pm as
follows:
Call from sister concerned that this man who lives with his
aged parents is quite delusional. He apparently believes that he is Jesus, has
exhibited poor judgeemnt [sic] and is neglecting his self care. [T]he sister is
happy to be present when we assess him. He has a long Hx of THC abuse but no
previous psychotic episodes.
112.
The record also shows that Jonathan
was assessed as priority 2 (for response within 12 hours), at moderate
risk of accidental self-harm and “non-compliance/absconding”, and at low risk
of deliberate self-harm and harm to others. Boxes for “First Onset Psychosis”,
“No Evidence of Mental Illness” and “Is the client currently depressed?” were
all marked “No”. Questions about any history of violence and whether Jonathan
was currently violent were answered “No”, but the availability of weapons was
said to be “Unknown”. Action was set out as “CATT to assess tonight.” The
negative response to the “First Onset Psychosis” box, combined with the note
that Jonathan had “no previous psychotic episodes”, is notable.
114.
Keith Crowley said that it was clear to him by the time Mr Wells
arrived that Jonathan was “mentally quite unwell”. Mr Wells spoke to Jonathan,
and Mr Crowley described the subsequent discussion around the dining room table
involving himself, Jonathan’s mother Paloma, his sister Kate, and Jon Wells, as
follows:
[Jon Wells] certainly put the case that he was going to need
help, which we agreed, and that he should be admitted to hospital and because
it was getting late at night we suggested that he might wait till the morning,
because we couldn’t see that he was a danger to anyone, or to himself. He was
just so happy and peaceful. Jon Wells agreed and Kathy agreed, my wife, that
we’d leave it till the morning, and that I’d keep a close eye on him. I stayed
with him till he went to sleep.
Dom to Jon. House is first on left at end of Bertel that
comes directly off Perry Drive. Jon was in his caravan with two friends when I
arrived. I was greeted by his brother Mark (who also lives with his parents)
and sister Kate. I briefly met Jon, a strongly built man of about 180 cm with
dark curly shoulder length hair. Jon was very expansive and familiar. He told
me that he had been depressed for 17 years but now was fine. He hugged me and
stated to me that we had 1000 years to clean up the world and that he was going
to establish a council of prophets early in the new year to get the process
going and welcomed me to his circle. He introduced me to his two friends James
and (Saint) Nicholas and pointed to his brother Mark and talked about Mark on
the road to Damascus. He said that he had met Judas yesterday and that he had
gone and hung himself but that he believed his soul was saved because he had
shown remorse through the act of hanging himself. He stated that he had been
tussling with the devil who had crushed his hand and that he had healed his
hand by immersing it in cold water. Jon then went back to his caravan with his
friends who told his parents, Kate and me that they would quickly say goodbye
to Jon and send him in to see us.
I then discussed situation with Jon’s parents and sister
Kate. They advised me that he has not presented like this before. They stated
that Jon had been using marijuana since he was teenaged and that he had a
history of having bad accidents. They advised that he did not get on with
police, particularly since a road accident he had recently which he and his
family believe was clearly the fault of the other driver but for which Jon got
blamed. They advised that when Jon is coming off marijuana he is usually angry
and aggressive, punching holes in walls as he demands money. Jon told them he
threw his marijuana in the bin this morning and he shows no signs of aggression
or anger. They said that Jon has always been charismatic and had lots of
friends but that he has never really had a career. They also advised that he
has a history of compulsive behaviour (eg checking he has locked his car many
times) and was on aurorix for this but that he has had no medication for that
for some time.
Jon did not come in while I was there. Parents agreed that
there was no immediate risk of harm to self or others and assured me that they
could manage him overnight. They have our number in case the situation takes a
turn for the worse. It is my judgement that Jon requires admission to assess
and control risk and to initiate treatment. Jon’s parents advised that they
are not hopeful about our ability to bring him in for assessment without police
involvement but would prefer if we could manage without if possible. They
believe Jon could leave if he knew we were coming to assess him.
PLAN: AM assessment. P/C to father (Keith) on his mobile
(0421 xxx xxx) first.
116.
Significant matters mentioned in the forms are:
(a) Jonathan’s report of
having met Judas who had subsequently hanged himself, and of having been “tussling
with the devil who had crushed his hand”;
(b) that Jonathan did not
get on with police;
(c) that when Jonathan was
coming off marijuana he was usually angry and aggressive and punched holes in
walls;
(d) that Jonathan’s parents
had assured Mr Wells that “they could manage him overnight”;
(e) that Jonathan was tall
(around 180 cm) and strongly built, with curly shoulder-length dark hair;
(f) that Jonathan was
unlikely to agree to psychiatric treatment and that an involuntary admission
would probably be required to assess and control risks and commence treatment;
(g) Mr Wells’ suggestion
to the Crowley family that the Crisis Team could visit “after about 9am” on
Tuesday “to see if we could get him to agree to come to hospital voluntarily
for a psych reg assessment”;
(h) Mr Wells’ advice that
if Jonathan was unwilling to go voluntarily, “we would most likely leave and
return with police to take him to hospital”;
(i) the Crowley family’s
statement that they “would prefer that police not be involved but were aware
that they may be required”.
117.
Jon Wells marked the risk assessment for “non-compliance/absconding” as “high”
(an upgrade from the earlier “moderate” risk). He also wrote on the Crisis
Team whiteboard the plan specifying that the Crisis Team should phone Keith
Crowley to organise a visit to assess Jonathan early the next morning.
But you were concerned to make sure that until the CAT team
came the next morning that he stayed at home?---Yes, that he was okay, yes.
What were you worried about?---We had never experienced this,
we’d never experienced it with Jonathan. We didn’t know what to expect. All
we knew was that we had to observe him as closely as we could, and make
judgements about whether he was going to change his behaviour any further.
...
Is it fair to say that given his state of mind you considered
he needed to have somebody keeping an eye on him all the time?---No I didn’t
really, I suppose I should’ve but I didn’t because the way he was describing
his feelings and his state of mind was one of peace, happiness, joy not of
wanting to fight, argue, he just wanted to be loving and be loved and he was
happy at that stage. This was before the following day.
Yes?---We had no reason to believe he was going to take off
...
120.
Apart from his reference to Mr Wells’ agreement, Mr Crowley did not give
evidence of receiving any advice from any ACTMH staff member to the effect that
he should ensure that Jonathan was watched at all times until he went to
hospital; nor is such advice mentioned in any of the ACTMH records in
evidence.
121.
Having regard to the many other details of the discussion recorded in Mr
Wells’ note, in particular his assessment that Jonathan was a high risk for “non-compliance/absconding”,
the absence of any reference to such a warning is notable.
122.
There is in Jason Morris’s interview transcript a reference to Mark
Crowley having told him, after Mr Morris observed Jonathan acting oddly, that:
everything had settled. ... [The Crisis Team] didn’t feel
that it was necessary for him to be admitted but they were encourage [sic] the
father to just keep an eye on him and if he needed to – to go but they were
gonna encourage the – the family to do that rather than with the other options
because that was gonna be the easiest way for them.
123.
At trial, Mr Morris said that Mark Crowley had told him that his father
was “kind of keeping an eye on how things were going”. If anything, Mr Morris’s
evidence confirms my inference, from the absence of other evidence, that
neither Mr Wells nor any other ACTMH staff member gave any member of the
Crowley family clear advice that, until he could be admitted to hospital,
Jonathan had to be supervised closely; rather, they encouraged the Crowleys to “just
keep an eye on him”, a very different message.
125.
Jonathan’s mother also spent some time with Jonathan in his caravan
during the early morning, visiting him around 7:00 am or 7:30 am and finding
him calm and peaceful and reporting great happiness. She was relieved about
this, but did not want to discuss spiritual matters with him because of his
comments the day before.
126.
On Tuesday morning Keith Crowley telephoned ACTMH. Mr Crowley thought
this phone call was made around 9:00 am, but the ACTMH record appears to have
been entered in the ACTMH record-keeping system at 7:53 am and I see no
reason to doubt that. The record was made by Jenny Williams, a registered
mental health nurse who sometimes worked as a clinician conducting assessments.
127.
The record was as follows (the reference to Calvary is to Calvary Hospital, the other public hospital in the ACT):
Call From Father
father feels that J will go to calvary voluntarily
plan
- await outcome of attemp[t] at calvary admission (father will
let Catt know later today)
128.
At trial Mr Crowley described his report to Ms Williams as follows:
I reported that Jonathan had a good night and at present he
was peaceful and there was no need for an involuntary retreat or entry to the
hospital and that I’d keep them advised. And they said they’d keep in touch.
And did you tell them what your intentions were about getting
further treatment for Jonathan?---Yes. I told them I was keen to get him to
Calvary, because I knew Calvary from his brother Mark.
129.
In cross-examination, Mr Crowley said:
I advised them that [Jonathan’s] condition had not
deteriorated and that I’d report to them as soon as there was any sign of
deterioration.
130.
Mr Crowley gave evidence that in the course of this call he had been
asked whether Jonathan was a danger to himself or to anyone else, and he “had
to say as far as I was concerned he wasn’t a danger to himself and he wasn’t a
danger to anyone else”. This is not mentioned in Ms Williams’ record of Mr
Crowley’s call, but such questions, and answers to the effect mentioned by Mr
Crowley, are noted in the ACTMH record of a much later call said by ACTMH to
have been made to Mr Crowley.
131.
Mr Crowley said he initiated the phone call to ACTMH on Tuesday morning because:
I just wanted to make them aware that the situation hadn’t
deteriorated before they went to the trouble of, say, coming out with the
police.
132.
Mr Crowley agreed that at that point he believed there was no need for
the Crisis Team to come and he agreed that he probably said to ACTMH:
Look there’s no need for you to come out at this stage, we’re
still negotiating or talking to Jon and getting him in the state of mind to go
to Calvary. ... He’s peaceful, he’s not aggressive, he’s not harmful to himself
or anyone else. ... We’ll take some more time.
133.
Mr Crowley said that he still intended to get Jonathan to Calvary that
day, that he had made that intention clear to ACTMH, and that he had told them
that he would be in touch again if and when Jonathan’s condition deteriorated.
He was not asked what he understood to be the symptoms of a deterioration.
Nothing in the ACTMH records of the Monday evening assessment indicates that
the Crowleys had been told about any warning signs they should be alert for;
presumably the questions about the risk of self-harm and harm to others (if and
when they were actually asked) gave some hint of the sorts of risks that could
emerge, but without any advice about advance warning signs for such risks.
135.
There are several uncertainties about Michael O’Connor’s visit,
including the timing of his departure relative to other events and the point
during that visit when Jonathan had come in to speak to him. Mr O’Connor was
not called to give evidence and nor did anyone tender Mr O’Connor’s “report”,
referred to by Keith Crowley in his second police interview.
138.
Mrs Crowley had made sandwiches for herself, Mr Crowley and Mr O’Connor,
and had then made some for Jonathan. When she took them out to the caravan, Jonathan
was not there. She went straight back inside and told her husband. Mr Crowley
said that his wife had taken Jonathan’s lunch out to the caravan 10 or 15
minutes after Mr O’Connor had left, but Mrs Crowley said that when she
went back to the house to report Jonathan’s absence, Mr O’Connor “was about to
leave anyway so he left”. When Mrs Crowley reported Jonathan’s absence,
Mr Crowley said that he would get into the car and drive around looking
for Jonathan; he estimated that he had done so four or five minutes after Mrs
Crowley’s report.
139.
Jason Morris was a rehabilitation
officer with ACTMH at the time of the shooting, based at the Woden office of
ACTMH. His previous experience included three years working in the psychiatric
unit of The Canberra Hospital. On the Tuesday, Mr Morris was to take Mark
Crowley, Jonathan’s brother, to a rehabilitation activity. He also had to pick
up other rehabilitation clients for the same activity. Mr Morris had met
Jonathan over the two years that he had been providing rehabilitation support
to Mark. He got on well with the Crowley family, felt he was welcome in the
house, and recognised that the exchange of information with the family was
important. His previous dealings with Jonathan had involved pleasant
conversations while he was waiting to pick up Mark, and Mr Morris was not aware
that Jonathan had exhibited any signs of mental illness during his dealings
with him.
140.
Jason Morris arrived at the
Crowley home on Tuesday at around 10:45 am or possibly a bit later. He was
driving a passenger van and had not yet picked up any of his other passengers.
While sitting in the van outside the Crowley house waiting for Mark, he saw
Jonathan come out onto the road in front of his vehicle. Jonathan was talking
to himself and had with him a sword (described by Mr Morris as a reasonably long
black item) which he had waved around above his head, although in a
demonstrative rather than aggressive way.
141.
Mr Morris thought that Jonathan
was “different to his usual self”. He glared at Mr Morris and raised his
eyebrows. In cross-examination Mr Morris conceded that Jonathan had raised his
fists at Mr Morris. They exchanged gestures, finishing with “thumbs up”
gestures, after which Jonathan went back into his caravan.
142.
Mr Morris had not experienced
anything like this before, and did not know what to make of it. He thought
about going inside to talk to Jonathan’s parents, but was concerned about his
obligation to pick up other participants in the rehabilitation activity.
143.
When Mark Crowley joined him and
said that the family was aware of Jonathan’s behaviour, was in contact with the
Crisis Team who had visited Jonathan the previous night, and was hoping to get
Jonathan admitted to Calvary Hospital, Mr Morris’s concerns were
alleviated.
144.
Mr Morris’s evidence about when Mark told
him these things was inconsistent. In the note he made shortly after the
shooting, he said that this happened as they sat in the car outside the Crowley
home, before he drove off to pick up his next passenger, but at trial he said
that he was in a hurry to continue with his pick-up run and left the
Crowley home “reasonably straight away”, having most of his conversation with
Mark about Jonathan during the trip to pick up the next client.
146.
Mr Morris continued with his
rehabilitation tasks and dropped Mark back home at about 12:45 pm, noting the
presence there of a car that he described as belonging to “a family friend that
had dropped in”. In his police interview he said that when he returned to the
Crowley home he “was nearly gonna go in and talk to the father”, but that Mark
had said he would do that. Only after dropping Mark, about two hours after
observing Jonathan’s odd behaviour, did he find an opportunity to ring the
Crisis Team “just [as] a courtesy” to pass on his observations of Jonathan.
147.
At no stage during the morning did Jonathan’s parents raise with him the
possibility of going to hospital. Initially, it seems this was because, in Mr
Crowley’s words, “it was very difficult to start talking hospital” while
Jonathan seemed so happy.
148.
Nor did Mr and Mrs Crowley maintain constant supervision of him. There
is no evidence that they were aware of his whereabouts around 10:45 am when
Jason Morris observed him in the driveway, nor from about 11:30 am when they
were visited by Michael O’Connor, although it seems they saw Jonathan briefly at
some point during that visit when he came in to greet Mr O’Connor. By the time
Mr O’Connor left, Jonathan had disappeared from his caravan and his
parents did not see him again until after he was shot.
149.
The clear concern of the Crowley parents about Jonathan’s well-being is
evidenced not only by their own claims at trial but by their prior actions such
as the call to ACTMH on Monday night, Mrs Crowley’s insistence that her
husband get up to check on Jonathan at 5:00 am on Monday rather than going back
to sleep as he hoped to do, and even their action in buying a caravan for
Jonathan to live in at their home so they could help with his care after the
2000 car accident. Given that concern, it seems highly unlikely that Mr and
Mrs Crowley would have allowed themselves to be so completely distracted from
their supervision of Jonathan if they had been warned, either by Mr Wells the
previous evening or by Ms Williams that morning, how vital it was not to let Jonathan
out of their sight.
150.
At some point in the morning, without his parents’ knowledge, Jonathan
left his caravan with his kendo stick and went out into the streets of Chapman.
Some Chapman residents saw him around the streets as early as about 11:30 am,
but the first report to police of Jonathan’s odd behaviour from a member of the
public was recorded by Communications at 12:07 pm. That was followed by
several similar reports, but by 12:35 pm SC Pitkethly had reported that he
couldn’t locate the person being sought, who “[had] either gone to ground or he
lives in the area and he’s gone inside”, and the job could be marked “complete”.
The job was then re-opened at around 1:08 pm as a result of a call from a
postman, Andrew Oakley, who had been confronted by Jonathan in Lincoln Close in
Chapman and who told police that the person he saw had a timber sword and had
written on himself. Thus, Jonathan could have been wandering the lower streets
of Chapman from any time after 11:00 am, returning home briefly at some point between
about 12:30 pm and 1:00 pm during which period he spoke to Michael O’Connor,
before leaving his home again and this time heading up the hill towards Lincoln
Close and in due course Doyle Terrace.
152.
According to ACTMH records, there were four relevant phone calls made to
or from the Crisis Team after noon on Tuesday, as follows:
12:39:59 pm: A call from
police asking about a male with writing on him and a wooden sword (record made
by Jennifer Williams) (Police Call 1).
12:52:55 pm: A call from
Jason Morris to tell the Crisis Team about his observations of Jonathan (record
made by Karen Eggins) (Jason Morris’s call).
1:14:46 pm: A call from
police wanting information about a possible client with a sword (record made by
Jenny Williams) and a call from an unspecified caller wanting information about
a possible client with a sword (record made by Jennifer Williams) (Police Call
2).
1:28:55 pm: A call by
Andrea Twell to Keith Crowley following Jason Morris’s report, and dealing with
Jonathan, his weapons and his condition (Andrea Twell’s call).
153.
There is uncertainty about how many of these calls took place at all,
and uncertainty about the timing or the content of any of them that did take
place.
154.
Police Call 1 appears not to have been recorded by ACTMH until the day
after the shooting. Police Call 2 appears to have been contemporaneously
recorded, but a further, very similar record of it was made on 6 February
2002 (nearly two months after the shooting and after several ACTMH staff had
been interviewed by police, but before Ms Williams was interviewed). Jason
Morris disputed the contents of his call as recorded by Karen Eggins. Keith
Crowley’s recollection of Andrea Twell’s call appears to have changed over time,
and at trial he disputed both the recorded content of the call and whether it
had been made at all.
155.
The record of Police Call 1, and the record of Police Call 2 made by
Jennifer Williams, were not discovered by ACTMH during routine pre-trial
processes, but were produced very shortly before the trial began.
156.
This call was entered in ACTMH records by “Jennifer Williams” as
follows:
call from police asking if we had heard of a male with
writing on him and carrying a wooden sword - not recognised.
157.
The ACTMH record is identified as having been “completed” on the day
after the shooting. There is substantial evidence that Police Call 2 was made
(see [189] to [197] below), but apart from one other exhibit described below,
there is no other evidence suggesting that two phone calls were made by
the AFP to ACTMH during the relevant period. ACTMH staff in their police
interviews mention “a call from the police”, but no-one suggests multiple
calls. There is no evidence from the Communications transcript, from the CAD
log or from police officers (at trial or in police interviews) suggesting more
than one call to ACTMH. As well, Police Call 1, recorded as made at 12:39 pm,
is shown as relating to “a male with writing on him”, but the Communications
transcript shows no reference to the person having writing on him before Andrew
Oakley’s first report is recorded at 1:08 pm.
158.
Following a check of the original record of the Communications traffic, counsel
for the police conceded that Mr Oakley’s call mentioning that the person he had
encountered had writing on him was not made until shortly after 1:00 pm, and
that such information could therefore not have been included in any police
phone call made to ACTMH around 12:39 pm as set out in the ACTMH record.
However, this did not lead him to concede that Police Call 1 was not made at
all. Rather, he sought to explain the obviously incorrect content of the
record by noting that the record of the call was apparently made sometime on
the following day (12 December 2001) and submitting that the record was correct
as to the timing of a phone call from the police but that the reference to a
person with writing on him had been included by Ms Williams in error.
This, he said, was because by the time she made the record Ms Williams
knew that the police had asked about a person with writing on him, but did not
know that the particular inquiry could not have been made at the time of that
first call.
160.
There are no other relevant phone calls shown in the audit document.
161.
Also relevant are exhibited extracts from the report of “Operation
Houdan”, the AFP internal investigation into the shooting, which commenced
within about 15 minutes of the shooting and was completed in May 2002, less
than six months later. The extracts include a table describing all the
evidence gathered by the investigators. The table covers eight and a half
pages, lists 65 witnesses (including 26 police officers or AFP employees), and
sets out details of one AFP call to ACTMH (Police Call 2), but it contains no
hint that any other call might have been made to ACTMH on behalf of the AFP
during the search for Jonathan.
162.
Counsel for the police nevertheless urged me to accept the ACTMH record
of a phone call at 12:39 pm as establishing that some representative of the police
had called the Crisis Team at that time asking for information about a man with
a wooden sword although not mentioning writing. In support of his submission
counsel noted:
(a)
that the absence of any AFP record explaining the alleged content of the
call (that is, a record of any report of a man with writing on him that was made
before the original Communications record of Mr Oakley’s description being
given at 1:08 pm), can be disregarded in determining whether the call was made
at all; and
(b)
that the absence of any evidence of such a call from individual police
officers, interview transcripts, phone records or other AFP records does not
prove that there was no call.
163.
Of course it is true that the absence of evidence for a particular event
cannot directly prove that the event did not take place. However, once it is
accepted that the ACTMH record must be incorrect as to either its time or its
content (if not both), counsel’s submission is, in effect, that the ACTMH
record, despite being made nearly 24 hours after the alleged call and despite being
conceded to be at least partly inaccurate, is sufficient evidence of a phone
call from a police officer who has not been able to be identified (even by
police investigators in the period immediately after the shooting), using a
phone that has not been able to be identified, to staff of ACTMH none of whom
in their police interviews either hinted at an earlier phone call or appeared
to be avoiding mention of such a call. In the absence of any kind of supporting
evidence, I do not accept that the ACTMH record establishes, even on the
balance of probabilities, that a phone call (albeit with different content from
that shown in the record) was made at the time shown in the record. There
is nothing to be gained from establishing that a phone call was made with
the content shown in the record, since according to Simon Tillmanns, the
call made by him (Police Call 2) reflected almost exactly that content; that
is, he mentioned a man with a sword who had written on himself (see [204]
below).
P/c From Jason Morris From Wmhu
Jason went to pick up Jonathon’s[sic] brother Mark and he was
greeted by Jonathon who was holding a large samarai [sic] sword. Jason reports
that Jonathon has been smoking large quantities of cannabis and appears to be
displaying psychotic symptoms.
Plan: CATT to follow up by contacting Jonathon’s father to
arrange further assessment by CATT.
(a) the reference in the
ACTMH report to psychotic symptoms – this must have come from either Mr Morris
who made the report or Ms Eggins who recorded it in those words;
(b) Ms Eggins’ confirmation
in her police interview that Mr Morris said that Jonathan seemed to be “acting
in a psychotic manner” or “portraying psychotic symptoms” (rather than
specifying what those symptoms were), and that the Crisis Team should go out to
see him;
(c) the fact that Mr
Morris had studied courses called Psychology 1 and 2 at the Canberra Institute
of Technology (including a topic relating to the Diagnostic and Statistical
Manual of the American Psychiatric Association, a commonly used classification
of mental illnesses) and had also obtained a Certificate in Mental Health (from
an unnamed institution); and
(d) the fact that Ms
Eggins, a social worker, was presumably no more qualified (and may have been
less qualified) than Mr Morris to make an expert diagnosis of psychosis,
so that there is no reason to assume that “psychotic symptoms” were Ms Eggins’
interpretation of what Mr Morris reported seeing rather than Mr Morris’s
own description (especially given Ms Eggins’ comment that Mr Morris did
not describe specific behaviours, meaning there would have been nothing for her
to interpret).
Pc to Jonathon’s Father
Mr Crowley advised that things have “plateaued”. Jonathon
has handed over his weapons to his Dad. He has also thrown out all his dope
and medication (panadeine forte). He is stating he is cured. His mood is calm
and happy. We discussed options. Mr Crowley declined a Dom by CATT to try to
persuade Jonathon to come in voluntarily as he does not think Jonathon would be
recpetive [sic] to this at present. He will ring CATT if this changes. Mr
Crowley advised that his wife is very concerned that CATT will come out with
the AFP and force Jonathon to come to hospital. He is concerned that this
would be traumatic for all concerned as Jonathon is very strong and has a
significant dislike of the AFP.
Jonathon’s sister Kate works in ED and is concerned about him
coming in through there if he needs admission.
ACTION
I explained how EA’s work eg. we would need to believe that Jonathon is at
significant risk of harming himself or others, or of damaging his reputation
before an EA would become appropriate. Mr Crowley advised that Jonathon has
made no threats to harm himself or others. He is not likely to see any one than
[sic] his immediate family.
I also explained that if Jonathon comes to TCH voluntarily or
involuntarily in standard office hours, Mon-Fri, he could go straight to PSU.
PLAN
Mr Crowley will continue to monitor the situation and contact CATT if he
requires our input.
172.
There is no information in the ACTMH record that could not have been
available to ACTMH staff even if the alleged conversation with Keith Crowley
had not taken place. Not all the information is covered in the earlier ACTMH
records that are in evidence, but it is all information that could have been
given to Jon Wells by a member of the Crowley family on Monday night or to
Jason Morris by Jonathan’s brother Mark on Tuesday morning.
174.
At trial, however, Keith Crowley did not accept that Andrea Twell’s call
took place. He said he had no memory of such a call, and, he said, nor did
Michael O’Connor, who had visited the Crowleys on the Tuesday morning and
stayed for lunch. However, since other evidence appears to place the call
between 1:19 pm and 1:28 pm, there is no reason why Mr O’Connor, who left the
Crowley home around 1:05 pm, would have known about it.
175.
In relation to this call I am inclined to prefer Mr Crowley’s
recollections as recorded in his police interviews over his evidence given at
trial more than six years later. In his first interview, Mr Crowley said that
the Crisis Team had rung him and told him that Jason Morris had seen Jonathan
with the bok (Mr Crowley’s word) and that he had said he hadn’t seen Jonathan
with the bok. He said he had been asked questions about whether Jonathan was a
danger to himself or others, and whether he wanted the Crisis Team to come out,
and had said no to all those questions.
176.
In his second police interview Mr Crowley repeated that the ACTMH caller
had mentioned Jason Morris’s report about seeing Jonathan with the wooden bok,
saying “I think he called it ... a wooden stick”. He denied any recollection
of telling the caller that Jonathan had handed his weapons over, saying that if
he had been told that Jonathan had a sword and was dangerous, “I’m sure I would
have reacted to that”. At trial, while saying that he had no recollection of
the call, he maintained that if he had been told that Jonathan had “some kind
of weapon such as a sword”, he would have said “come straight away”, and that
he would have taken urgent action to obtain treatment for Jonathan.
178.
Ms Twell said that in the phone call to Keith Crowley she had encouraged
him to let ACTMH staff come out because Mr Wells “had felt that we should
follow it up the next day”, although she believed Mr Wells had not felt
there were then sufficient grounds for an involuntary admission. Presumably
this discussion was covered by the reference in her record to discussing
options, and to Mr Crowley declining a “Dom” (apparently a home visit);
certainly there is no reference to specific encouragement.
179.
The call as recorded by Ms Twell included a statement attributed to Mr
Crowley that “Jonathan has handed over his weapons to his Dad”. In Ms Twell’s
police interview, she said that she had expressed concerns about “the weapon”
to Mr Crowley, who had said “he had removed all weapons from Jonathan”.
Later in that interview she claimed that she had specifically raised the
question of the weapon with Mr Crowley, making the rather odd comment (at least
as transcribed) that:
I actually ... relayed to him what that Sue had told us and
he said ... and he acknowledged ... that that was all true ... but did say that
he had moved the weapon from Jonathan ... to the best of his knowledge Jonathon
[sic] had no access to a weapon and ... I think he said they went off to buy,
yeah, basically yeah ... . I just told him exactly what Karen had said.
180.
I can make no sense of this claim; no “Sue” had previously been
mentioned, although I suppose it is remotely possible that “Jason” might have
been mis-transcribed as “that Sue”. I also note that a claim to have passed on
“exactly what Karen had said” is not the same as a claim to have passed on exactly
what Karen had put into the ACTMH records, even though the evidence suggests
that Karen Eggins did hand over to Ms Twell a printed record of the call
(at [194] below).
181.
There is evidence that Mr Crowley had seen Jonathan without any weapon
at a time roughly half an hour before this phone call, when Jonathan had come
into the house to say hello to Mr O’Connor (see [137] above). This may also
have affected the content of his conversation with Ms Twell.
182.
It seems likely that Ms Twell did mention that Mr Morris had seen
Jonathan with the kendo stick. It is possible that this had not caused Mr
Crowley any particular concern, especially in view of his more recent sighting
of Jonathan without the stick; an alternative possibility is that at the end of
his conversation with Ms Twell he intended to take the stick away from Jonathan
but that this intention was overtaken by his discovery that Jonathan had
disappeared. Either way it seems quite unlikely that Mr Crowley told Ms Twell
that he had already taken the kendo stick away, since it is clear that he had
done no such thing.
183.
It is possible that Ms Twell asked Mr Crowley about access to weapons more
generally, and that he had answered with the samurai sword in mind (see [98]
above), or that Ms Twell mentioned the samurai sword specifically but not
the timing of Mr Morris’s observations. However I do not accept that if
Ms Twell explicitly told Mr Crowley that Jonathan had been seen with a samurai
sword earlier that same morning, he would have responded by claiming to have
taken that weapon from Jonathan since that time.
184.
What this means is that if the only weapon mentioned by Ms Twell was the
kendo stick, she was not told that Mr Crowley had taken it away from Jonathan.
If the only weapon mentioned was a samurai sword, Ms Twell was not told that Mr
Crowley had taken it away since that morning. There is no basis for a finding
that Mr Crowley told Ms Twell that Jonathan had no weapons because he had taken
the weapons away from Jonathan.
185.
At trial, Mr Crowley conceded that if someone had suggested to him that
day that Jonathan had been seen with any kind of weapon, his most likely
response would have been “he can’t have a weapon because I’ve got it”.
However, that should not have been the end of the matter, because the fact that
at some point Mr Crowley had taken away a particular weapon could not exclude
the possibility that Jonathan had obtained a weapon from somewhere, and the
only guarantee that Jonathan had no weapon at a particular time would have come
from an observation of Jonathan without a weapon at that time. If either Ms
Twell or Mr Crowley had sought to clarify the times of the removal of the samurai
sword and the sighting of Jonathan with something described as a samurai sword,
this would have revealed that the conclusion that Jonathan did not have a
weapon of any sort was not reliable, even if it was unlikely that he had a samurai
sword. Even if no such effort was made, Ms Twell had no basis (as a
matter of logic, irrespective of what Mr Crowley might have told her) for
assuming, when police rang only a few minutes later asking about a man with a
sword, that the man could not be Jonathan because Jonathan didn’t have any
weapons.
188.
The timing of this call is conveniently considered together with the
timing of Police Call 2. At this stage, however, I note that the call must
have been made within the half hour before Jonathan was shot, and therefore
close to the time when Mr Crowley heard that Jonathan was missing and went
to look for him. In such circumstances it would not be surprising if the details
of the call had gone completely out of Mr Crowley’s mind when he heard
what had happened to Jonathan.
Call From Police
- wanting info about possible client with sword
- no info able to be given
Jenny Williams
190.
The record of this call made in February 2002 is the same except that it
doesn’t mention the source of the call, it is “signed” by Jennifer Williams,
and it is shown as “Completed 6/2/2002, 16:16:00”.
191.
The AFP CAD log includes an entry at 1:28 pm that:
Comms checked with MHCT to see if they knew of anyone
matching initial desc[ription] of male—MHCT not aware, need further information”.
192.
The ACTMH records show the call as received at 1:14 pm, while the AFP
CAD log entry suggests it was made several minutes before 1:28 pm (see [34] above
for comments about the import of times shown on the CAD log).
(a) a call from one Alf
(presumably Alf Turketo, see [202] below) suggesting a check with Mental Health
to see if they have a client in Chapman, which if it is correctly located in
the transcript at Exhibit 1.9 was made at about 1:25 pm, but nothing
indicating that such a call had already been made; and
(b) a conversation
apparently at about 1:29 pm in which South 410 (Sergeant Geraldine Morris, the
Woden supervisor on that shift) suggests calling the Mental Health Crisis Team;
and
(c) a response from
Communications to Sgt Morris that such a call has already been made.
(a)
she took Jason Morris’s call (recorded at 12:52 pm);
(b)
she took another unrelated call of unspecified duration;
(c)
at about 1:00 pm she went to the Crisis Team to pass on Jason Morris’s
information (apparently by handing over a print-out of the record of the call),
and Andrea Twell said she would follow it up;
(d)
at about 1:15 pm she returned to the phones and heard that the other
person working the phones (Jenny Williams) had received a call from the police
about a person with tattoos and a wooden sword;
(e)
an unspecified time later, she went back to the Crisis Team to pass this
on, asking in the course of doing so what was happening about Jonathan;
(f)
Ms Twell responded to Ms Eggins’ second visit to the Crisis Team by
mentioning the conversation she had just had with Keith Crowley.
198.
Having regard to the second-hand suggestion at [173] above that Telstra
call records placed the call from ACTMH at 1:19 pm, the evidence that Jason
Morris’s report was passed on to Ms Twell around 1:00 pm, the likely timing of
Police Call 2 and the time it could have taken Ms Twell to type up the record
of the call, I find that the phone call recorded by Ms Twell at 1:28 pm
was made around 1:20 pm.
200.
The contents of the call were mentioned in an interview transcript, and
a statement, of Mr Simon Tillmanns, both of which were in evidence.
201.
Mr Tillmanns, who in December 2001 was working in Communications, was
interviewed several weeks after the shooting. He told police investigators
that on the Tuesday he had been doing a morning shift (7:00 am to 3:00 pm) at
Communications. He took several of the calls about Jonathan, including the
second call from Andrew Oakley about where Jonathan had been seen.
with that brief description that was available to me at the
time, [ACTMH] advised that they ... were not aware of anyone matching that
description that they had actually dealt with and that they required further
information.
203.
Mr Tillmanns could not remember who he had spoken to at ACTMH, but he
thought it was a female. He said that the phone call would have lasted “30
seconds to a minute at most”.
ST: I was wanting to see if you had any dealings with a male
who Police are currently looking for in the Chapman area. The only description
we have of him so far is that he is carrying a sword and has written all over
himself in biro. Do you recall having dealt with anyone matching that
description?
ACTMH: No I’m not aware of any clients like that.
205.
Shortly afterwards, Sgt Morris (call sign South 410) asked police communications
to check with the Mental Health Crisis Team about whether they had any clients “in
the area”. The Communications transcript, recording the call at around 1:29
pm, shows her request being answered as follows:
We’ve already done that, South 410. They’ve got nothing – on
the availability of what we’ve got so far they’ve got nothing to match up with
what they’ve got. They need further information.
207.
One other matter needs to be mentioned in connection with Police Call 2.
208.
In evidence was a Memorandum of Understanding between the AFP and ACT
Mental Health Services (the MoU) which was signed in May 2000 by the
Chief Police Officer for the ACT and the Chief Executive of The Canberra
Hospital. There is no need to canvas the general issue of the capacity of two
agencies representing the Crown in right of different bodies politic to enter
an enforceable contract, because it is apparent that this particular MoU was
not intended to be enforceable in any real sense. On the other hand, whether
the terms of the MoU could have been enforced or not, the apparent intention of
the two agencies about how they would deal with situations in which their
responsibilities overlapped may be relevant to whether either agency was
negligent in its dealings with the other.
1. REFERRAL BY POLICE TO MENTAL HEALTH SERVICES
1.1 Police may request the assistance of MHS in
situations where there are indicators that a person is suffering from a mental
dysfunction, and this is affecting the person’s ability to function in the
community to such an extent that police intervention is required.
Appendix A: Indicators of a Person Possibly Suffering
from a Mental Dysfunction
1.2 Police shall contact MHS in situations where one or
more of the following apply:
(i) where
a person is known to suffer from a mental dysfunction and is at risk of harm to
themselves and others; or
(ii) is
a person who is not known to suffer from a mental dysfunction but:
(a) has
a history of, or presents a current threat of deliberate self harm;
(b) is
behaving in an overtly unusual way; or
(c) is
displaying severe mismanagement of personal affairs as a consequence of their
mental state.
1.3 Urgent Referrals to Mental Health Services
Urgent
referrals are those which police believe require the immediate attention
of MHS, where the person appears to be suffering from a mental dysfunction and
requires urgent care.
This includes situations where
persons are suicidal and/or threatening other persons or property.
1.4 Referral
by the police may be made directly to the Mental Health Triage Service (MHTS)
Telephone number 1800 629 354
6205 1065
or through The Canberra Hospital
switchboard
Telephone Number 6244 2222
When making any such referral, as
much information as possible should be gained. The following details, if
available should be communicated to the MHTS to allow them to plan their
response.
(i) Name
(ii) Date of birth
(iii) Address
(iv) Brief description of the subject person
(v) Current location of person
(vi) Presenting problem
(vii) Behaviour of person
(viii) Other services and persons involved
(ix) Presence or availability of
family members or other support persons
(x) Evidence of firearms, other dangerous weapons
or drugs
(xi) A Doctor or Mental Health Worker whom she/he
has seen
...
1.5. Mental Health Service Response To Referrals
The initial response by MHTS will
be to obtain as much information as possible from police to determine the most
appropriate mental health service response.
If initial contact is between AFP-Operations
Monitoring and Intelligence Support (OMIS) and MHTS, arrangements for
communication with the police member at the scene will be made.
In situations where MHTS decide
that a mental health service response is not appropriate, MHTS will provide
information to assist police to identify the appropriate service, or will
provide general advice. This would include referrals to Adult Community Health
Teams, alcohol and drug services and disability services.
...
2. REFERRAL BY MENTAL HEALTH SERVICES TO POLICE
2.1 Urgent Referrals to Police
Urgent situations are those where
MHS believe that police attendance is required immediately and include episodes
in the community, health centres, the Psychiatric Unit and MHS hostels where it
is believed a person’s behaviour could lead to harm or injury and assistance in
containing the behaviour or transport to hospital is necessary.
The process for urgent referrals
to police by MHS is as follows:
(i) contact
Police Communications direct on 11444 (or 000 if the matter is immediately
life-threatening);
(ii) inform
the operator that urgent assistance is required – provide full details of
situation;
(iii) provide
full details of current problem including the presence of weapons/alcohol/drugs
etc, or a known history;
(iv) provide
all available details concerning the person subject to the attention which
would enable police to more accurately determine the nature of the situation
including the presence of any other person/s;
(v) provide
any other available background information which may assist police to make
decisions on how to best manage the situation; and
(vi) when
a Mental Health Tribunal Apprehension Order is issued, police will contact the
Mental Health Triage Service. Where ever possible a CATS [Crisis Assessment
and Treatment Services]/Regional Team worker will attend.
Police will determine the urgency
of the request and will determine an appropriate response. Police will
determine an ETA based on their operational commitments and priorities which
will be communicated to the MHS making the request.
2.2 Responsibilities
Where Police Have Been Called for Urgent Assistance
Where police assistance has been
sought because of physical danger to the person or to others, police will take
responsibility for ensuring physical safety of all people at the scene. Police
shall make decisions about timing and the degree of force to be used and the
deployment of police and MHS while the situation is secured. Prior to any
action and unless inappropriate because of extremely urgent situations, police
will consult with MHS for advice on the situation and the likely responses and
behaviour which will affect the police action taken.
...
3. JOINT MANAGEMENT OF INCIDENTS
...
3.1 Emergency
Detention Pursuant to the Mental Health (Treatment and Care) Act 1994
Appendix B: Section 37 Mental
Health (Treatment and Care) Act 1994
Section 37 Mental Health
(Treatment and Care) Act 1994 prescribes the legislative authority for
a police officer, doctor or mental health officer to take a person suffering
from a mental dysfunction to an approved health facility where it is believed
on reasonable grounds that:
(a) a
person is suffering from a mental dysfunction (as defined in appendix A) and,
as a consequence requires immediate treatment or care;
(b) the
person has refused to receive that treatment and care; and
(c) detention
is necessary for the person’s own health or safety or for the protection of
members of the public.
The doctor or mental health
officer should also consider S37(2)(d) which requires that;
(d) Adequate
treatment or care cannot be provided in a less restrictive environment.
Section 37(3)(a) provides for a
police officer, doctor or mental health officer to use such force and
assistance as necessary and reasonable to apprehend the person in order
to convey him/her to the facility.
Section 37(3)(b) provides that if
there are reasonable grounds for believing that the person is at certain
premises, a police officer, doctor or mental health officer may enter those
premises using such force and with such assistance as is necessary and
reasonable.
In cases where police exercise
the emergency provisions of the Act, it is desirable for the CATS to be
present to assist in the management of the situation. It is recognised that
time and resource constraints may limit this assistance.
...
3.2 High Risk situations Involving the Police
Negotiation Team
In high-risk situations, the
Police Negotiation Team (PNT), Special Operations Team (SOT) or the CMO
[Commonwealth Medical Officer] may be utilised. CATS may be requested to
assist in providing qualified opinion in relation to the situation.
In such situations, police will
provide as much information as possible at the time of the referral. In
addition to an overview of the situation, the following matters shall be
addressed by police when making the request for CATS assistance;
(i) the procedure for gaining access to
the incident scene;
(ii) the
police officer in charge at the scene to whom they are to report; and
(iii) the role they are
expected to perform.
If the PNT are at the scene, they
shall be responsible for decisions concerning the management of the incident.
...
3.3. Training
MHS and Adult Teams, CATS and
Child and Adolescent Mental Health Service are available to have input into AFP
training on mental health issues. The role of AFP officers will be included in
MHS training orientation programs. CATS and AFP are to have a joint training
workshop to review how the management of people suffering from a mental
dysfunction was undertaken by both services.
3.4 AFP/Mental Health Services Liaison Officers
To facilitate ease of contact,
AFP – ACT Policing shall appoint a Mental Health Liaison Officer at each patrol
and within the Police Negotiation Team.
Appendix D: AFP Mental Health
Liaison Officers
Contact with Mental Health
Services shall be through MHTS.
APPENDIX A
INDICATORS FOR CONSULTATION WITH MENTAL HEALTH SERVICES
The following indicators are to be used as a guide, rather
than to confirm the presence of mental illness. If the situation you are
confronted by included one or more of these indicators, it would be useful to
consult with the Psychiatric Service for advice on options available to manage
the situation.
DOES THE PERSON EXHIBIT ANY OF THE FOLLOWING?
·
Marked Changes of Mood
Unexplained elevated mood,
irritability, anger, depression and marked lethargy.
·
Disorganised Behaviour
Disorderly routine of daily
living, for example, hygiene, dress, budgeting, cooking and diet.
·
Poor Concentration
Difficulty following or staying
on a topic of conversation. Easily distracted, may commence many tasks and not
be able to complete these.
·
Hallucinations
For example, the person may hear
voices no-one else can hear, or see objects or people that others cannot.
·
Delusions (Fixed False Ideas)
For example, believe they are
being tricked, or followed, or that their thoughts are being controlled by an
outside force, or believe they have power or wealth beyond their means.
·
Persistent Intense Anxiety
This may be present with a sense
of impending doom that the person cannot explain, or may be inappropriate to
the person’s current situation.
DOES THE PERSON POSE A SAFETY RISK TO SELF OR OTHERS?
·
Suicide (or High Risk Behaviours)
May include suicidal thoughts,
plans or actions. Self destructive or high-risk behaviour may include taking
large quantities of unprescribed medications, or acts of self-mutilation.
·
Other High Risk Behaviours
May include dangerous
self-neglect, threatening or intimidating behaviour, violence and aggression,
homicidal ideas which are in response to disturbed thoughts or mood, rather
than in response to real situation disturbances.
IS THE PERSON INTOXICATED (BY ALCOHOL OR OTHER MIND
ALTERING SUBSTANCES)?
·
If so, the person (who may need a medical examination), should be
maintained in a safe place, for example, with family or friends, or in police
custody until in a clear state of consciousness after which time a mental state
assessment may or may not be required.
IS THE PERSON SUFFERING FROM SELF-INFLICTED INJURY OR
EFFECTS OF OVERDOSE?
·
If so, then medical safety is the first priority. In such cases
the person should be transported to the nearest place where medical attention
is available without delay. A psychiatric intervention can be arranged once
the person is medically stable, and sufficiently conscious to enable a
meaningful mental state assessment is made.
IS THE PERSON A SERIOUS SAFETY RISK TO SELF OR OTHERS?
·
If so, then the person should be detained in a safe place to
minimise the risk of harm. Once safety has been established, a psychiatric
intervention can be arranged.
210.
Item 1 deals with police referrals to ACTMH. It is clear that by about
12:15 pm on the Tuesday the police had information that enlivened the
obligation (expressed as “Police shall contact MHS”) under item 1.2 to contact ACTMH,
in that they were dealing with a person “who is not known to suffer from a
mental dysfunction but: ... (b) is behaving in an overtly unusual way”.
211.
It is also clear that Appendix A of the MoU, particularly the references
to delusions and high-risk behaviours, and possibly also the reference to
hallucinations, should have alerted police receiving reports about Jonathan’s
behaviour to the possible presence of mental illness and the desirability of
consulting the Psychiatric Service for advice as recommended in Appendix A of
the MoU.
212.
At [197] above, I have found that such contact did not take place until
about 1:25 pm, at least an hour after police had information that, under the
MoU, required them to contact ACTMH. When that contact was made by police, the
records suggest that it did not comply with the requirement under item 1.4 to
provide “as much information as possible”, including the following information
all of which was by then available to Communications and to any other police
officer who had been monitoring the Communications broadcasts until that time,
namely:
(iv) Brief description of the
subject person
(vi) Presenting problem
(vii) Behaviour of person
(x) Evidence of ... dangerous
weapons or drugs.
213.
It is equally clear from the ACTMH records that ACTMH staff did not
respond as required by Item 1.5, in that there is no hint in the evidence that the
ACTMH employee taking the phone call (apparently Ms Williams) asked the police
caller for more information, let alone that she took the caller through, for
instance, the list set out at Item 1.4 in the hope of eliciting any useful
information.
214.
Item 3.1 refers to the power to detain a person involuntarily; it
appears that from the police perspective, Jonathan had by about 12:15 pm
satisfied the first test identified in paragraph (a) of Item 3.1 (he was “behaving
in an overtly unusual way” as mentioned in Item 1.2(ii)(b)), but there is no
hint in the evidence of any police consideration of the possible relevance of
the power to apprehend the person they were concerned about under the ACT Mental
Health Act; it seems that despite the recognition of that person as a “mental
patient”, he was being pursued by police solely as a potentially dangerous
offender.
215.
Nor, it appears, was there any thought of treating the matter as a “high-risk
situation” of the kind dealt with in Item 3.2, in which case ACTMH might have
been asked to provide “qualified opinion”. This may be because the incident
was not actually seen as a “high-risk situation”—which was possibly a correct
assessment before the two police officers confronted Jonathan in Doyle Terrace,
but which contrasts with the views of those police officers, as well as Federal
Agent Rath and the expert witness Geoffrey Schuberg in particular, that the
situation involved serious risks and that this was why the police had to act so
quickly when they found Jonathan.
217.
I note also that in the MoU there is only one local phone number given
for the Mental Health Triage Service (6205 1065), but that the triage staff who
took the calls about Jonathan appear to have been attached to the Woden team.
It is not clear whether those triage staff were receiving all Canberra calls,
or whether ACTMH’s phone system ensured that only calls relating to the Woden
area were directed to the Woden team. Either way, Andrea Twell’s comment at [235]
below that they all thought of Jonathan immediately suggests that they were
dealing with a limited group of patients, whether because Canberra had few
patients in crisis that day, because only the calls relating to the Woden area
were coming to the Woden triage staff, or because Chapman had been mentioned in
the AFP inquiry.
(a)
that the AFP did not give any physical description of the person they
were concerned about beyond that set out in Mr Tillmanns’ report, or any
description of his behaviour, and that ACTMH did not ask for any such
information;
(b)
that the AFP did in Police Call 2 specify Chapman as the location of the
person they were concerned about;
(c)
that the AFP did not seek any general advice from ACTMH about how to
deal with a person behaving in the way that had been reported to them, and that
ACTMH did not offer any such advice;
(d)
that the AFP did not seek any agreement from ACTMH to help in the
apprehension of the person if and when he was tracked down, and that ACTMH did
not offer any such help;
(e)
that neither the AFP or ACTMH officers offered or agreed to check for
any further information in their records or among other staff and to contact
the other agency again; and
(f)
that neither the AFP nor ACTMH appeared to be taking any account at all
of the MoU in their dealings with each other or in their handling of events
involving Jonathan.
219.
The significance of the late recording of the alleged first call from
the AFP, and of the two records of the “second” call, is not clear.
220.
Counsel for the police commented on the fact that the only apparently
contemporaneous record (that of the 1:14 pm call made on a Patient Progress
form) was made by Jenny Williams and the two records made after the
event on unnamed forms were attributed to Jennifer Williams.
221.
I do not think any useful inference can be drawn from this fact. It may
reflect nothing more than that, for the two different kinds of forms (the
Patient Progress form used for the contemporaneous record and the unnamed form
used for the later records), Ms Williams had set up different automatic “signatures”
(as an email user can do for different classes of emails).
223.
Jenny Williams took the early morning call from Keith Crowley in which she
recalled him saying “he was taking [Jonathan] to Calvary for admission”.
Although it was apparent that her memory was vague, she said that “it would
have been” Mr Crowley saying that he wanted to take Jonathan to Calvary and
that he “asked me to leave it”.
224.
Keith Crowley’s phone call had come halfway through the handover from
the night shift to the morning shift, and John Bubear said in a police
interview that:
There was a lot of discussion around Jonathon at that hand
over because obviously his history um, and what he’s presented with. I mean
not only history but his presentation and the plan was to actually see him that
morning and to cause the issue, probably hospitalisation at the worst. Um take
the doctor out there to see him. And then got called, Jenny came out and said
that look we’ve just had a call from him, from the father saying that they
would go and that Calvary had a psychiatric assessment team there um, and a
ward, so we went to - he said Oh, well hold up there on that and wait.
225.
Andrea Twell said in her police interview that Mr Wells, who had seen Jonathan
the evening before:
wanted us to go out there first in the morning so I think he
was wanting us to keep a very close on Jonathan ... just to see what was
happening.
226.
She said that although Jonathan was “on the board” (which I take to mean
“the subject of a note on the whiteboard”), and ACTMH staff were expecting to
go out and see him that morning, the Team Leader (John Bubear) had said that Mr
Crowley had telephoned and said “he was gonna take him to Calvary himself”.
Ms Twell said that “we” were concerned, but “respected the [family’s] ...
decision to take him to Calvary”.
227.
Despite these concerns, ACTMH staff took no further action to implement Mr
Wells’ recommendation that Jonathan be properly assessed on Tuesday until
Andrea Twell called Keith Crowley five hours later because of Jason Morris’s
report.
229.
Ms Williams said to Ms Eggins that “police were just asking there’s
someone with a sword”.
230.
Because she had also taken the call from Jason Morris mentioning a large
samurai sword, Ms Eggins wanted to clarify Jonathan’s position, so she asked
about Jonathan in the course of reporting to the Crisis Team the police phone
call that Ms Williams had taken.
231.
Ms Eggins said that Ms Twell told her that she had spoken to Keith
Crowley and he had assured her that he had taken Jonathan’s weapons away.
[she] said she’d had a call from the police and they wondered
if we knew of anyone ... that might be wielding a weapon ... and I don’t think
we knew exactly whereabouts, I’m not quite clear on that ... I said ... I’ve
just spoken to Jonathon [sic] CROWLEY’s dad and he said that Jonathon [sic] was
at home and has handed in his weapons. So as far as we knew ... he was quite
safe.
No because I’d spoken to his dad. Um, it was a different
suburb, um, and I believed that he had had weapons removed from him that his
dad actually knew he was at home with him. I remember really clearly ---
Do you recall what suburb the police ---
No I don’t. I don’t. I could – there’s something that goes
through my head it’s Holder I don’t – no I don’t I’d have to say no.
234.
Holder is separated from Chapman by only one suburb.
we all immediately thought of Jonathon [sic] CROWLEY but we
had had, well I had had a conversation with his dad.
236.
Ms Twell did not know whether Karen Eggins passed any of that
information back to the police.
237.
The record made by Ms Twell (at [171] above) included reference to
Jonathan being strong and having “a significant dislike of the AFP”. This
factor was relevant to her willingness to accept Mr Crowley’s request not to
come out to see Jonathan; she said in her police interview: “I couldn’t
guarantee that if I came out and saw him that I wouldn’t get the police
involved”. Unfortunately it seems not to have influenced her to mention
Jonathan to the police just in case he turned out to be the person the police
were looking for.
239.
Ms Williams said that she thought it was possible that Jonathan was
the person being asked about, but she thought that the Crisis Team was dealing
with the matter and the situation had been resolved. She had thought about
calling the police back with that information but “was quite confident that it
was being dealt with” by the Crisis Team.
241.
Mr Bubear was correct in saying that the relevant record refers to “anonymous
male”. Apart from that, his remarks are entirely inconsistent with the evidence
of the three women, and I reject his comments to police investigators as
possibly made in ignorance but more probably deliberately intended to mislead.
244.
The possibility that privacy requirements might have precluded ACTMH
giving information to the police is dealt with at [933] and [952] below. At
this stage I note only that there is no indication whatsoever in any of the
ACTMH records or the interview transcripts of ACTMH staff members that any
member of ACTMH staff was even remotely concerned about the scope under relevant
legislation for passing on information to the police if they had considered it
otherwise worth passing on. There is a comment in Keith Crowley’s first
interview transcript made by one of the interviewing police that the ACTMH
people “because of private [sic] issues or any other issues ... don’t wish to
speak to us at this point in time” but this concern did not seem to have
existed in December 2001 and seemed to have evaporated again by the time police
interviewed ACTMH staff members in late January and early February 2002.
245.
In cross-examination, Mr Crowley agreed that Mr Wells had indicated that
Jonathan needed to be assessed in hospital, and that if he could not be
persuaded to go to hospital voluntarily he would need to be involuntarily
admitted. Mrs Crowley said that Mr Wells didn’t think Jonathan was a danger to
himself or anyone else. Mr Crowley agreed that he and Mrs Crowley were
not keen on Jonathan “being dragged away by the police” and did not want police
involved in taking Jonathan to hospital “if it could be avoided”, and that he
had told Mr Wells that Jonathan would react negatively if he was “dragged away
in the way that my friend’s child had been dragged away”. Mrs Crowley was also
worried about Jonathan being taken involuntarily by the police; among other
things she thought Jonathan might see it as a breach of trust on his parents’
part.
246.
Mr Crowley agreed that he had not observed police involvement in mental
health work, but had been told about it by a friend whose son had been “dragged
away by the police”. When he called the Crisis Team on the Tuesday morning he
remained hopeful that he would be able to get Jonathan to hospital voluntarily,
but he had a general concern that Jonathan’s behaviour might deteriorate.
247.
Mr Crowley said that he had expected ACTMH to contact the police about
Jonathan’s condition, because he understood there was an agreement between
ACTMH and the police to “confer with each other” (it seems that Mr Crowley was
more aware of the MoU than the police or ACTMH were at that stage). He agreed
that if he had been contacted by police about Jonathan, he would have
cooperated with them, and in particular he would have attended “the place where
[Jonathan] was found”.
248.
Mr Crowley said that his understanding on the Monday night was that
someone from ACTMH would telephone in the morning and also come to his home,
and that he had assumed that there might be police involvement because “that’s
the way they normally operate, from my experience”. Mr Crowley denied that he
had said that Jonathan was usually angry and aggressive when coming off
marijuana. Despite Mr Crowley’s denial, it seems unlikely that Jon Wells
invented the material in his report about Jonathan being angry and aggressive
when coming off marijuana. However, it does not seem to matter whether this
was an accurate report of what the Crowleys had said, or indeed an accurate
description of Jonathan’s past behaviour, because the material, accurate or
not, was in ACTMH’s records and ACTMH staff had no basis for not taking it
seriously.
249.
Mr Crowley said that he remembered Jason Morris’s visit to his home later
on the Tuesday morning. Mr Crowley had waved to Mr Morris, but Mr Morris
had not spoken to him about Jonathan. Mr Crowley said that if Mr Morris had
mentioned that Jonathan was behaving strangely and had some kind of weapon, he
would have acted; specifically, he would have called the Crisis Team and sought
to confiscate the weapon:
if Jason had said to me, look he’s wandering around with a
sword looking dangerously, I would have known that his condition had
deteriorated, and therefore, would have to act.
250.
Mrs Crowley gave evidence that the family had sought ACTMH help because
they and Jonathan needed the expertise that could be offered and that they had
relied on the judgment of the Crisis Team about what was best. Mrs Crowley
said that she had trusted ACTMH to provide care to her son Mark, but agreed
that at some point she had involved a private psychiatrist in his case because
she and Mr Crowley hadn’t been satisfied with the doctor who had been caring
for Mark. She had accepted the Crisis Team assessment that Jonathan needed to
go to hospital in the absence of any other advice and in a crisis.
251.
Mr Crowley had complied with the advice received from Jon Wells on the
Monday night by staying with Jonathan that night until he fell asleep and
getting up very early the next morning to check on him again.
252.
I find that Mr and Mrs Crowley had involved the Crisis Team in
Jonathan’s care because they (and Jonathan’s sister Dr Kate Crowley) believed
they needed qualified help to deal with his condition, and had complied with
the specific instructions from Jon Wells. I further find that while the
Crowley family would have questioned any advice from ACTMH staff that Jonathan
needed to be taken to hospital with police assistance, they would not have
obstructed the subsequent implementation of any such plan if the risks to
Jonathan and others had been properly explained to them (even if the risks explained
had not included the risk of unplanned police apprehension).
253.
Within what must have been a fairly short time after Jonathan first left
his family home with the kendo stick, several members of the public had
experiences with him that worried them sufficiently to cause them to notify the
police. Most of the witnesses involved from this point did not know the name
of the man they observed, but for ease of reading I have generally used his
name rather than the various descriptions used by those witnesses.
a man with a painted face with a big stick, a huge guy ... he
was probably in his twenties ... he tried to jump in front of the cars. ... he’s
obviously ... mentally ill. ... he’s probably over six foot with dark curly
hair, longish hair just to the shoulder. ...
255.
At 12:10 pm the Communications transcript refers to a report from a
member of the public that the person “might have a sheathed Samurai sword with
him”.
258.
Bill Atkinson was driving along Perry Drive in Chapman shortly after 12:00
noon. As he approached the Perry Drive intersection with Tauchert Street, he
saw Jonathan standing in the middle of the road holding something up towards
the sky. Mr Atkinson thought it was a stick of the kind associated with
the martial arts, possibly of a kind nicknamed a “killing stick”. Jonathan
seemed to be talking or shouting but there was nobody near him. Mr Atkinson
slowed right down and passed Jonathan on the wrong side of the road.
259.
Having no mobile phone, Mr Atkinson drove quickly to the Waramanga
Pharmacy, that being the nearest place he could think of where he could make a
phone call. He confirmed the accuracy of the Communications record of his
phone call at 12:12 pm, which he said was made within five minutes of
driving past Jonathan. The significant part of his report was as follows:
I’ve just come from dropping my son off at the, ah, primary
school at Chapman, ah, and I was driving along Tauchert Street, ah, on towards
the Namatjira end of Tauchert Street where it joins onto Perry Drive to be
confronted with a - by a young bloke, probably mid thirties, long hair, open
shirt carrying, it looked like a Samurai stick standing in the middle of the
road swinging it round and shouting at traffic. Now he’s obviously high as a
kite on something, but my main concern is that he’s, ah, in the area in a
school - near a school which is just about to break for lunch.
262.
SC Pitkethly did some searching in the Chapman area, including having a
good look around the area of the school and speaking to the principal, who
decided to keep the children in over lunchtime until the man was found. At 12:35
pm according to the Communications transcript, SC Pitkethly told Communications
that he couldn’t find the man and that the job could be marked complete.
263.
In 2001 Andrew Oakley was a postman, and on the day of the shooting he
was delivering mail in Chapman. He was riding something variously referred to
in evidence as a motorised bicycle or motorbike; the availability of a motor is
significant, so I shall refer to it as a motorbike. He was wearing a helmet.
At some point he rode into Lincoln Close, which runs off Doyle Terrace, and
noticed several logs placed across the road. He stopped his motorbike and got
off to remove the logs. As he started removing the logs he heard someone yell
out from behind a vehicle, telling him not to touch the logs and to stop what
he was doing. He looked up and saw Jonathan, but continued moving the logs
because he thought they would be dangerous to vehicles using the road. When he
looked up again Jonathan was running towards him with a wooden stick that Mr
Oakley thought was a kendo stick in his hand. Jonathan’s shirt was open down
to his navel and Mr Oakley could see black writing across his chest to the
effect that he was God and Jesus. Mr Oakley put his motorbike between himself
and Jonathan, who repeated that Mr Oakley should not touch the logs.
he said, “You wouldn’t believe my day. I’ve been away for a
long time and I’ve come back. Here I am being Christ and I’ve come back and
the world’s a disgrace and it’s a disaster look at it.” And I said, “well
look, I have to deliver mail to number four,” and he said, “Well look I’m sorry
you go ahead and do that,” but he said, “if you had any other problems I was
going to take your effing head off.” And I said, “Look no worries” ...
265.
Mr Oakley then got on his motorbike, with no interference from Jonathan
who was “still ranting and raving”, rode his motorbike a bit further and
contacted police. His call to police was received at around 1:08 pm and was logged
in the Communications records as follows:
the complainant’s a postie and he’s been threatened by a male
carrying a timber sword. The male came in from ... 5 Lincoln Close in Chapman
and is apparently still on the street ... he doesn’t wish to make a complaint
of assault at this time. The male may be mentally disturbed. He’s written on
himself in biro and appears extremely agitated.
I felt sorry and then I thought well he might be on drugs or
I might be wrong there and he might be mentally ill.
269.
Mrs Healy said that she had been “concerned ... for her welfare”, but that
she had not been threatened or assaulted and that her door had not been damaged
in any way.
270.
SC Pitkethly said in evidence that Mrs Healy was frightened and
distressed, and told him that a man had come with a large implement and started
to bash at her screen door, trying to get in. She had told the man that if he
didn’t go away she would call the police and at some stage he left, not long
before the police officers arrived. SC Pitkethly said that her front
door, which he described as a Weldmesh security door, had dents and things in
it from being struck. Given Mrs Healy’s evidence, this damage might have been
unrelated to Jonathan’s banging on the door. SC Pitkethly’s report of Mrs Healy’s
experience was shown in the Communications transcript as follows:
He’s, um, threatened and frightened the hell out of the, ah,
lady here. ... he could be, um, part Aboriginal and he’s got, um, he’s got some
sort of religious slogan painted across the front of him at the moment. ... now
there’s a – a an older lady here that, um, that he’s, um, he’s been here and he’s
come bashing on the door and frightened the hell out of her by saying - yeah,
he said he was a helper for Jesus Christ and you gotta leave the house now.
Um, she – she told [him] to go away or she’d call the police.
271.
When he made this report to Communications immediately after his visit
to Mrs Healy, SC Pitkethly suggested that Sgt Corrigan at the Police
College at Weston be contacted, because the Operations Support Group (OSG)
had a training day there and they might be able to provide some members to help
with the search. At this point, the staff member receiving radio
communications asked SC Pitkethly to repeat his story for the Communications
Sergeant, and said that he would also update Sgt Geraldine Morris, the Woden
supervisor.
272.
SC Ben Willis also heard radio calls to the effect that as well as
having been seen in the traffic with his weapon, Jonathan had assaulted a
postman. He offered via radio to help in the search for Jonathan, and he
arranged to meet other police officers at the Chapman shops.
When I listen to the radio, I select key words, okay ... the
key words when you get a radio message could tell you all sorts of information
but the way I do it is I just listen to certain words that I believe are
important. ... When you’re riding along sometimes you don’t listen ... You just
partly listen.
274.
At about 1:15 pm, Constable Bailey told Communications that he could
help SC Pitkethly, and over the radio the two officers arranged to meet
near Chapman Primary School.
275.
SC Pitkethly’s suggestion that members of the OSG who were attending a
training day at the nearby Weston Police College might come to Chapman to help
in the search was discussed between Merv Carnall (now a Sergeant but in 2001 a
Detective Senior Constable) and a Sgt Corrigan. Sgt Corrigan authorised DSC
Carnall to take seven other officers attending the OSG training day to Chapman
to help in the evolving situation; they travelled there in a bus and a 4-wheel
drive vehicle.
276.
DSC Carnall explained at trial that in 2001, OSG had no full-time
members; it was made up of police officers who were chosen to become part-time
members after lodging expressions of interest. When performing functions as
part of OSG, team members carried protective gear to protect them from assaults
with certain weapons, including ballistics vests, helmets and shields. OSG
members were trained in containment techniques and methods for disarming
people. The isolation and containment technique that had been devised by DSC
Carnall could only be attempted using the OSG protective equipment. Part-time
membership of OSG did not affect an officer’s powers or duties as a general
duties police officer.
277.
A rendezvous point for police involved in the search was set on Perry
Drive between the Chapman Primary School and the Chapman shops. In fact the
police seem to have gathered in the Chapman shops car park. Police began
arriving, including Senior Constables Pitkethly and Willis, Constable Bailey, Sgt
Morris, the two vehicles containing OSG members, and others. The order of
arrival was not clear, but does not seem to matter. At the request of Sgt
Morris, SC Pitkethly briefed the assembled police officers about the
situation.
281.
At one point Sgt Morris saw some OSG equipment and felt the need to
reiterate that OSG members were only there as searchers and were to search “softly
softly” or “slowly slowly”. She thought she had made this quite clear to DSC
Carnall, and she would not have allowed the OSG members to search while
equipped with their vests, helmets and shields. Her plan was to cordon and
contain, and then if necessary to bring in negotiators with skills in dealing
with mentally disturbed people. ACTMH might have been called in to advise the
negotiators.
283.
Before search orders were finalised, but after Constable Bailey left
the rendezvous point to look for Jonathan along the bike paths, Communications
broadcast the report from Andrew Oakley that Jonathan had been seen near the
intersection of Doyle Terrace and Rickards Street, and was being watched by Mr
Oakley. The broadcast was as follows:
Just received a report, the male person is on Doyle Terrace
opposite Rickards Street. ... The postman’s following him.
285.
SC Pitkethly recalled “everybody basically started packing up and
heading to the vehicles to go up to where the sighting was”. He invited SC
Willis to come with him. SC Willis put a yellow reflective police vest over
the jeans and polo shirt he was wearing and got into SC Pitkethly’s police
car. SC Pitkethly did not ask SC Willis whether he had all his standard
accoutrements (gun, spare magazine, Oleoresin Capsicum (OC) spray,
handcuffs and extendable baton) but expected that SC Willis would have what he
was supposed to have. Only later did he find out that SC Willis had no baton.
289.
Counsel for ACTMH suggested to SC Pitkethly in cross-examination that he
had positioned his car at Chapman shops with the engine running and pointing in
“the right direction” (that is, for travel to Doyle Terrace) and that this had
been done so as to get a start on his colleagues if necessary. SC Pitkethly
conceded that he had reported this in an early police interview after the
incident, but at trial he could not recall leaving the car running, and denied
any such intention, although it was clear that he was keen to find Jonathan and
resolve the situation; as he said in the police interview:
we raced up because we wanted to try and - at least get an
eyeball on him so that we wouldn’t be chasing him anymore - all day long.
290.
It is possible that SC Pitkethly did leave his car running in the hope
of making a quick departure if another sighting of Jonathan was reported. It
is also possible that his comment during the relevant police interview, which
was transcribed as “my car was sitting there running, facing the right
direction” could have been transcribed as “my car was sitting there
running—facing the right direction”, such that “running” might just have been a
quickly corrected mistake. As well, pointing “in the right direction” might
only have reflected an after-the-fact description (the car was as it turned out
pointed in the right direction) rather than a before-the-fact intention. I
cannot see that any inference of impatience, or of wanting to get a jump on his
colleagues, can be drawn, from the actual positioning of the car, without
evidence that SC Pitkethly knew where Jonathan was likely to be seen next; as
previously mentioned, the Chapman shops are roughly in the middle of Chapman,
and if Jonathan had gone up the hill into the reserve, he could easily have
re-appeared on the other side of Chapman, beyond the shops and in the opposite
direction from Doyle Terrace. Accordingly, I find that SC Pitkethly,
while keen to find Jonathan, had no specific desire to find Jonathan before his
colleagues did.
293.
Before the police arrived in Doyle Terrace, Jonathan had an encounter
with another member of the public, and was again observed by the postman Andrew
Oakley.
294.
Around lunchtime, Allan Richter was working at 58 Doyle Terrace with his
son Leonard, installing air conditioning. His van was parked at the front of
the block. He started work on modifying the main switchboard, then went to the
back of his van where he could hear a lot of shouting and yelling, but couldn’t
see anyone. When he got out of the back of the van he saw Jonathan Crowley.
Jonathan had what Mr Richter first took for a sword, but which he then saw
was a blunt object that Jonathan was waving about threateningly.
(a) Jonathan approached
him waving a stick, prodded Mr Richter with his stick, saying that he was Jesus
Christ, and demanded that Mr Richter repent his sins.
(b) Mr Richter treated
this as a joke, told Jonathan that he didn’t have any sins and that Jonathan
should bugger off. He said:
He ... came right up to me ...
poking me with his stick and saying that I must repent for my sins. And I said
to him, well I haven’t got any sins. And I just sort of treated it like a joke
and laughed off and thought well, you know, this guy’s got a problem, I’ll just
ignore him and go away and tell him to bugger off, which I did.
(c) Mr Richter walked away
towards the switchboard, and Jonathan hit him “across the kidney”. Mr Richter
said “Jesus Christ, you can’t do things like that. You just can’t walk around
hitting people”.
(d) Jonathan calmed down a
bit; Mr Richter believed that Jonathan felt better because he thought he’d been
addressed as Jesus Christ.
(e) Jonathan said that as
Jesus Christ he had given Mr Richter life and could take it away again.
(f) Mr Richter backed away
towards the switchboard (he still felt threatened and was not prepared to turn
his back on Jonathan) with Jonathan following him. At the switchboard he
realised he had backed himself into a corner, and decided to repent. He put
his hands in the air and said “I repent my sins”.
(g) Jonathan said “you
know, I am Jesus Christ and I can take you out as quickly as I made you,” then
relaxed a bit, noted Mr Richter’s repentance, prodded him a few more times with
the stick, and walked off singing or chanting religious things, and giving the
tailgate of Mr Richter’s van a whack as he passed it so that it slammed
shut.
299.
I do not doubt that Allan Richter was for some period genuinely
frightened by Jonathan but, having regard to his own actions after his
encounter with Jonathan, I do not accept that he continued to find Jonathan quite
as threatening as he said at trial. Instead of finding his son, seeking safety
inside his customer’s house and contacting the police urgently, as might be
expected of someone who believed that Jonathan definitely “wanted to take a
life”, he went fairly soon afterwards out to the roadside, where he stood and watched
Jonathan wander away down the street, thinking to himself that he should ring
the police before somebody got hurt. In his police interview Mr Richter said
that he had been just about to ring the police when the first police car
arrived in Doyle Terrace.
300.
After his encounter with Jonathan in Lincoln Close, Andrew Oakley
finished his mail deliveries and then noticed a policeman riding a motorbike on
the footpath close to Chapman shops. He spoke to the policeman, said that he
had reported Jonathan’s actions earlier in the day, and suggested that he could
ride up onto the walking track through the reserve at the top of the hill above
Chapman to see if Jonathan was hiding up the hill somewhere.
301.
Mr Oakley explained that he made his suggestion because Jonathan had not
been found since Mr Oakley’s earlier report, he believed that the
policeman’s motorbike would not be able to access the reserve safely, and he
knew that there were a lot of elderly people living in Doyle Terrace and that
the reserve walking trails were used quite a bit.
302.
Mr Oakley rode up into the reserve and then rode back down, emerging
from the reserve via Hertz Place. When he reached Doyle Terrace he turned left
towards Rickards Street. As he did so, Mr Oakley saw Jonathan, without his
shirt but still with his weapon in his hands, walking up Rickards Street
towards Doyle Terrace. He was 30 or 40 metres down the road from
Mr Oakley. Mr Oakley and Jonathan noticed each other, and Jonathan jogged
up the road towards Mr Oakley, although not “aggressively running fast or a
sprint”. Mr Oakley kept a safe distance away on his motorbike and called
the police straight away. His call was recorded as follows:
ANDREW OAKLEY: Yeah, Simon, this is Andrew Oakley, I’m a
postman in Chapman. I believe you have a suspect walking around with a stick.
POLICE ASSISTANCE: Yeah.
ANDREW OAKLEY: He’s on Doyle Circuit opposite Rickard [sic]
Street and I have him in sight at the moment. There’s a few police looking for
him.
POLICE ASSISTANCE: ... he’s on Doyle Circuit opposite
Rickard [sic] Street. In Chapman.
ANDREW OAKLEY: In Chapman. Look for the postman. I won’t
let him out of my sight.
303.
Mr Oakley rode along Doyle Terrace on the low side of the road (even
numbered blocks) with Jonathan following him. Mr Oakley kept 20 or 30 metres
in front of Jonathan but watched him in his rear view mirror.
304.
Mr Richter said at trial that after Jonathan had slammed down the
tailgate of Mr Richter’s van and walked off, he turned left into Doyle
Terrace and Mr Richter watched him walk down Doyle Terrace until the police car
arrived. In his police interview he also referred to Jonathan turning left
from the front yard of 58 Doyle Terrace, but then described him coming back up
Rickards Street, turning left into Doyle Terrace and continuing on down Doyle
Terrace.
305.
Mr Oakley’s evidence at trial was that he saw Jonathan coming up
Rickards Street and turning left into Doyle Terrace, and had him under constant
observation from then until the police car arrived. He rode his motorbike
along Doyle Terrace in front of Jonathan, watching him in the rear view mirror,
while he called the police to report this new sighting. He said he didn’t see
Mr Richter, but was only looking out for Jonathan.
306.
Mr Oakley’s evidence seems to rule out Jonathan disappearing into the
yard of No. 58 for an encounter with Mr Richter that must have taken at least
five minutes and possibly up to 20 minutes (given Mr Richter’s comment in his
police interview that Jonathan had probably harassed him for five to 15 minutes
before anything happened – see [297] above) and then emerging followed by Mr
Richter. Mr Oakley’s evidence seems generally to confirm the accuracy of
what Mr Richter said in his police interview (except for the reference in that
interview to Jonathan turning left, which must have been incorrect since Rickards
Street joins Doyle Terrace to the right of where Mr Richter was watching from at
the front of No. 58). On that basis, Jonathan’s detour into the front yard of
No. 58, where he threatened Mr Richter, must have taken place before Mr
Oakley saw Jonathan coming up Rickards Street.
308.
Allan Richter’s son Leonard was helping install the air conditioning at
58 Doyle Terrace. His evidence as initially given did not add much to that
given by his father except in two important respects, being whether there was
anyone being threatened by Jonathan as the police officers arrived and whether SC
Pitkethly warned Jonathan that he would shoot him before actually firing his
gun. Because of those matters it is necessary to analyse the reliability of
his evidence in some detail.
309.
Leonard Richter went out to the front of the house after the owner of
the house had told him “there’s a big angry man out the front and he’s slamming
the doors on the van”. In the front yard he found his father, “very shook up”,
who described his encounter with Jonathan.
310.
Leonard Richter gave evidence that his first sight of Jonathan was as Jonathan
walked away from the front yard after assaulting Leonard’s father. Leonard
said that Jonathan’s attention seemed to be fixed on someone standing at the
top of the front steps on a property across the road. The suggestion made by Leonard
that Jonathan was approaching another member of the public as the police
arrived is important to the claims about the risks that Jonathan posed to
members of the public before he was confronted by the two police officers.
311.
Leonard Richter went on to give quite detailed evidence of events from
then until Jonathan was shot. However, in several matters of detail his
evidence was internally inconsistent, inconsistent with both the evidence of
other witnesses and the physical evidence from the scene of the shooting, or
inconsistent with the police interview he gave on the day of the shooting. In
cross-examination, Leonard agreed that he might not have seen the whole
confrontation but might have had parts of the story filled in by his father.
312.
Asked to re-tell his story excluding material given to him by his
father, Leonard Richter said he could definitely remember standing next to his
father and could remember hearing loud voices initially; the police car with “Police”
written across the bonnet, in the middle of the road with its doors open; the
two officers and the man with the big “bat”; one of the officers getting hit
with the bat; the firearm being drawn; hearing the words “stop or I’ll shoot”;
the policeman with the firearm retreating two or three steps; the man with the
bat “holding it above his head ... in an aggressive manner as if to strike the
police officer”; the officer pulling the trigger; and seeing the man get shot
and fall to the ground.
313.
Having given this summary of what he could remember directly observing,
Leonard Richter repeated that he had an actual recollection of seeing somebody
across the road at 65 Doyle Terrace (across the road from No. 58 and about one
house block further down Doyle Terrace) towards whom Jonathan was walking just
before the police arrived.
I walked over to dad and said what’s going on and I
immediately saw, um, basically down the street the police officers one and two
...
315.
He said he had seen no-one else in the street at that point except “the
guy – the big ... the guy”. In his police interview he did not mention seeing
the police car arrive, and nor in his oral evidence did he include that event
in the list of matters that he could definitely remember observing.
317.
Leonard Richter’s description of this person is remarkably similar to SC
Willis’s description of the postman Andrew Oakley standing on the other side of
Doyle Terrace, on a brick retaining wall in somebody’s front yard, about 20
metres away from the police car. This is roughly the location identified by
Leonard Richter. By the time of the shooting SC Willis himself was also on
that side of the road in a similar position. It is quite possible that when he
gave evidence, Leonard had in his mind an image of either Mr Oakley or SC
Willis standing on the other side of the road and that somehow, perhaps in the
process of creating a mental picture of those events that he only heard about
from his father, he has placed that image at an earlier point in the narrative that
he now “remembers”.
318.
Constable Bailey, who arrived on the scene seconds before the shooting,
said that before he saw Andrew Oakley or the police car on Doyle Terrace, he
saw a woman with long hair standing beside the road, about 80 metres away from
the police car towards Rickards Street, and looking down Doyle Terrace in the
same direction as Constable Bailey was travelling.
319.
No other witness has mentioned either the person described by Leonard
Richter or the person described by Constable Bailey; Allan Richter however in
his police interview said that after Leonard joined him on the side of the
road, “we were the only two there”. Nor did such a person appear to have been
identified by investigating police officers later, despite Sgt Morris’s comment
in her police interview on the Tuesday afternoon that when she arrived in Doyle
Terrace after the shooting, she was told that there were some witnesses “who
had seen the whole thing” and she thought “someone might have said there was a
woman”. Furthermore, if the person described by Constable Bailey was in the
location he identified (which would have been roughly in line with Allan
Richter), then even if that person had been there since before the police car
arrived, she was not being threatened by Jonathan when the police car arrived,
because he was by then more than 80 metres away from her and heading further
away.
320.
I find that Leonard Richter did not observe Jonathan walking down
Doyle Terrace before police arrived, and in particular did not observe him
walking towards a person standing about 20 metres away from Jonathan on
the other side of the street outside 65 Doyle Terrace.
323.
SC Willis said that they travelled from the Chapman shops “at speed”,
but slowed down in Doyle Terrace. He could not remember whether either he or SC
Pitkethly knew where Rickards Street was or whether they just assumed they would
find it as they travelled along Doyle Terrace. SC Willis was watching out to
his left, realising that Jonathan could have moved from where Andrew Oakley had
reported seeing him. At the trial, neither SC Pitkethly nor SC Willis could
remember turning down Rickards Street, but they did not rule it out, and Allan
Richter’s evidence was that he saw the police car turn onto Doyle Terrace from
Rickards Street.
324.
Once past the Rickards Street intersection with Doyle Terrace, Senior
Constables Pitkethly and Willis came upon Jonathan quite quickly.
325.
The police car stopped close to Jonathan. The reason for this was a
matter of dispute.
326.
SC Pitkethly’s evidence was that Jonathan “appeared from the left quite
suddenly”, walking away from the police car, but he later agreed that he had
seen Jonathan in the middle of the road walking away from him. Jonathan
appearing from the left was not mentioned in SC Pitkethly’s record of interview,
and in cross-examination SC Pitkethly denied that he said Jonathan had appeared
suddenly from the left to explain why he stopped the car so close to Jonathan.
In his first police interview (on the afternoon of the shooting), SC Pitkethly
had said that he stopped the car so close to Jonathan because Jonathan headed
towards them so quickly. At trial SC Pitkethly rejected the suggestions that
he had plenty of time to bring the car to a stop as much as 30 metres away from
Jonathan, that he had instead chosen to stop it close to Jonathan, and that
when Jonathan started moving towards him he had to brake very hard to avoid
hitting Jonathan. He said that his memory was that he had pulled the car up
reasonably quickly as soon as he saw Jonathan, but he didn’t know whether that meant
if he’d been going 5 kph faster he would have hit Jonathan.
327.
SC Willis said that he was looking out to the left but suddenly saw
Jonathan in the middle of the street already facing them and about 20 metres
away.
328.
Allan Richter described Jonathan walking in the centre of the road. Unless
he had come back up Rickards Street also in the middle of the road, he must at
some point have moved across from the kerb to the middle of the road, and it is
impossible to say that this could not have been at roughly the time he was
first seen by the two police officers. As well, it is impossible to say that SC
Pitkethly’s gaze must have been fixed on the middle of the road such that if Jonathan
did appear suddenly in front of SC Pitkethly, that could only have resulted
from Jonathan moving suddenly into the middle of the road; it is quite possible
that SC Pitkethly’s gaze suddenly shifted (perhaps in response to noticing Jonathan
in his peripheral vision) as Jonathan walked at a normal pace into the middle
of the road.
329.
After all the other evidence in the trial had been heard, ACTMH tendered
a further expert’s report that had been served on the other parties only a few
days earlier. The report had been prepared by a surveyor, Anthony Quinn, and
covered two related issues.
330.
The first issue was the point at which Jonathan would first have been
visible to occupants of a car approaching him from the Rickards Street
intersection. Mr Quinn had chosen a point on Doyle Terrace as the notional
point at which Jonathan was standing when the police car came past Rickards
Street and reached the relevant part of Doyle Terrace (Jonathan’s notional
location); he had done this by reference to the police photographs of where
the police car had stopped, and the assumption that Jonathan had been about one
metre further down Doyle Terrace at the relevant point. He had then tested,
and measured, the distance from which one of his colleagues, roughly the same
height as Jonathan, standing at Jonathan’s notional location, was visible to him
as he approached, in his car, from the Rickards Street end of Doyle Terrace.
331.
Mr Quinn’s other set of measurements related to how long it would take a
driver to bring a car to a stop from the various points on Doyle Terrace that
he had identified as points from which a person at Jonathan’s notional location
would have been visible to the occupants of a car approaching from the Rickards
Street intersection.
332.
Counsel for the police objected to the report on various grounds, being:
(a)
relevance, especially noting that the braking experiment conducted by Mr Quinn
could not be shown to be based on facts established, or facts sufficiently
similar to those established, by the evidence;
(b)
all three grounds specified in s 135 of the Evidence Act 1995 (Cth);
that is, that the probative value of the evidence was substantially outweighed
by the danger of unfair prejudice to a party (presumably the police), the
danger that the evidence might be misleading or confusing, or the danger that
the evidence might cause or result in undue waste of time; and
(c)
a breach of r 1241(1) of the CPRs that, in the absence of any
exceptional circumstances, should not be allowed to be remedied by a grant of
leave under r 1242(5).
335.
Doyle Terrace was severely affected by the Canberra bushfires of 2003,
with houses and much mature vegetation being destroyed. It is apparent from a
comparison of the photographs taken by Mr Quinn in March 2009 (no later than
about noon) with photographs taken by police on the day of the shooting
(December 2001, presumably not before about 2:00 pm and possibly quite a bit
later) that the streetscape in 2009 was very different from that of 2001. In
2009, there were trees in front yards, but both the roadway and the nature
strips were relatively unshaded. In 2001, there were many trees along the
edges of Doyle Terrace that at some times of the day provided solid or dappled
shade over the road, in some cases across the full width of the road surface. Given
the timing of the police photographs, however, there may have been more shade shown
in those photographs than was cast at the time of the arrival of the police car
at around 1:35 pm on the day of the shooting. Allan Richter said in his police
interview that when he was watching events in Doyle Terrace, “the sun was out
... there was no shadows ... it wasn’t like in shade or anything at that
particular time because the sun was pretty well straight up there”. However,
the numbers, height and location of the trees shown in the two sets of photographs
suggest that visibility on the relevant stretch of Doyle Terrace in 2001 was far
more likely to have been affected by shadows cast by trees than it would have
been when Mr Quinn took his measurements.
336.
Counsel for ACTMH did not press for the admission of material prepared
by Mr Quinn about how long it had taken him to bring his car to a stop
after he had seen his colleague standing in Jonathan’s notional location.
337.
At 1:35:57 pm, a radio call was made from SC Pitkethly’s car to Communications.
The words were transcribed from Communications tapes as:
Yeah, there he is, yeah got him now.
338.
The call did not identify the speaker, SC Pitkethly’s call sign (Tango
84) or the caller’s current location; Communications assumed it was Tango 19 (Constable
Bailey), but Constable Bailey reported that it wasn’t him, and Communications asked
“Vehicle that has apprehended the male identify yourself”. There was no reply.
339.
Neither SC Pitkethly nor SC Willis was able to be definite about how the
call was made or who said what. SC Pitkethly, after listening to the call
record played in court, agreed that there were two voices recorded and guessed
that the first voice, which sounded to be more in the background, was probably
his, but emphasised that he was not using the radio in the police car and has
never accepted “who the voices are in that radio call”. SC Willis, also having
listened to the record of the call played in court, agreed that there seemed to
be two different voices recorded, and thought that the louder voice, saying “yeah
got him now”, was probably his, while the other voice was SC Pitkethly’s.
340.
SC Willis agreed that in this call he should have given their location,
but did not accept that the failure to give a call sign was important. He said
that he would have given a location next but that by that point the car was
stopped and, because Jonathan had advanced on them so quickly and so aggressively,
he had to choose whether to get out of the car and help SC Pitkethly or to use
the radio. SC Pitkethly also rejected the suggestion that he had failed to
give either a call sign or a location because he didn’t want, or didn’t see any
need for, other police officers coming to his aid. He disputed that the
message gave no location information, but could not explain what information it
did give.
342.
Counsel for ACTMH in final submissions said of the call as recorded: “there’s
not a trace in the voices there of pumping adrenalin, hype and excitement”. I
accept the proposition that no particular excitement is detectable in the
voices; the inference that neither speaker was excited, or affected by an
excess of adrenalin, is available but is not the only one available to a
listener who is not familiar with the temperament and moods of the two
officers.
343.
I find that SC Willis got out of the car without passing
on location information because his trained response was to go with his
partner; in doing so, I make no finding about SC Willis’s implied explanation
for why SC Pitkethly got out of the car (that Jonathan had advanced so quickly
and so aggressively) or about whether that would have been an appropriate
response by SC Pitkethly to any such action on Jonathan’s part. Despite SC
Pitkethly’s somewhat defensive response to questions about this failure, I am
satisfied that, as the driver of the car, he was not primarily responsible for
using the radio, and I find that his failure to give a location or call
sign before getting out of the car was not a deliberate act intended to delay
the arrival of other police officers.
344.
There were two civilian witnesses to the encounter in Doyle Terrace
between Jonathan and the two police officers. Allan Richter was standing on
the side of Doyle Terrace outside No. 58, from where he was watching Jonathan
walk away after their encounter. Andrew Oakley, the postman, was on the other
side of Doyle Terrace, further down the street. A third civilian witness
(Leonard Richter) and a third police officer (Constable Bailey), arrived during
the confrontation and saw its closing stages. There is much common ground
between all the witnesses and participants, but important respects in which
their evidence differs.
345.
In considering the final series of events, being the police encounter
with Jonathan in Doyle Terrace, it is necessary to bear in mind the speed with
which those events unfolded. The Communications record shows that Jonathan’s
sighting by Senior Constables Pitkethly and Willis was reported at 1:35:57 pm,
and Constable Bailey’s report that Jonathan had been shot was made at 1:36:39
pm. That is, the whole encounter, possibly including the time it took SC
Pitkethly to stop the car, took 42 seconds.
346.
As Jonathan walked down Doyle Terrace away from the Rickards Street
intersection, the police car driven by SC Pitkethly came along Doyle Terrace,
past Allan Richter standing outside No. 58 and towards Andrew Oakley, who was further
down Doyle Terrace beyond where Jonathan was walking in the middle of the road.
347.
Andrew Oakley was riding his motorbike about 20 or 30 m in front of
Jonathan but watching him in his rear view mirror. He noticed Jonathan stop,
put his hands in the air with his weapon above his head and turn back away from
Mr Oakley. Mr Oakley did a U-turn on his motorbike, stopped on the high
side of the street, and watched the police car arrive. He did not hear any
sirens or screeching. He estimated that the police car stopped about 5 to 7
metres away from Jonathan.
348.
Allan Richter said that the police car came up Rickards Street and
turned into Doyle Terrace fairly quickly; the corner with Rickards Street is a
big open corner with a lot of roadway, and can be negotiated very fast. He
said that the police car was going at least 60 km per hour and possibly up to
80 km per hour before the brakes were applied. The car stopped very quickly
about 70 or 80 metres away from where Allan Richter was standing, but very
close to Jonathan, almost touching him. Mr Richter said he thought it was
going to hit Jonathan. Although the car had stopped quickly it had not skidded
to a halt, because the car had ABS brakes and would not skid; Mr Richter did agree
that ABS brakes could make a sound like a skid.
349.
SC Pitkethly denied that the car had skidded to a stop, but he agreed
that even the sound made by a car with ABS brakes stopping suddenly could be
alarming to a mentally disturbed person.
350.
SC Willis said that the car stopped 5 or 6 metres away from Jonathan.
352.
Having regard to Mr Quinn’s measurements (at [334] above) I find that
SC Pitkethly could have seen Jonathan, at best, about 90 metres ahead of him. Having
regard to the evidence that SC Pitkethly was not looking straight ahead of him
at all times as he travelled along Doyle Terrace, evidence of the presence of a
number of mature trees close to the kerb of Doyle Terrace that may have
affected visibility on the road, and the evidence that SC Willis did not see Jonathan
until he was only about 20 metres from the police car, by which time Jonathan
was walking towards them and SC Pitkethly had already braked, I find that
SC Pitkethly probably saw Jonathan first when Jonathan was somewhat less than
90 metres away but still considerably more than 20 metres away.
353.
There is no evidence before me of how long it would have taken SC Pitkethly
to bring the car to a stop from a speed of roughly 60 kph. Basic mathematics
indicates that at a constant speed of 60 kph the car would have covered 90 metres
in 5.4 seconds or 50 metres in 3 seconds, and presumably any deceleration
would have extended the relevant time, but there is nothing I can say about
whether bringing the car to a stop within the relevant distance would have
required ordinary or excessive braking.
355.
I note also that there is no evidence that Jonathan tried to get out of
the way of the car as it approached, or other evidence that he appeared to be
specifically frightened by, or angry at, the speed at which the police car approached
him or how close it came to him; SC Willis did refer to “the look on his eyes
... the hatred directed towards us” as the car approached, but did not suggest
that this related to Jonathan’s view about the approach of the police car
rather than just to his general attitude. This is not to say Jonathan was
comfortable, let alone pleased, about the presence of the police car, only that
there is no basis to suggest he was enraged or even particularly distressed by
its manner of arrival.
358.
Once Mr Oakley saw the police car stopping and Jonathan turning
towards it, he undid his helmet, put it on the bike, and started to walk slowly
up towards them.
359.
Apart from Allan Richter’s evidence at
trial about where the car stopped, which I have already rejected, both the
evidence given by Senior Constables Pitkethly and Willis and by Mr Oakley, and
comments made by Mr Richter in his police interview, suggest that Jonathan had
space to move towards the police car, and did so as the two police officers got
out, rather than only after he was first sprayed with OC spray. SC Pitkethly
said that Jonathan had taken a few steps towards the car and then stopped, that
he did not respond to SC Willis’s attempts at communication, and that he headed
towards them with his sword above his head. SC Pitkethly thought that Jonathan
was going to attack them because of the way he was holding the sword above his
head, the way he was looking at them, and his approach straight towards them.
Mr Oakley also described Jonathan adjusting his kendo stick from a
surrendering position to an attacking position as he moved towards the police
car (although the particular descriptions of the stances interpreted as
attacking are different; SC Pitkethly referred to Jonathan holding the kendo
stick above his head but Mr Oakley says that Jonathan brought it down into
an attacking position).
361.
In his first police interview, SC
Willis said that when they first saw Jonathan in Doyle Terrace, “the gentleman
on the Australia Post motorbike was about one o’clock and maybe metres away, um
keeping his distance”, but at trial he said that he was not sure at what point
he became aware of Andrew Oakley’s presence on the other side of the street: “it
may have been after [SC Willis got out of the car] but ... I can’t say that
with any certainty”.
362.
SC Pitkethly said that when he
stopped the police car in Doyle Terrace he was concerned “for the safety of the
public” and also concerned that Jonathan “would depart again”; he did not
mention seeing Andrew Oakley in the street.
363.
Neither police officer mentioned
seeing Allan Richter.
364.
I find that neither SC Pitkethly nor SC Willis had noticed
either Andrew Oakley or Allan Richter in Doyle Terrace before getting out of
the police car.
366.
The nature of the initial police communication with Jonathan was the
subject of conflicting evidence.
367.
Andrew Oakley said that when he was a few steps in front of his bike, no
more than 25 metres away from the police car; “it all started”. He said he had
a clear view of what was occurring, which was “the doors popped open, the
capsicum spray, and [Jonathan] attacking the first officer”.
368.
Mr Oakley said he had his bike helmet on initially and might not have
finished taking it off until about the time that Jonathan struck SC Willis. Mr
Oakley said that with his helmet on he could not hear normal conversation at a
distance of more than about 5 metres, because it would be “muffled or
mumbled”.
369.
However, Mr Oakley said, as soon as the police car doors opened he could
hear “yelling or screaming”. He could not recall whether both officers were
shouting, but he heard words to the effect of “drop your weapon. Get on the fucking
floor”; he could not hear anything said by Jonathan. The officers demanded Jonathan
put down his weapon lots of times because Jonathan was ignoring the demand. There
were no friendly soothing voices.
370.
Mr Oakley said that after the police started yelling, Jonathan
lowered his stick and got into a posture with both hands on the bottom of the
weapon that Mr Oakley called a “ready stance”.
371.
Allan Richter was on the other side of Doyle Terrace and about 70 or 80
metres up the street from where the police car had stopped. He saw the two
officers jump from the vehicle at the same time and tell Jonathan to drop his
weapon. Mr Richter said he could hear the police officers clearly from
where he was, because they were yelling at Jonathan right from the beginning to
lay down his weapon. He said there were no soft voices, and no “calm
conciliatory negotiations or conversations” once the police car stopped. In
his police interview Mr Richter had said that the two police officers “both
jumped out ... sort of leaned over the doors and screamed at [Jonathan]”.
Tried negotiation then Ben was doing that so I shut up
because you only want one person doing negotiating.
373.
At trial SC Pitkethly agreed that he and SC Willis were both telling Jonathan
to drop his weapon. He conceded that, as described by Mr Oakley in his police
interview, he or SC Willis might have said, “Stop. Put down your weapon. Drop
your weapon. Get on the floor”, and said that this would have been a reasonable
direction for them to give. He asserted that telling a person to drop a weapon
counts as “negotiation”, explaining:
Police negotiation revolves around getting what we need done,
so if that’s what has to be said in a negotiation, well, it will be said.
374.
SC Willis asserted that his first words on getting out of the car were
to the effect that Jonathan should calm down, but he agreed that he and SC
Pitkethly also told Jonathan to drop his weapon. He said that he and SC
Pitkethly used raised and firm voices when they first got out of the car, but
denied that either of them yelled or screamed, despite having mentioned
screaming in his police interview; he explained at trial that this might have
reflected his memory of SC Pitkethly screaming at Jonathan just before he shot
him.
375.
There was some evidence that Jonathan had also spoken to the police
officers during their encounter. SC Pitkethly conceded, however, that before
being sprayed Jonathan had only said things about Jesus and had not made any
threats.
376.
Where there are inconsistencies in this evidence, I am inclined to
accept the evidence of the two civilian witnesses, Mr Oakley and Allan
Richter, over the evidence of the two police officers. In doing so I note:
(a)
the general agreement that the police officers gave directions to Jonathan
about dropping his weapon, Andrew Oakley’s evidence that Jonathan was also told
to get on the floor, and SC Pitkethly’s agreement that a reasonable direction
would have combined references to dropping the weapon with a reference to
getting on the floor, as well as his assertion that telling someone to drop a
weapon is negotiation;
(b)
that Mr Oakley and Mr Richter, being observers rather than participants,
may have found it easier to make an objective assessment about what was
happening in front of them; and
(c)
that Mr Oakley and Mr Richter both made it clear in giving evidence that
they had no criticisms of the police or how they had handled the incident
(Mr Richter said that the police had done “a terrific job”), so there is
no reason to believe that they have exaggerated their evidence to damage the position
of the police.
(a)
that when the two police officers got out of the car, one or both of
them immediately began yelling at Jonathan to drop his weapon;
(b)
that Jonathan was instructed to get on the ground;
(c)
that at least the yelled order to drop the weapon was repeated several
times; and
(d)
that there was no conciliatory conversation, no “slowly slowly” or “softly
softly” approach, and nothing else that could properly be described as
negotiation; and
(e)
that while the police officers were yelling at Jonathan, he brought the kendo
stick into an attack or “ready” position.
378.
The exact sequence of events in the next few seconds until Jonathan hit SC
Willis with the kendo stick is very unclear. Allan Richter gave evidence that
one of the officers had used a spray, which didn’t work, and then Jonathan:
moved towards the ... passenger side [of the police car] ...
and started a confrontation with the other officer ... [by] belting him with
the stick.
379.
Each of the other three witnesses, Andrew Oakley and Senior Constables
Pitkethly and Willis, gave more detailed evidence about the events. For each
witness, some of that evidence differed from what he had said in his police
interview, and from what the other two witnesses said.
380.
A number of references were made in evidence to the concept of a “reactionary
gap”. This appears to refer to the minimum distance between a police officer
and a person posing a threat to the police officer. Federal Agent Rath
explained:
It’s been found through trials, actually time and time again,
that the minimum reactionary gap is 7 metres for a person to respond or to
reaction to an overt reaction and the easiest way, the way they demonstrate
that - sorry, and the time it takes a person to cover that 7 metres. And the
way that came about was through a knife attack. It’s been found through trial
and through training trial and project that a person at 7 metres, draws a knife
and runs at another person within 7 metres, that person will - the subject of
the attack will not have enough time to react to that attack. And outside that
7 metres there is still - there is a possibility there is time to react to
that.
381.
I assume, since Federal Agent Rath’s explanation seemed to relate to the
time it would take for the threatening person to cover the distance, and the
time it would take a police officer to react to the movement of the threatening
person, that the 7 metres applies not just to knives but to any weapon that can
only be used at close quarters, and therefore that 7 metres is also the
reactionary gap in relation to a kendo stick.
382.
I have at [351] above found that the police car stopped within a few
metres of Jonathan, but not so close to him that he had no capacity to move
forward. Even taking account of the length of the bonnet of the police car, as
to which there was no specific evidence, this suggests that when the two police
officers got out of the car they had, at best, the bare minimum reactionary
gap.
383.
The significance of this, however, was not clear. Federal Agent Rath
said that “if the circumstance was conducive” it would have been appropriate
for the two police officers to move into that space (thus reducing the
reactionary gap) but that “If the circumstances were not conducive to that,
then the answer is tactical disengagement, to effectively back off”.
384.
Counsel for the police in final submissions put the proposition that the
reactionary gap when the two police officers got out of the car was a few
metres, being “from behind the car door to the end of the bonnet”, and relied
on the abbreviated reactionary gap as evidence for the proposition that the two
police officers would not have advanced towards Jonathan because that would
have further narrowed the reactionary gap.
385.
However, it seems that the two police officers may have had an
inadequate reactionary gap even when they got out of the car, but that this did
not apparently deter them from doing so. Nor do I have any basis for accepting
that the two police officers were mindful of the reactionary gap issue at all,
given that they did get out of the car in those circumstances. Accordingly, I
consider that the reactionary gap concept has no particular significance in
determining any factual matter in issue.
386.
When the police officers got out of the car each of them left his door
open and stood in the V created by the open car doors; evidence to this effect
was given by Andrew Oakley and Allan Richter, and by SC Pitkethly about his own
actions. Mr Oakley said that each officer had his capsicum spray in one
hand, with his wrist held by his other hand. SC Willis initially gave evidence
that when he first got out of the car he did not have his OC spray but would
have had his hands up and open, palms facing Jonathan, to show he was not a
threat. In cross-examination he said that he might have got his OC spray out
as he got out of the car, and might have put it away when he saw that SC
Pitkethly had his OC spray out.
388.
What is clear is that Jonathan did not comply with the orders to put
down his weapon, and that when he got close to the front of the car he was
sprayed with OC spray. SC Pitkethly says he sprayed Jonathan, thinking “that
might solve the problem” (the problem apparently being Jonathan’s failure to put
down the weapon).
389.
Andrew Oakley did not have a clear recollection of the order in which the
two police officers used their OC spray, or of what Jonathan was doing before
being sprayed. At one point in his police interview Mr Oakley said that SC
Willis had sprayed Jonathan and that was when Jonathan came at him. However at
other points in the interview he seemed to be suggesting that Jonathan had
approached SC Willis when the officers first got out of the car, and that Jonathan
might have been sprayed in response. At trial he had a different recollection,
being that Jonathan had started moving towards the car before he was sprayed,
and that he had been sprayed by SC Pitkethly when SC Pitkethly first got out of
the car but while Jonathan was still in front of the car.
390.
SC Pitkethly’s spray hit Jonathan across his eyes (whether this was the first time Jonathan was sprayed does not seem
to matter). Jonathan wiped the OC spray away from his eyes, but it had no
other effect on him. He headed across in front of the police car towards SC
Willis. It is not clear whether he did this to get away from SC Pitkethly
or because SC Willis had also sprayed him, or whether SC Willis used the OC spray
in response to Jonathan approaching him. SC Willis used the spray and got
a direct hit across Jonathan’s eyes. Again the spray had no apparent effect on
Jonathan. He continued advancing on SC Willis, who at some point had come out
from behind the car door. According to Mr Oakley, Jonathan was still being
sprayed until he was about one metre away from SC Willis. Mr Oakley could see
the spray hitting Jonathan’s face, although he couldn’t tell whether the spray
was getting to his eyes.
(a)
that both police officers got out of the car holding their OC sprays
ready for use;
(b)
that SC Pitkethly, without retreating, sprayed Jonathan when he failed
to comply with the order to put down his weapon; and
(c)
that SC Willis sprayed Jonathan (possibly not for the first time) as Jonathan
approached him after being sprayed by SC Pitkethly.
392.
These findings are made in the context of my finding at [360] above that
Jonathan moved towards the police car after it stopped and as the police
officers got out of the car. I am satisfied that the period between when the
car stopped and when the OC spray was first used was only a few seconds, and
that the actions of Jonathan and the police officers were effectively
simultaneous; I cannot say either that Jonathan only approached the police car
in response to the use of OC spray or that the use of OC spray was a considered
response to Jonathan’s failure to comply with police orders.
393.
Whether or not the OC spray was used at an appropriate distance, it
seems to have reached its target in both cases, but without having any apparent
effect on Jonathan’s behaviour in that it did not stop his progress or distract
him into putting down his weapon. There was further, equally ineffective, use
of OC spray as the confrontation continued.
394.
Jonathan continued towards SC Willis. Allan Richter said that there was
a lot of yelling and screaming. Jonathan was “still yelling and screaming and
asking for [repentance]” and at the same time SC Willis was yelling for him to
lay down his weapon.
395.
SC Willis’s initial evidence was that he retreated to the rear of the
car, pursued by Jonathan, and then moved further back from the rear of the car
towards the bushes on the side of the road. SC Willis’s claim to have been
forced back beyond the rear of the car is not supported by any other evidence.
397.
SC Willis said that when Jonathan attacked him, he had “gone to ground”
and assumed the foetal position in an attempt to protect himself from the
attack. He had done this, he said, because he was in fear for his life. He
had never seen a kendo stick before, and believed that if Jonathan hit him on
the back of the head with the stick, it could “cave [his] skull in” and kill
him. SC Willis said that he was hit twice by Jonathan, once across his
shoulder blades and the second time closer to his head; the first strike had
connected as or just after he hit the ground. In his police interviews SC
Willis had not mentioned being curled up on the ground in a foetal position,
but at trial he said that this was because no-one had asked him his exact
location and his recollection now was that he was on the ground.
398.
SC Willis’s mobile phone was found after the incident on the ground beside
the driveway of 54 Doyle Terrace (adjacent to the boundary with No. 52),
just beyond the front of the police car. He could not recall whether he
dropped it or threw it away while getting out his OC spray, or if it was
knocked, or fell, from his belt. In cross-examination, SC Willis agreed that
the bush he fell into was in front of the police car. However, he recalled
that he retreated to the rear of the car then backed away from there into the
bushes, and later repeated that his recollection was of retreating into the
bush from behind the police car.
399.
However, having regard to Andrew Oakley’s evidence, the evidence of Allan
Richter that SC Willis dropped out of sight, “almost opposite ... the doorway
... of the car, straight off to the left-hand side”, the place where SC Willis’s
phone was found, and the fact that SC Pitkethly responded to the attack on SC
Willis by approaching Jonathan around the front of the car (see [403] below), I
find that SC Willis was standing next to the car, probably close to but
forward of his passenger side door, when he was first hit by Jonathan. This
finding does not call into question SC Willis’s evidence that Jonathan
came towards him, but it does exclude a finding that Jonathan pursued him from
the front of the car and beyond the rear of the car. It also implies that SC
Willis advanced towards Jonathan, at least to the extent of coming out from
behind the car door and moving towards the front of the car.
400.
It is not clear from the evidence whether SC Willis found himself on the
ground as a result of the first blow, which both Mr Richter and Mr Oakley
observed, or as a result of deliberate evasive action taken by SC Willis. Having
regard to the evidence of Mr Oakley and Mr Richter that they saw the first
blow, including their evidence about the force of the blow (Mr Richter) and
where SC Willis was hit (Mr Oakley), the indication in SC Willis’s police
interview that he was standing up when he was hit, and his concession that what
was in his police interview was more likely to be correct than what he
remembered at trial, I find that SC Willis was hit once by Jonathan
while he was still standing, and a second time after he was on the ground.
401.
SC Willis was not seen by anyone from that point until just before Jonathan
was shot; Andrew Oakley in his police interview said that by the time the shot
was fired, SC Willis was coming across the front of the police car to help
SC Pitkethly, and was about 10 metres away from SC Pitkethly and to the
side when the shot was fired.
402.
Constable Bailey said that when he reached the scene of the
confrontation between Jonathan and SC Pitkethly, SC Willis was on the high side
of Doyle Terrace (that is, across the road from where he had gone into the
bushes) trying to move, but he was bent over and there seemed to be something
wrong with him. Constable Bailey said that he wasn’t looking too well.
403.
After SC Willis was hit, SC Pitkethly came quickly around the front of
the car, looking to Mr Oakley as if he was going to defend his partner. SC Pitkethly
attracted Jonathan’s attention by calling out to him. Mr Richter said that Jonathan
turned and approached SC Pitkethly “abruptly, fairly quickly ... waving the
stick again”.
405.
Mr Richter, who was roughly 60 or 70 metres away from Jonathan by this
point, gave no detailed evidence of events after the reported use of OC spray
as Jonathan pursued SC Pitkethly towards the rear of the car. He said “that’s
when it all happened so quickly that I don’t remember any more after that”.
408.
I find that SC Pitkethly took out his baton and used it to shield
himself from the blows that Jonathan aimed at him, that the baton absorbed most
of the force of the last blow in this sequence and that as a result the baton
then finished up on the ground.
409.
Mr Oakley said that when SC Pitkethly was about 12 metres behind the
police car, another swing of the kendo stick by Jonathan gave SC Pitkethly time
to step back a further one or two paces and pull out his handgun.
410.
SC Pitkethly said that Jonathan was only a couple of paces away with the
stick above his head but “off to an angle”. He believed Jonathan was going to
hit him across the head with the stick. Mr Oakley said that Jonathan’s last
lunge involved the stick in a ready position for attacking, but somewhat
confusingly described the situation as follows:
And that lunging forward, that’s with the stick I take it, or
---?---That’s correct.
Were you in a position to see where that appeared to be
directed to?---The – the last lunge?
Yes?---He basically had the stick in a ready position for
attacking, i.e., he would – he wouldn’t have even got one step forward before
the shot ---
But was it, in giving that answer you are demonstrating
holding a stick in a more vertical than horizontal position, is that
correct?---That’s correct, I mean, he’s holding it in a vertical position next
to his body ready for either a sideward swing or a vertical – sorry, horizontal
swing.
Yes?---And/or from that position he could then raise it and
do a vertical, either of those can come from that position.
411.
Constable Bailey saw Jonathan advancing on SC Pitkethly, who was backing
off. Jonathan was no more than 1.5 metres away from SC Pitkethly when he
raised the kendo stick again. SC Willis said that Jonathan had the kendo stick
in an almost vertical position against his shoulder.
412.
Without attempting to resolve the meaning of Mr Oakley’s description of Jonathan’s
handling of the kendo stick at that point, I find that Jonathan’s action
immediately before SC Pitkethly fired at him could reasonably have been
interpreted as seriously threatening.
413.
SC Pitkethly said, both at trial and in his first police interview, that
before producing his gun, he had repeatedly told Jonathan to drop his weapon
and warned that he would have to shoot; specifically, he twice said something
like “stay back or I’m going to have to shoot you”. SC Willis said that he heard
SC Pitkethly scream “I’ll have to shoot” twice.
414.
Demands that Jonathan drop his weapon were heard by Allan Richter and by
Constable Bailey. Mr Oakley said that when SC Pitkethly produced his gun,
he yelled at Jonathan “don’t fucking move”. In his police interview Mr Oakley
said that SC Pitkethly told Jonathan to stop, drop the weapon, stay where he
was, not to come any closer, but that SC Pitkethly had not threatened to shoot Jonathan
or warned him that he would shoot. None of Allan Richter, Constable Bailey and
Mr Oakley reported hearing SC Pitkethly make any threat or give any warning
that he would shoot. Leonard Richter, who at this stage may well have been
present, said in evidence that he remembered hearing “stop or I’ll shoot” two
or three times; since Allan Richter does not claim to remember these words,
there is no reason to assume that Leonard adopted them from his father’s
description. On the other hand, Leonard in his police interview struggled to
remember what was said; even when told this was an important question, he could
only come up with “something about dropping a weapon”. Leonard might in fact
have heard “stop or I’ll shoot”, but he could just as easily have “remembered”
the shouted demands made by SC Pitkethly in the form routinely used in TV
police dramas.
415.
I suspect that SC Pitkethly would have been well aware of the general
obligation to give a warning before using a gun (see para 3.2(2) of
Commissioner’s Order 3 at [612] below) and probably gave such a warning almost
instinctively. It would not be particularly surprising if the civilian
witnesses did not distinguish a warning from all the other yelling they had
been hearing since the two police officers got out of the car, and Constable
Bailey’s selective listening approach may have filtered out the warning.
416.
Mr Oakley said that Jonathan was about to lunge but saw the weapon,
hesitated, then lunged forward and the gun fired. Jonathan fell to the ground,
out the front of No. 54 but close to the boundary with No. 56.
417.
As soon as he fell, SC Willis, who had been watching from across the
road, ran over to Jonathan with his own gun drawn.
ADDISON: No? Can you move your left foot?
JONATHAN: No sir.
ADDISON: What about your right one?
JONATHAN: No sir. What do you have to do to bear the sins
of the world? ...
JONATHAN Can you give me anything for pain sir?
ADDISON: How bad’s the pain?
JONATHAN: Oh two thousand
years worth.
...
JONATHAN: Somebody wash my eyes.
ADDISON: Yeah we’ll give them a good washing when we get at
the hospital okay.
JONATHAN: Oh dear I hope
I can hold on - oh dear please don’t let me die, the world will end.
...
ADDISON: Yeah they give you something for the pain in a sec
mate. Good man. Open up. Open up.
JONATHAN: Oh Jesus. Oh please don’t let me die. For all
the sins of the world. For all you guys you know.
419.
In his police interview, Mr Addison described Jonathan’s demeanour in
the ambulance:
He appeared quite calm ... other than when he was rambling
with these prayers and he was always very easy to talk to, like I asked him a
question, he answered. He wasn’t ... aggressive or ... abusive at all.
420.
I find that until the actual shooting, SC Pitkethly continued to
demand that Jonathan stop, back off or drop his weapon and, immediately before
using his gun, warned Jonathan that he would have to shoot. I also find that
SC Pitkethly’s demands were clear, that Jonathan was aware that the gun had
been produced, and also, having regard to the evidence of Jonathan’s state of
mind immediately after the shooting, that whether or not SC Pitkethly explicitly
threatened or warned Jonathan about the gun would have made no difference to Jonathan’s
response.
421.
SC Willis gave evidence that after assuming the foetal position in the
bushes near the police car, the next thing he remembers is being on the
opposite side of the road, in the gutter. He was not in pain but felt “fuzzy-headed”.
From that location, it seems, he saw SC Pitkethly about 10 or 15 metres behind
the police car with his baton held above his head like dumbbells held by a
weight-lifter. He saw Jonathan hit the baton with the kendo stick twice and
saw the baton fall to the ground. When he saw SC Pitkethly get out his gun, SC
Willis took out his own gun, although he remembered being aware that his
thought processes were “scrambled” or “fuzzy”, and being unsure whether he was
in a fit state to handle a gun. SC Willis said that he had crossed the road in
order to get into the “10 to 2” position (which appears to relate to the face
of an analog clock) so as to support SC Pitkethly. He explained the 10 to 2
position as:
an indication of position where you can see the threat and
you can see your partner but the person who is a threat can’t see you, your
partner can, and you’re not in line of fire of your partner. ... The position
is basically about having a safe position for yourself and your partner whilst
keeping the threat under observation.
422.
SC Willis drew a diagram in which he identified himself as the centre of
the clock face, SC Pitkethly at the 10 o’clock position and Jonathan at the 2 o’clock
position. While SC Pitkethly and Jonathan were facing each other, SC Willis
could see both of them more easily than either of them could see him. In
cross-examination, SC Willis conceded that he didn’t need to cross the road in
order to get into a 10 to 2 position, but he denied that he had crossed the
road after finding himself in the bushes to make himself look more courageous
(it did not become clear to me what was particularly courageous about crossing
the road). What SC Willis was not asked and did not attempt to explain was why,
since any threat to SC Pitkethly was clearly being played out there and then,
there was any benefit to SC Pitkethly in having SC Willis in a position where
he could keep the threat under observation (rather than in a position where he
could help his partner actually deal with the threat).
424.
At some point SC Willis had abandoned the high visibility vest on the
far side of the road; he was not sure whether it was before or after the
shooting, but thought it might have been to make himself a less obvious target
once he had taken up the 10 to 2 position. Constable Bailey gave evidence that
after Jonathan was shot, SC Willis was on the roadway and to the rear of
the police car wearing his yellow police issue vest and blue jeans. The
significance of when the high visibility vest was abandoned, although the
subject of both cross-examination and re-examination, did not become clear.
(a)
the fact that the period between when SC Willis was hit twice on his
upper body, including possibly on the back of his head, and when Jonathan was
shot, was probably less than 30 seconds; and
(b)
Constable Bailey’s evidence of SC Willis not looking too well and appearing
to have something wrong with him; and
(c)
SC Willis’s evidence about his thought processes after he was hit, and
the point at which he became aware of SC Pitkethly’s struggle with Jonathan;
and
(d)
SC Willis’s comments about the effect of SC Pitkethly drawing his gun;
I find that SC Willis did not behave in a
cowardly manner or inappropriately fail to come to the aid of his partner. I
reach this conclusion despite suspecting that SC Willis in his evidence at
trial, rather than simply relying on his injuries and the very short time
between when he was injured and when Jonathan was shot to explain his absence
from the encounter with Jonathan, had “remembered” events that might be seen to
place his actions in a more favourable light.
427.
In his police interview SC Pitkethly had said that, as they drove, they
did not discuss anything, but:
No, more lookin’ out the windows going’, “Which street is
it? Where is he?” bla bla bla - tryin’ the work out where the - I know if they
gave us a - I think they gave us a cross street and we’re tryin’ to find the
cross street and tryin’ to look for him and look for the postie and that was
nearly the entire - that would’ve been all we were takin’ about - lookin’ for
this bloke.
428.
Specifically, SC Pitkethly confirmed that they did not discuss what
precisely they would do when they found Jonathan, nor what they would do if he
wasn’t at the location that had been advised by Communications. He thought it
was unlikely that they had discussed using OC spray and he didn’t agree that he
knew that SC Willis also had his OC spray when they got out of the car.
And on that journey from the time you left the briefing you
didn’t make any plan with Glen as to what you were going to do if you found the
person, did you?---No, you can’t plan for every contingency.
Well, you didn’t try to, did you?---No, I – well, our plan
was still, as stated previously, was in the first instance just to locate him,
so we knew where he was.
Yes, but for example you didn’t say to Glen or he say to you
anything like ‘If we find him you do the talking’?---No. I - - -
That would have been a good idea, wouldn’t it?---Not necessarily.
Sometimes - part of the training we’ve received in Mental Health training is
that people with a mental dysfunction may respond better to one person than
another. We didn’t know in what circumstances we’d find, we didn’t know if it’d
be a case of right next to him in the street or, you know, if he’d been in a
yard on my side of the car I would have got there first and would have
naturally started speaking to him first. As it turns out he was - he was - went
to Glen’s side of the car first. If it had been a negotiated situation and we’d
had time to talk and - and things weren’t working with - with Glen talking to
Mr Crowley I may have attempted to speak to him, and vice versa. We’ve got all
the guidelines in the world as to how to do our job, the reality is a lot of it
is reactive. You can’t engage the - the handbook, so to speak, until you know
exactly what you were dealing with. At that time we knew we were dealing with
a person with a mental dysfunction. How it’s actually panned - things would pan
out and what would be the best approach we didn’t know. We couldn’t possibly
know.
One of the possibilities that certainly was in your mind was
this, wasn’t it? That if you found him and approached him he might bolt, run
away from you?---Yes. ...
And you didn’t have any discussion with Glen about what you’d
do if that happened, did you?---Well, again that’s not something that really
requires discussion. We would have run after him and Glen would have radioed
in our location on the portable police radio, rather than the car radio.
430.
There is also scant evidence of any individual planning being done by
either police officer. It seems likely that each of them had an intended
outcome in his mind at some stage before they reached Doyle Terrace, but exactly
what it was is less clear.
432.
SC Pitkethly said that if Jonathan had run away he and SC Willis would
have followed him, either in the car or on foot, but on foot police officers
are often slowed down by all the equipment they are carrying. They would have
tried to keep Jonathan in sight while calling others to help round him up.
433.
SC Pitkethly agreed that he and SC Willis would not have been able to
control Jonathan, but said that they could have communicated with him. SC
Pitkethly had said in his first police interview, explaining why he had called
in OSG, that you couldn’t cordon and contain with only two people, and in
cross-examination he agreed that “you can’t cordon someone off and contain them
with two people, you need numbers of people that are trained”. In later
cross-examination, however, he said that “you can cordon and contain between
two officers in plenty of [cases]. It depends on the situation at the time”.
Pressed, however, about whether the two officers were attempting the impossible
in trying to cordon and contain Jonathan by themselves, he took some time to
reject that suggestion. I am satisfied that SC Pitkethly’s earlier comments,
especially those in his police interview, were a better reflection of his real
views than his later evidence, although not necessarily a reflection of
anything that he was thinking when he came upon Jonathan in Doyle Terrace.
437.
From the detailed evidence I have canvassed and the findings I have made
can be distilled several more general findings about the circumstances of
Jonathan’s shooting.
438.
First, none of the people who were specifically aware of Jonathan’s
condition seem to have recognised the dangers inherent in leaving unsupervised
a tall, strong young man in the grip of a psychotic disturbance.
439.
Secondly, ACTMH’s focus on Jonathan’s access to weapons was a dangerous
distraction, and would seem to be generally beside the point. While it would
be important to know if a mentally disturbed person does have access to
particular weapons such as a gun or a sword, the fact that such a person is not
known to have such weapons does not mean that he or she does not pose a threat;
just about anyone can get access to a carving knife, a star pole, a large piece
of wood, a brick or a bottle.
440.
Thirdly, despite their lack of mental health training, a significant
number of civilians managed, generally by adopting a firm but conciliatory
manner, to deal safely with Jonathan, even as he became more agitated and made
more threats and more demands; those specifically mentioned in this judgment
include Mr Oakley, Mr Richter, Mr Atkinson, the 82-year-old Mrs Healy and
the 15-year old boy who thought Jonathan was “a bit weird”. Some of them explicitly
tried to avoid aggravating the situation: for instance, Bill Atkinson drove
past Jonathan on the wrong side of the road to minimise his impact on Jonathan’s
space, and Allan Richter repented when he realised he had backed himself into a
corner.
441.
Fourthly, Jonathan’s encounter with Senior Constables Pitkethly and
Willis was more dramatic and more dangerous than any of his previous
encounters. This no doubt reflected to some extent his “significant dislike”
of police, but I am satisfied that it reflected to a much greater degree the
confrontational and threatening behaviour of the two police officers from the
moment when their car stopped. After he was shot, Jonathan was surrounded by
police giving first aid, and was also accompanied by a police officer in the
ambulance. There is no evidence that he was other than polite, albeit still
delusional. A cynical response might be that a person who has just been
rendered a quadriplegic has no rational choice but to be polite to those who
are caring for him, but it is clear that Jonathan was not at that stage any
more rational than he had been for some time.
442.
Fifthly, there is a striking contrast between the police view that the
confrontation was all Jonathan’s fault and the approach taken to Jonathan by
the various civilians who encountered him before police located him.
443.
The expert witnesses called by the police implied that Jonathan’s
extreme reaction to them was unpredictable and apparently unrelated to the
police officers’ actions. They seemed to be suggesting, as did SC Willis, that
Jonathan was to blame for the confrontation because he had behaved in a way
that the police officers had not predicted.
444.
The comments made by the police officers and the expert witnesses
are dealt with at [699]-[748] below, but at this stage I note that the propositions that the police ran into trouble
because Jonathan’s reaction to them was unpredictable, and that the
confrontation was Jonathan’s fault because of how he reacted to the police, must be assessed, among other things, in the light of
the apparent capacity of various untrained members of the public to understand
both the risk of provoking an armed and mentally disturbed person, and some general
techniques for avoiding such provocation.
(a)
Did the defendant concerned owe a duty of care to the plaintiff?
(b)
If so, was the duty of care breached?
(c)
If so, did the breach of the duty of care cause the damage suffered by
the plaintiff?
451.
To explain that conclusion it is necessary to review a number of English
and Australian cases, and to articulate why I consider that this case does not
involve what, for convenience rather than precision, can be referred to as
investigations immunity, but instead falls into a separate class of cases in
which neither the relevant authorities, nor considerations of public policy or
of coherence, require any particular immunity or exemption from duty to be
accorded to police officers performing their duties.
whether the individual members of a police force, in the
course of carrying out their functions of controlling and keeping down the
incidence of crime, owe a duty of care to individual members of the public who
may suffer injury to person or property through the activities of criminals,
such as to result in liability in damages, on the ground of negligence, to
anyone who suffers such injury by reason of breach of that duty.
Potential existence of [liability in negligence] may in many
instances be in the general public interest, as tending towards the observance
of a higher standard of care in the carrying on of various different types of
activity. I do not, however, consider that this can be said of police
activities. The general sense of public duty which motivates police forces is
unlikely to be appreciably reinforced by the imposition of such liability so
far as concerns their function in the investigation and suppression of crime.
From time to time they make mistakes in the exercise of that function, but it
is not to be doubted that they apply their best endeavours to the performance
of it. In some instances the imposition of liability may lead to the exercise
of a function being carried on in a detrimentally defensive frame of mind. The
possibility of this happening in relation to the investigative operations of
the police cannot be excluded. Further it would be reasonable to expect that
if potential liability were to be imposed it would be not uncommon for actions
to be raised against police forces on the ground that they had failed to catch
some criminal as soon as they might have done, with the result that he went on
to commit further crimes. While some such actions might involve allegations of
a simple and straightforward type of failure—for example that a police officer
negligently tripped and fell while pursuing a burglar—others would be likely to
enter deeply into the general nature of a police investigation, as indeed the
present action would seek to do. The manner of conduct of such an
investigation must necessarily involve a variety of decisions to be made on
matters of policy and discretion, for example as to which particular line of
inquiry is most advantageously to be pursued and what is the most advantageous
way to deploy the available resources. Many such decisions would not be
regarded by the courts as appropriate to be called in question, yet elaborate
investigation of the facts might be necessary to ascertain whether or not this
was so. A great deal of police time, trouble and expense might be expected to
have to be put into the preparation of the defence to the action and the
attendance of witnesses at the trial. The result would be a significant
diversion of police manpower and attention from their most important function,
that of the suppression of crime. Closed investigations would require to be
reopened and retraversed, not with the object of bringing any criminal to
justice but to ascertain whether or not they had been competently conducted.
There is no question that a police officer, like anyone else,
may be liable in tort to a person who is injured as a direct result of his acts
or omissions. So he may be liable in damages for assault, unlawful arrest,
wrongful imprisonment and malicious prosecution, and also for negligence.
Instances where liability for negligence has been established are Knightley
v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire
[1985] 1 WLR 1242.
456.
That is, Hill recognised that the immunity required by the
circumstances of that case, expressed to relate to police liability to members
of the public at risk from the activities of criminals, could not extend to all
police activity. The dividing line between circumstances in which a duty of
care arises and those in which it does not has been the subject of a number of
decisions since 1989, and there have been other decisions which, while not
specifically addressing that dividing line, have involved conclusions which may
provide useful hints about how to categorise particular kinds of cases.
457.
Gibson v Orr [1999] SC 420 (Gibson) involved
negligence by police officers who, having initially placed their vehicle in
such a way as to warn approaching drivers that a bridge had collapsed, later
removed their vehicle without making any other arrangements to warn drivers. As
a result, a car fell into the river, killing two people and injuring a third.
Lord Hamilton rejected a submission that, by reference to Hill, there
was “no general duty of care owed by the police towards private individuals”.
His Lordship said at 436:
there is no close analogy, in my view, as regards the policy
issue between the exercise by the police of their function of investigating and
suppressing crime and the exercise by them of their function of performing
civil operational tasks concerned with human safety on the public roads. It was
not disputed that the police enjoy no immunity on public policy grounds in
respect of the manner in which a constable drives his police vehicle or his
motor cycle on the public roads. There would likewise be no immunity, in my
view, in respect of the manner in which a constable in charge of directing
traffic on such a road performed that function. Likewise, there is no immunity,
in my view, in respect of the manner in which other civil road safety
operational tasks are carried out by police officers where there is no inherent
problem of conflict with instructions issued by superior officers or with
duties owed to other persons.
458.
Lord Hamilton later commented on what he called “a tide in the English
courts” towards a wide interpretation of what had been said in Hill,
which he suggested “may now be running less strongly”. He went on at 437:
Moreover, the decision of the Court of Human Rights in Osman v United
Kingdom [[1998] ECHR 101], together with the position adopted by the UK
Government before that court that ‘the exclusion was not a blanket exclusion of
liability but a carefully and narrowly focused limitation which applied only in
respect of the investigation and suppression of crime, and even then not in
every case’ (para 144), may also lead to some reconsideration of the scope of
the public policy immunity accorded to the police in some of the English
decisions.
459.
The repeated invocation by counsel for the police, and many of the
witnesses called by the police, of the description of the police activity in
Chapman on 11 December 2001 as occurring in the course of an investigation or the
suppression of crime was clearly an attempt to bring that police activity
within the class of cases covered by investigations immunity arising under Hill,
but as indicated, I am satisfied that this is not a correct analysis of either
the authorities or the circumstances of this case.
460.
Six years after Hill was decided, the Victorian Supreme Court
(Appeal Division) in Zalewski v Turcarolo [1995] 2 VR 562 (Zalewski)
relied on the distinction drawn in Hill to find police liable in
negligence on the basis of facts having some remarkable similarities to those
of the current case. The following summary of the facts is taken from the head
note to the Victorian Reports version of the case (at 562):
The plaintiff had a history of psychiatric illness and
violent behaviour. His father called the police to their home when the
plaintiff, sitting on the floor of his bedroom, refused to give up a shotgun he
was holding. Two police officers approached the bedroom and asked the plaintiff
to come out. When he refused, the police officers entered the bedroom, pointed
their guns at the plaintiff and shouted to him to drop the gun. The police
officers alleged the plaintiff took aim at one of them. Both police officers
then fired at the plaintiff, injuring him. The plaintiff sued both police
officers and the State of Victoria claiming damages for negligence and battery.
461.
The Court confirmed the decision of Teague J and held at 579 that the
police had no public interest immunity to liability for negligence in those
circumstances, because the injuries arose “from specifically identified
antecedent negligence ... by a particular senior officer”. In so finding,
Hansen J, with whom Brooking and JD Phillips JJ agreed, referred to Hill and
quoted the comments quoted at [453] above. In response to the appellant’s
submission that the police had an immunity from liability in negligence on the
ground of public policy, Hansen J said (at 578-79):
Even if one is to accept there may be an immunity as found in
the English cases, the present is a different case. This is a case of an
experienced police officer who it was open to the jury to find acted
impetuously, without due enquiry and reflection, in disregard of police
instructions, in the face of a risk of provoking a situation involving a person
with a psychiatric or psychological condition and who did provoke by his
actions a situation which it was open to the jury to find was a probable
consequence of his actions. To borrow the words of May J in Hughes at 288, this
may be described as a case of injuries which arise “from specifically
identified antecedent negligence ... by a particular senior officer”. I am not
prepared to hold that in such circumstances a police officer and his employer
are immune from liability in negligence. In my opinion the case was properly
determined in accordance with the law of negligence. Indeed, on the facts of
this case the basis of the immunity contended for before this court did not
exist, because Zalewski did not act in accordance with his training and
instructions. The verdict is consistent with the jury having so found.
462.
Brooking J at 563-5 also canvassed the exceptions to police immunity in
negligence, mentioning negligence in “on the spot” operational activities, in
particular breaches of duty arising from negligent driving in the course of
official duties and negligent use of a firearm, and the duty on a police
officer to take reasonable care for the personal safety of a person arrested
and detained by a police officer, citing as authority Howard v Jarvis
(1958) 98 CLR 177 in which the High Court said at 183 that the police officer
concerned “was subject at common law to a duty to exercise reasonable care for
the safety of [the deceased] during his detention in custody”.
463.
As at 1995 when Zalewski was decided, the Australian position
seems to have been that:
(a)
having regard to the difficulty of limiting the class to whom any
relevant duty could be owed, and in the public interest, police may have been
immune from suit, or may have owed no duty of care, in respect of the negligent
conduct of investigations, to individual members of the public at risk of
injury through the activities of criminals; but
(b)
a police officer could be liable in negligence to a person who is
injured as a direct result of his acts or omissions, in particular where the
injuries arose “from specifically identified antecedent negligence ... by a
particular senior officer”.
464.
The legal position applicable in the current case is less clear, for two
reasons.
465.
First, because of the way the two categories of cases have been
described in subsequent cases, it is possible to imagine an overlap between the
cases involving investigations immunity and those cases in which a duty of care
may be owed in respect of particular police activities (conveniently described
as involving specific antecedent negligence but which may in fact cover a wider
range of police activities). In the current case it is argued on behalf of the
police that, in effect, investigations immunity applies to anything that could
be said to have happened in the course of an investigation, even if the facts
of the particular case would have justified treating it as involving specific
antecedent negligence.
466.
Secondly, developments in Australian law since 1995 directly raise the
question whether Zalewski remains good law. It is convenient to deal
with this second issue first, because if Zalewski and similar cases are
in any event no longer authoritative, determining the scope of investigations
immunity would raise different questions.
467.
Since 1995 Zalewski has been cited from time to time, but has not
apparently been applied in a similar case until 2010 (State of Victoria v
Richards [2010] VSCA 113 (Richards), discussed at [521]-[527]
below).
468.
Between 1995 and 2006, however, three significant cases raising issues
to do with investigative powers were decided. It is necessary to refer to them
briefly, although none of them referred to Zalewski.
the House of Lords held that police officers did not owe a
duty to individual members of the public who might suffer injury through their
careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel
pointed out that the conduct of a police investigation involves a variety of
decisions on matters of policy and discretion, including decisions as to
priorities in the deployment of resources. To subject those decisions to a
common law duty of care, and to the kind of judicial scrutiny involved in an
action in tort, was inappropriate. (citations omitted)
471.
At [62], the Court made the following comments about the significance of
the statutory scheme under which the doctors worked:
The statutory scheme that formed the background to the
activities of the present respondents was, relevantly, a scheme for the
protection of children. It required the respondents to treat the interests of
the children as paramount. Their professional or statutory responsibilities
involved investigating and reporting upon, allegations that the children had
suffered, and were under threat of, serious harm. It would be inconsistent
with the proper and effective discharge of those responsibilities that they
should be subjected to a legal duty, breach of which would sound in damages, to
take care to protect persons who were suspected of being the sources of that
harm. The duty for which the appellants contend cannot be reconciled
satisfactorily, either with the nature of the functions being exercised by the
respondents, or with their statutory obligation to treat the interests of the
children as paramount. As to the former, the functions of examination, and
reporting, require for their effective discharge, an investigation into the
facts without apprehension as to possible adverse consequences for people in
the position of the appellants or legal liability to such persons. As to the
latter, the interests of the children, and those suspected of causing their
harm, are diverse, and irreconcilable.
The circumstance that a defendant owes a duty of care to a
third party, or is subject to statutory obligations which constrain the manner
in which powers or discretions may be exercised, does not of itself rule out
the possibility that a duty of care is owed to a plaintiff. People may be
subject to a number of duties, at least provided they are not irreconcilable.
... But if a suggested duty of care would give rise to inconsistent
obligations, that would ordinarily be a reason for denying that the duty
exists. Similarly, when public authorities, or their officers, are charged
with the responsibility of conducting investigations, or exercising powers, in
the public interest, or in the interests of a specified class of persons, the
law would not ordinarily subject them to a duty to have regard to the interests
of another class of persons where that would impose upon them conflicting
claims or obligations.
473.
Tame v New South Wales (2002) 211 CLR 317 (Tame)
concerned a claim for damages for psychiatric injuries sustained by a woman who
had been involved in a motor vehicle accident. She suffered those injuries as
a result of learning, nearly 18 months later, that a police report of the
accident had mistakenly shown that she had had a high blood alcohol level.
474.
The case was heard together with another case involving claims of
nervous shock, anxiety and depression, but not involving any relevant actions
on the part of police.
475.
The High Court held that the police officer who had negligently recorded
an incorrect blood alcohol level for the plaintiff did not owe her any duty to
take reasonable care to avoid causing her psychiatric injury. The case largely
turned on issues specific to psychiatric injury, but most members of the court
also noted in reliance on Sullivan v Moody that, as summarised in the
headnote, “the duties of an investigating police officer are potentially
inconsistent with the existence of a duty to take reasonable care to avoid
psychiatric injury to a person whose conduct is under investigation” (Gleeson
CJ at [26]; Gaudron J at [57]; McHugh J at [123]-[125]; Hayne J at [298]).
Gummow and Kirby JJ at [231] said:
It is unlikely that an investigating police officer owes a
duty of care to a person whose conduct is under investigation. Such a duty
would appear to be inconsistent with the police officer’s duty, ultimately
based in the statutory framework and anterior common law by which the relevant
police service is established and maintained, fully to investigate the conduct
in question. (citations omitted)
476.
Counsel for the police relied on this statement. While the first
sentence may appear to be helpful to the police case, the second sentence
clarifies that the statement relates to the proper investigation of the conduct
in question, and cannot reasonably be read as ruling out all duties of care
arising in any circumstances between two people who happen to be in the
relationship of investigating police officer and person being investigated.
477.
Nor did any of the members of the Court suggested that such an approach
in fact amounted to a blanket immunity for police officers in relation to all
official activities.
478.
In Cran v State of New South Wales [2004] NSWCA 92 (Cran),
a suspected offender was remanded in custody on a charge of supply of a
prohibited drug. Forensic analysis of items seized from the suspect resulted
in the dropping of the charge, but completion of the analysis was delayed some
weeks by administrative failures on the part of the police and the prosecutor
(such as failing to complete a form indicating when the analysis results were
required). The suspect spent several more weeks in custody than he should
have, and the NSW Court of Appeal accepted that he had as a result of his
extended period in custody suffered post-traumatic stress disorder.
479.
The Court of Appeal (Santow JA, with whom Ipp and McColl JJA agreed),
relied on Tame to exclude the existence of a duty of care owed by
investigating police officers to persons whose conduct is under investigation
(at [35]-[39]). Santow JA then (at [46]-[51]) dealt with a submission to the
effect that the justification for the investigations immunity did not require
that immunity to include “the most mechanical of investigative tasks” such as
filling in a form. He concluded that such tasks are also covered by the policy
considerations applying generally to investigative activities, because
rendering them subject to civil liability would affect “police priorities in
the allocation of resources”.
(a)
at [46], in relation to the confidentiality of information provided by a
police informant (Swinney v Chief Constable of Northumbria Police Force
[1997] QB 464);
(b)
at [52], where police or prosecutorial authorities have expressly or
impliedly assumed responsibility to the person injured and that person was
entirely dependent on the express or implied undertaking (Welsh v Chief
Constable of the Merseyside Police [1993] 1 All ER 692, which involved an
express undertaking by a prosecutor to pass on information to a court).
481.
In State of NSW v Riley [2003] NSWCA 208 (Riley),
the NSW Court of Appeal upheld an award of damages in respect of injury caused
to a person who was handcuffed on arrest and transported 65 km in the back of a
police vehicle; the handcuffs had been applied too tightly and during the trip
he suffered injury to his wrists as a result. There was no suggestion that
police did not owe a duty of care, or were in some way immune from liability,
in such a context.
482.
In the 2006 case of New South Wales v Klein [2006] NSWCA 295 (Klein),
the NSW Court of Appeal in the context of a strike-out application expressed
doubts about Zalewski; Young CJ in Equity, with whom Beazley and Santow
JJA agreed, noted at [25] a submission that “in the light of Cran and in
the light of the High Court’s decisions in Tame v New South Wales, and Sullivan’s
case, Zalewski’s case could not be considered to be of any current
authority”, and said:
In my view there is a lot of strength in this submission. One
would not say that Zalewski was wrongly decided on its facts, but it
would seem to me that in the light of subsequent decisions of high authority
both in this country and in England, it is of very limited precedent value in
this 21st century.
483.
His Honour’s reasoning has been effectively ignored in a subsequent NSW
decision (State of NSW v Tyszyk [2008] NSWCA 107 (Tyszyk))
and rejected in a Victorian decision (Richards), but it requires careful
scrutiny because of the importance of Zalewski to the instant case and
the need for me to choose between apparently inconsistent authorities from
Courts of Appeal in different Australian jurisdictions.
484.
The facts of Klein were that Mr Klein, who to the knowledge of
local police had previously exhibited signs of mental illness, was at his
grandmother’s home in a disturbed state of mind and with a number of knives in
his possession. He was behaving aggressively towards his mother who was in the
house with him. The mother called the police, who were told that Mr Klein was
armed with a knife, under the influence of drugs, and acting irrationally. At
some point thereafter Mr Klein set a fire in the house, which could not be
extinguished because Fire Brigade officers could not enter the house to extinguish
the fire while Mr Klein was in the house with knives. Later again Mr Klein was
fatally shot by two police officers.
485.
A number of Mr Klein’s relatives, only one of whom had been in the
vicinity of the shooting, claimed damages from the police in respect of a
breach of an alleged duty to avoid causing them psychiatric harm. The NSW
Court of Appeal allowed an appeal from the trial judge’s refusal to strike out
and dismiss the plaintiffs’ claims.
486.
Zalewski had been mentioned by the NSW Court of Appeal in the
then recent case of Thompson v Vincent [2005] NSWCA 219 as an example of
the “exceptional situations” in which police may by their actions assume a duty
of care in a particular task, and it was put to the Court of Appeal in Klein
that Mason P’s mention of Zalewski in that context had been
determinative in the trial judge’s decision to permit the negligence claims in Klein
to go to trial.
487.
There is a clear implication in Klein that the Court of Appeal
considered that the trial judge had been led astray by Zalewski and by
the statement by Hansen J in that case that police immunity “would depend upon
a careful examination of the facts in a particular case”. Without expressing
any views about that interpretation of the trial judge’s approach to Zalewski,
it seems to me, with respect, that the Court of Appeal in Klein
misconceived the relationship between Zalewski and the line of authority
that for practical purposes began with Hill. In relation to Hansen J’s
comment that police immunity “would depend upon a careful examination of the
facts in a particular case”, Young CJ in Eq said at [23]:
That may be right in situations where there is a case coming
within the exceptional cases or assumption of responsibility cases, but
otherwise the core principle in Hill’s case is so strong that the
hopelessness of the plaintiffs’ case is plain no matter what the facts.
488.
I shall return to the matter of “exceptional cases”, but at this stage I
note that it is hard to make sense of Young CJ in Eq’s reference to “the core
principle in Hill’s case” being “so strong that the hopelessness of the
plaintiffs’ case is plain no matter what the facts”; this is partly because his
Honour did not articulate his understanding of what “the core principle” in Hill
really was.
489.
Up to and including Cran, it appeared to be accepted that the
core principle in Hill related to the existence of an immunity, or in
current terminology the absence of a duty of care, for actions taken by police
officers in the course of investigations. For instance, Santow JA at [39] in Cran
quoted Callinan J’s summary of Hill as follows:
[T]he House of Lords held that police officers did not owe a
duty to individual members of the public who might suffer injury through their
careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel
pointed out that the conduct of a police investigation involves a variety of
decisions on matters of policy and discretion, including decisions as to
priorities in the deployment of resources. To subject those decisions to a
common law duty of care, and to the kind of judicial scrutiny involved in an
action in tort, was inappropriate. (citations omitted)
490.
Santow JA in Cran canvassed two relevant categories of exceptions
to that principle (see [480] above), but both of them, including the category
said to involve an assumption of responsibility by an investigating officer or
prosecutor, were clearly exceptions relating to particular aspects of
investigative activities. In Thompson v Vincent, Mason P referred to a
different set of “exceptional situations” when he said:
This is not to say that police may never act in such a way as
to assume a duty of care in a particular task (cf Knightley v Johns, Rigby v
Chief Constable of Northamptonshire, Zalewski v Turcarolo, Graham Barclay
Oysters Pty Ltd v Ryan). But the present case bears no relationship to
those exceptional situations. Rather, it falls well within the area in which
it has been held that the public law duties of police are not consonant with
recognition of a private law duty of care in favour of a particular member of
the public. (citations omitted)
491.
Knightley, Rigby and Zalewski are a different kind
of cases from those noted in Cran; they are cases that have always sat
outside the Hill line of authority involving investigative activities.
It is clear from the comments in Hill quoted at [452] and [454] above
that the Knightley and Rigby line of cases was not, and was not
seen by the Law Lords as, an exception to the proposition they expressed about
the duty of police to members of the public who were at risk from the
activities of criminals. It was simply a line of authority dealing with a
different set of issues. It may be that Mason P’s reference to these
cases as ones where police have assumed a duty of care led to some confusion
given that the relevant exceptions to investigations immunity cited by Santow
JA do also rely on the deliberate acceptance of responsibility by the police or
prosecution service concerned.
492.
Without a basis for finding that Hill has somehow become
authority for the proposition that police in general do not owe a duty of care
in respect of any of their activities, it does not seem to be appropriate to
treat Knightley, Rigby and Zalewski as an exception,
properly so called, to the Hill principle.
493.
In support of his view that the core principle in Hill rendered
the plaintiffs’ case plainly hopeless, Young CJ in Eq at [29]-[31] cited Brooks
v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 (Brooks),
relating to a claim by a victim of crime that he had been treated not as a
victim but only as a witness. In that case, Lord Steyn discussed the current
status of Hill. His Lordship quoted at [19] the comments set out at [454]
above referring to Knightley and Rigby, and noted at [27]
that some of the policy grounds for the decision in Hill no longer apply
and that the principle in Hill should be “reformulated in terms of the
absence of a duty of care rather than a blanket immunity”. However, his
Lordship said at [30], “the core principle of Hill’s case has remained
unchallenged in our domestic jurisprudence and in European jurisprudence for
many years”. Like Young CJ in Eq, Lord Steyn did not identify that core
principle, but his Lordship said at [30]-[31]:
The prime function of the police is the preservation of the
Queen’s peace. The police must concentrate on preventing the commission of
crime; protecting life and property; and apprehending criminals and preserving
evidence: ... A retreat from the principle in Hill’s case would have
detrimental effects for law enforcement. Whilst focusing on investigating
crime, and the arrest of suspects, police officers would in practice be
required to ensure that in every contact with a potential witness or a
potential victim time and resources were deployed to avoid the risk of causing
harm or offence. Such legal duties would tend to inhibit a robust approach in
assessing a person as a possible suspect, witness or victim. By placing
general duties of care on the police to victims and witnesses the police’s
ability to perform their public functions in the interests of the community,
fearlessly and with despatch, would be impeded. It would, as was recognised in
Hill’s case, be bound to lead to an unduly defensive approach in combating
crime.
It is true, of course, that the application of the principle
in Hill’s case will sometimes leave citizens, who are entitled to feel
aggrieved by negligent conduct of the police, without a private law remedy for
psychiatric harm. (citations omitted)
494.
In Brooks the question for consideration (at [12]) related to
three duties of care said to be owed to the plaintiff by the police, being
duties to:
(1) take reasonable steps to assess whether [Mr
Brooks] was a victim of crime and then to accord him reasonably appropriate
protection, support, assistance and treatment if he was so assessed (‘the first
duty’);
(2) take reasonable steps to afford [Mr Brooks] the
protection, assistance and support commonly afforded to a key eye-witness to a
serious crime of violence (‘the second duty’);
(3) afford reasonable weight to the account that [Mr
Brooks] gave and to act upon it accordingly (‘the third duty’);
495.
At [33] Lord Steyn said that the three duties “are undoubtedly
inextricably bound up with the police function of investigating crime which is
covered by the principle in Hill’s case”. His Lordship found that it
was impossible to separate the alleged duties from the police function of
investigating crime and said that “[if] the core principle in Hill’s
case stands, as it must, these pleaded duties of care cannot survive”.
496.
Lord Bingham of Cornhill at [4], Lord Nicholls of Birkenhead at [5] and
Lord Rodger of Earlsferry at [38], all of whom agreed with Lord Steyn’s
conclusion, expressly referred to the importance of the freedom of action of
police officers in investigating crimes.
497.
Lord Steyn’s proposition does not, however, have any implications for
the kinds of duties that have been found to be owed where physical damage has
been caused by specific acts of negligence such as in Knightley, Rigby
and Gibson. There is nothing in Brooks that could be read as
intended to extend the effect of Hill so as to exclude the imposition of
duties of care on police officers in cases such as Knightley, Rigby and Gibson
in particular, or generally in relation to activities that are not inherently
part of the investigation of crime and the apprehension of offenders. If
anything, there are hints in Brooks that some of the Law Lords
considered Hill possibly in need of narrowing; Lord Bingham at [3] said
that he “would ... be reluctant to endorse the full breadth of what [Hill]
has been thought to lay down, while readily accepting the correctness of that
decision on its own facts”, and Lord Nicholls at [6] said that “Like Lord
Bingham and Lord Steyn, ... I am not to be taken as endorsing the full width of
all the observations in [Hill]”.
498.
That is, it is not accurate to attribute to Lord Steyn the statement
that Hill is “authority for the general proposition that police officers
owe no duty of care to private individuals” (Klein at [30]).
499.
Young CJ in Eq also noted at [37] counsel’s submission that “whilst Hill’s
case was distinguished in Zalewski that was prior to Hill’s case
gaining widespread acceptance including acceptance by McHugh J in [D’Orta-Ekenaike
v Victoria Legal Aid (2005) 223 CLR 1 at [101]]”. It may be true that Hill
has been more widely cited in recent times than it had been in 1995, but this
is not the same as being cited as authority for a wider proposition; in fact
McHugh J approved Hill as authority for the following relatively narrow
propositions:
Thus, police officers owe no duty to a member of the public
to take reasonable care in investigating a crime so as to be able to apprehend
a criminal before he commits a further crime by injuring that member of the
public. It is not sufficient to found a duty of care that the police officer
ought to know that, if his or her careless investigation fails to apprehend the
criminal, a member of a particular class of persons may suffer physical harm. (citations
omitted)
500.
Those propositions do not extend investigations immunity any further
than had already been accepted in cases such as Sullivan v Moody (at [469]
to [472] above).
501.
Finally, Young CJ in Eq noted at [39] the mention in Cran of “a
recognised exception where a duty of care is allowed”, being a case in which “the
police or prosecutorial authorities expressly or impliedly assume
responsibility, to the person injured, who was entirely dependent on an
undertaking so expressed or implied”, and then mentioned the example of a
person who suffers injury as a result of relying on a police assurance that a
siege was under control and it was safe for the person to emerge from hiding.
In implying that the siege situation was an example of the assumption of
responsibility exception mentioned in Cran, Young CJ in Eq effected a
considerable extension to the exception as identified by Santow JA who had, in Cran,
cited as examples the cases noted at [480] above, both of which related to the
defendant’s failure, having undertaken to do so, to deal with information in
accordance with the undertaking.
502.
To the extent that Young CJ in Eq, in Klein, sought to fit a
siege situation into the information-based exceptions to the Hill
principle mentioned by Santow JA, it seems to me that his Honour failed to
address the long-standing distinction initially identified by the House of
Lords in Hill between:
(a)
on the one hand, investigations whose conduct might be prejudiced by a
duty of care, for instance because it might constrain resource allocation or
lead to investigations being conducted in a “detrimentally defensive frame of
mind”; and
(b)
on the other hand, cases in which police take control or assume
responsibility for managing a situation and thereby assume a duty of care to
individuals who are generally identified or identifiable and who may be put at
risk through negligent police management of the situation.
503.
Young CJ in Eq then noted that the pleadings did not allege that the
police had assumed responsibility to any of the plaintiffs, and said that the
cases he had referred to “show that it is very difficult indeed for a plaintiff
to say that merely because the police were in charge of an operation they
thereby impliedly assumed responsibility to any individual who was in the
vicinity”.
504.
It is not clear which of the unspecified cases he had referred to could
be said to have shown that it is very difficult to say that merely because the
police were in charge of an operation they thereby assumed implied
responsibility to any individual who was in the vicinity. On the contrary,
most of the cases referred to did not relate to police being in charge of an “operation”,
but to police “conducting a police investigation”. The few cases mentioned
that related to police taking control of a particular incident or situation (Knightley,
Rigby and Zalewski), do not appear to show any particular
difficulty in holding police liable where they have taken charge of an
operation and negligently caused physical injury or damage.
505.
Only two years after Klein, the NSW Court of Appeal in Tyszyk
(Mason P, Giles and Campbell JJA) again considered the circumstances in which a
duty of care can be cast on police officers in connection with the performance
of their duties. The case concerned an injury suffered by a member of the
public when he was hit by a falling downpipe that had been dangling from a
building, apparently as a result of wind or rain damage. The claim alleged a
negligent failure by police officers who were aware of the dangling downpipe to
take reasonable precautions to protect the plaintiff from danger. The police,
although aware of the downpipe, had chosen to deal first with a tree that had
just fallen down and was partly blocking a street.
506.
All members of the Court found against the plaintiff, Mason P and
Giles JA on the basis that if there had been a duty of care owed by the police
officers, no breach of that duty had been established, and Campbell JA because
no duty of care was owed.
507.
However, in the course of considering whether a duty of care was owed,
Campbell JA reviewed the cases on the liability of police officers in
negligence, starting with Hill. He noted at [118] the public policy
reasons that had been advanced in Hill for refusing to infer any
intention of the common law to create a duty towards individual members of the
public, and at [119] also mentioned a number of the Australian cases in which Hill
had been referred to with approval, including Sullivan v Moody and Klein.
Despite the reference to Klein, Campbell JA immediately thereafter at
[120]‑[121] concluded that:
public policy factors of the type identified in Hill
are not sufficient to lead to a conclusion that there is no duty of care in the
present case.
...
Hill is not authority that there was immunity
from liability in negligence for police officers in all circumstances.
508.
His Honour then quoted the comment by Lord Keith that is set out at [453]
above.
509.
That is, having cited Klein as a case in which Hill was
approved, Campbell JA immediately noted that Hill appears to stand for a
proposition significantly narrower than the one adopted in Klein.
510.
Campbell JA went on to say at [125] that:
Partly on the basis of Hill, a wider principle
than Hill itself articulated has been accepted by the House of
Lords and in the High Court of Australia. It is that a “common law duty of
care cannot be imposed on a statutory duty if the observance of such common law
duty of care would be inconsistent with, or have a tendency to discourage, the
due performance by the local authority of its statutory duties”.
They obviously decided, in exercise of their discretion as
police officers, to give some of their time and attention to the fallen tree.
...
However I do not see how recognition of the duty of care to
the respondent would be incompatible with any other relevant duty that the
constables owe. Their public duty concerning the tree was to take such steps
to deal with it as they thought appropriate. Recognition of a duty of care in
relation to the downpipe would still leave them free to perform that duty
concerning the tree, though it might affect the choice they made about which
course of action was appropriate. There is nothing in the present case like
the situation being considered in Sullivan v Moody, where there
was a duty to investigate allegations of sexual abuse against children, in a
statutory context that required the interests of the child to be paramount. In
that situation, performance of the duty could be inhibited if the duty of care
owed by the investigators to those being investigated were recognised.
512.
Having rejected the proposition that police were subject to conflicting
duties because there were two dangerous circumstances needing attention,
Campbell JA nevertheless concluded that there was no duty of care, basing his
decision on:
(a)
the fact that the police had not taken charge of the situation (in
contrast to the case of Ansett Transport Industries (Operations) Pty Ltd v
State of NSW (1998) 28 MVR 145 (Ansett), in which police had
established a road block at an accident scene which they then negligently
removed before the scene had been cleared), had no special access to
information, and had not assumed any responsibility to the particular
individual who was injured (at [147]-[150]); and
(b)
the fact that the plaintiff was not vulnerable in the sense of being
unable to protect himself from the consequences of the conduct alleged to be
negligent, saying that “all [the plaintiff] needed [to] do was to look up to
become aware of the potential danger” (at [151]-[152]).
513.
However, in concluding that no duty of care existed in the case before
him, Campbell JA noted at [141] the recognition in Thompson v Vincent
that in some cases police may act so as to assume a duty of care in a
particular task; he mentioned as authorities both the English cases of Knightley
and Rigby as well as Zalewski and Graham Barclay Oysters Pty
Ltd v Ryan (2002) 211 CLR 540 (Graham Barclay Oysters), but
distinguished the three police cases in that each of them involved a specific
positive act by the police officer concerned which resulted in the injury
suffered by the plaintiff.
514.
Special leave to appeal to the High Court from the decision of the Court
of Appeal in Tyszyk was refused (Transcript of Proceedings, Tyszyk v
State of NSW [2009] HCATrans 84 (1 May 2009)), although the applicant noted
that the decision could raise “the question of whether and in what
circumstances the police owe a duty and whether they are immune from suit if it
is not investigation or prosecution”, a question described by French CJ as “a
gleaming special leave question” but one which the Court considered was
unlikely to emerge in the particular case if special leave were granted.
515.
Klein and Tyszyk were both cited in Cumming v State of NSW
(2008) NSWSC 690 (Cumming), in which the family of a deceased man
whose disappearance had been reported to police alleged police negligence. The
body was found by police shortly after the man was reported missing, but he was
not identified, and the family was not told that he had been found, until after
they had spent the next four years searching for him.
516.
The family’s claim was struck out as hopeless. It alleged negligence in
the performance of the police investigations into the deceased’s
disappearance. It did not plead a specific assumption of responsibility by the
police. Harrison AJ’s summary dismissal of the statement of claim in reliance
on Hill as discussed in Klein and Tyszyk does not seem to
me to have any implications for police negligence cases that fall outside the
investigations immunity line of authority.
517.
A police breach of a duty of care was also alleged in Rickard v State
of NSW [2010] NSWCA 151 (Rickard), which involved the
following facts (at [1] and [2]):
The plaintiff had dealings with a police officer in
connection with a complaint of domestic violence by her boyfriend. In the
course of those dealings she offered to sell him a car for $100. He agreed and
purchased the car for that sum.
The plaintiff now claims that she was in a vulnerable state
and that the transaction was improvident because the car ... was worth more
than $100. She contends that the officer should have counselled her to seek
independent advice.
518.
In that case an assumption of responsibility by the police officer was
pleaded, but was rejected by reference to the impact of finding a duty on
police to provide advice in conjunction with investigations (at [76]-[80]).
Hulme J also noted that the plaintiff’s complaint was more properly dealt with
under the law of contract, or possibly by way of action for misfeasance in
public office (at [81]-[82]), and rejected the claim that the plaintiff was
vulnerable in any relevant sense (at [84]-[90]). Again, the citation of Klein
in Rickard does not seem to have any implications for the relevance of Klein
in the current case.
519.
In State of NSW v Spearpoint [2009] NSWCA 233 (Spearpoint),
the NSW Court of Appeal refused to dismiss a claim against the police based on
a failure to arrest a person for breaches of an Apprehended Violence Order.
The claim was made by the beneficiaries of the order, who had reported breaches
to the police and had been assured by police that a warrant had been issued and
the person would be arrested and detained. In fact he was not detained, and
did further damage.
520.
Beazley JA, who had agreed with Young CJ in Eq in Klein, said in Spearpoint
at [31]:
There is no case in Australia which says that a police
officer is immune from suit in the sense that a police officer never can owe a
duty of care. Although ... the cases may be rare where a duty of care is
found, it was not established on this case that there could be no duty of care
owed.
522.
The plaintiff pleaded that the defendant police officers owed her a duty
of care to take reasonable steps to avoid causing her injury while carrying out
their duties, and that they had breached this duty either by their use of OC
spray or by their failure to render assistance or advice after she had been
sprayed.
523.
The defendants sought to have the statement of claim struck out as
wholly untenable. They argued that “the duty to take reasonable care to avoid
causing the plaintiff injury is inconsistent with the general duty of the
police to enforce the criminal law, and in particular, to apprehend the suspect
offender” (at [10]). They relied on Sullivan v Moody and Tame in
support of this claim, while noting in particular that no duty should be found
because “it would be difficult to formulate the scope and content of the duty”
(at [10]).
524.
The Court (Redlich JA, with whom Nettle JA and Hansen AJA agreed) noted
at [11]-[13] that “coherence” had played a significant part in the Sullivan
v Moody and Tame decisions, in that finding a duty of care on the
part of police officers in the circumstances of those cases would to some
extent have cut across defamation law.
Contrary to the appellants’ contention, the common law is not
insensitive to the circumstances of innocent members of the public who may be
affected by the actions of law enforcement officers. The duty in the law of
negligence is intended to reflect values held within the community. Hence
Gleeson CJ in Tame referred to reasonableness as the essential concept in the
process of defining the ambit of a person’s proper concern for others. Those
who seek immunity from negligence liability for direct physical injury have to
overcome a heavy burden of justification for such dispensation.
While latitude must be given to police in the judgments and
decisions that must be made in their discharge of their common law and
statutory duties to enforce the criminal law, the law does not call for a stark
choice between an unfettered discharge of law enforcement responsibilities and
the protection of members of the public from unnecessary harm. Police do not
enjoy blanket immunity from suits in negligence. It has been well recognised
that an officer may owe a duty of care to prevent injury to the subject of a
police operation or to a third person. (citations omitted)
526.
Redlich JA then referred at [20] to Knightley, Rigby and
the South Australian case of Schilling v Lenton (1988) 47 SASR 88, in
which a police officer who ran into the back of a car he was pursuing was found
to have owed a duty of care to the driver being pursued. His Honour rejected
the appellant’s attempt to characterise those cases as “exceptional”, and said (at
[21] that:
the need to demonstrate that the case is exceptional appears
to arise only when the proposed duty of care would otherwise be found to be
inconsistent with the general duties of the police to enforce the law. [Klein,
Young CJ in Equity at [23]] There is considerable force in counsel for the
plaintiff’s submission that it is the appellants, not the plaintiff, who are
seeking some extension of principle and authority in contending that no duty
can conceivably arise in such circumstances.
(a) at [27] rejected the
appellant’s contention at [26] that “no duty of care exists towards third
parties by police performing operational duties save in all but the most
exceptional cases”;
(b) also at [27] noted
that Sullivan v Moody does not exclude the possibility of people being
subject to multiple duties, “provided they are not ‘irreconcilable’” and that “the
duty of care in contemplation in Zalewski was not such a duty”;
(c)
at [29] dismissed the view of Young CJ in Eq in Klein that Zalewski
should be overruled; and
(d)
at [25] implicitly accepted that police may owe a duty of care in
circumstances in which “the statement of claim similarly alleges injuries
resulting from specifically identified antecedent, and subsequent, negligence
by the police”, and noted that “on the facts as pleaded the police acted
unreasonably and may not have acted in accordance with their operational
training in the circumstances”.
528.
Finally, it is appropriate to
refer briefly to two recent English decisions. The first is the case of Ashley
v Chief Constable of Sussex Police [2008] UKHL 25 (Ashley), a
case in which police officers conducted an authorised raid of a suspect’s home
in connection with an investigation into drug trafficking and a stabbing. The
raid was conducted in the early hours of the morning, and Mr Ashley was found
in his bedroom naked and unarmed. Within seconds he had been shot dead by one
of the police officers, who had entered the bedroom with his
handgun in the “aim” position and his finger on the trigger.
530.
The defence admitted a duty of
care owed to the occupants of the deceased’s home, admitted negligence in
relation to a number of aspects of the pre-raid planning and briefing and also
admitted that the deceased was killed “as a result of the said negligence”.
531.
The matter went to the House of
Lords because, having admitted negligence, and having accepted full
responsibility for any damages which could be proved to have flowed from the
incident and its subsequent events, the Chief Constable sought to have the
tortious claim in assault and battery stayed. The House of Lords by majority
dismissed the Chief Constable’s appeal. None of the Law Lords questioned the
admissions made by the Chief Constable in relation to duty of care and
negligence, although something of the sort may have been implicit in the
comment by Lord Scott of Foscote at [23] about the lengths to which the Chief
Constable was prepared to go to avoid the assault and battery claim going to
trial.
532.
In Chief Constable of The Hertfordshire Police v Van Colle; Smith v Chief
Constable of Sussex Police [2008] UKHL 50 (Van Colle/Smith),
the House of Lords considered two cases raising the question of whether there was any redress for a victim or his or
her relatives if “police are alerted to a threat that D may kill or inflict
violence” on the victim, they take no action to prevent that and “D” does kill
or inflict violence on the victim.
533.
The “core principle” of Hill was articulated by Lord Phillips of
Worth Matravers at [97] as:
that in the absence of special circumstances the police owe
no common law duty of care to protect individuals against harm caused by
criminals.
534.
The House of Lords by a majority held that under that core principle, no
duty of care could arise in such a situation. However their Lordships
confirmed the authority of cases in which “operational decisions taken by the
police can give rise to civil liability without compromising the public
interest in the investigation and suppression of crime” (Lord Hope of Craighead
at [79]).
(a)
might induce a “detrimentally defensive frame of mind” in the
performance of police investigative functions (at [49]);
(b)
might raise issues “touching deeply on the conduct of a police
investigation” (assumed to be detrimental to such investigations) (at [50]);
and
(c)
would put police forces to trouble and expense in the preparation of
defences and participation in trials, thus absorbing resources that would be
better devoted to the suppression of crime (at [51]).
536.
I express no views on whether the conclusions reached by Young CJ in Eq
produced the correct outcome in Klein, but I am satisfied for the
reasons set out above that I am not obliged to adopt the views of the Court of
Appeal in Klein as to the ongoing authority of Zalewski (Farah
Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]).
537.
Counsel for the plaintiff submitted that the authority of Klein
is also undermined by the failure of Young CJ in Eq to distinguish between the
claims by the deceased’s relatives for psychiatric injury and the claim in
respect of his death made under the Compensation to Relatives Act 1897
(NSW), but this submission was not elaborated on and I express no views on it.
539.
The plaintiff widow took action claiming that the police were liable to
her for a negligent failure to exercise the power to detain her husband under s
10 of the Mental Health Act 1986 (Vic), which permitted a police officer
to apprehend a person:
who appears to be mentally ill if the [police officer] has
reasonable grounds for believing that – (a) the person has recently attempted
suicide ... ; or (b) the person is likely ... to attempt suicide ...
540.
That claim was upheld by a majority on appeal to the Victorian Court of
Appeal, but was rejected by all members of the six-member High Court.
541.
French CJ and Crennan and Kiefel JJ found that the police did not have
power to detain the deceased because they had not formed the view that he was
mentally ill; this was one of the conditions for the exercise of the power
under the Victorian Mental Health Act, so the power was not enlivened
and therefore “[t]he duty of care which the majority in the Court of Appeal
found to exist could not have existed” (French CJ at [63]) and “[s 10] supplied
no relevant statutory power to which a common law duty could attach” (Crennan
and Kiefel JJ at [150]).
542.
Although French CJ summarised the analyses of the members of the Court
of Appeal, his Honour did not express any specific conclusions about those
analyses. Crennan and Kiefel JJ treated the claim as “analogous to one for
breach of statutory duty” (at [140]) and noted that there was no obligation to
exercise the statutory power concerned even where the circumstances for its
exercise were satisfied (at [144]). Their Honours concluded their analysis of
the proposed duty of care at [146]:
The discussion to this point may not suggest as inappropriate
the cause of action for breach of statutory duty where a statute contains
special measures directed towards a class of persons, where its evident purpose
is their protection and when it may be inferred that the legislature expects
that the powers will be used in particular circumstances, although exercise of
a discretion may impact upon the lastmentioned feature. The reasoning of the
majority in the Court of Appeal may be seen as directed to the majority of
these considerations. It is not necessary to determine whether all such
features were present in this case, but not for the reason that the plaintiff
eschewed reliance upon such an action. Regardless of which cause of action was
appropriate to this case both required the power in s 10(1) to have been
available for the police officers’ use. A consideration of that sub-section,
which was not undertaken by the majority, reveals that the power of
apprehension was not enlivened.
543.
The other three members of the Court (Gummow, Hayne and Heydon JJ) at
[83]‑[101] analysed the claim as resting on an alleged duty to exercise a
statutory power. At [113] their Honours referred to the tests for whether the
holder of a statutory power may owe a common law duty of care as follows:
Evaluation of the relationship between the holder of the
power and the person or persons to whom it is said that a duty of care is owed
will require examination of the degree and nature of control exercised over the
risk of harm that has eventuated, the degree of vulnerability of those who
depend on the proper exercise of the relevant power, and the consistency or
otherwise of the asserted duty of care with the terms, scope and purpose of the
relevant statute. Other considerations may be relevant. (citations omitted)
544.
Their Honours then noted at [114] that the police officers did not
control the source of the risk of harm to the deceased, at [116] contrasting
this with the case of a prisoner in custody. At [118] their Honours pointed out
that the case concerned a failure to exercise a statutory power rather than the
negligent exercise of such a power, and concluded:
the submission in the present case is that the existence of
the statutory power, coupled with proof of the existence of facts that would
have warranted its exercise, should be held to give the plaintiff a cause of
action for the damage occasioned as a result of the power not being exercised.
For the reasons that have been given, the characteristics of the relationship
between the police officers (as holders of the power given by s 10 of the Mental
Health Act) and Mr Veenstra (as the person against whom the power
would be exercised) do not answer the criteria for intervention by the tort of
negligence. (citations omitted)
545.
There is nothing in the High Court decision that is directly relevant to
the question of whether police owe a common law duty of care in respect of any
of their official activities, and nothing that I can see that requires
consideration in the current case of the Victorian Court of Appeal’s analysis
of the common law position.
546.
I am not convinced that Campbell JA’s categorisation in Tyzsyk of
the non-investigation cases in which police may be liable in negligence as
cases in which police assumed a duty of care in a particular task and in which
the injury resulted from a specific positive act by the police officer
concerned is quite wide enough, and I prefer the more general formulation of
the Victorian Court of Appeal in Richards that “an officer may owe a
duty of care to prevent injury to the subject of a police operation or to a
third person” (at [525] above). It seems to me that in a case in which police
have assumed a duty of care by taking control of a particular situation in
reliance on their authority as police officers, even a specific failure to act
that causes injury (such as the failure to render assistance after the
plaintiff had been subjected to OC spray as pleaded in Richards) or a
combination of failures and positive acts that create a situation in which
damage results, may in some cases be sufficient to constitute a breach of
duty. However, this uncertainty does not affect my conclusions in this case,
where the police negligence that I have found was constituted by specific
positive acts (see [1088] below).
(i) owe a duty of care
in the same way as any other member of the community (what might be termed a “civilian”
duty of care)—for instance, to drive with appropriate care (Norman v Spiers
(2004) 155 ACTR 8; Schilling v Lenton); and
(ii) owe a duty of care
to people in police custody (Howard v Jarvis; Riley); and
(iii) assume a duty of
care to an identifiable person or group of persons, in which case they may be
liable for negligence constituted at least by specific positive acts, and
possibly more generally by acts, that result in damage to such persons (Knightley,
Rigby, Gibson, Zalewski, Richards; the police
admissions in Ashley are also consistent with this proposition, and in Rush
v Commissioner of Police (2006) 150 FCR 165, Finn J at [97] referred to
several other cases in which a duty of care has been assumed or found to exist).
548.
If investigations immunity is described as applying to the “conduct” of “investigations”,
and both terms are used fairly carefully, there is no particular difficulty in
distinguishing the cases covered by such immunity from the myriad other kinds
of cases in which police have been found to owe a duty of care, as summarised
in [547] above. Nor is it hard to make sense of the distinctions drawn in Hill,
the policy reasons for the decision in that case, or the decisions in Sullivan
v Moody and the cases cited at [547(a)] above.
549.
On the other hand, the argument made in this case, and by implication in
Klein, that investigations immunity applies with only very specific
exceptions to every situation in which there is or may in the future be
anything that could be called a police investigation, is neither rational nor
consistent with the authorities already canvassed.
550.
The majority of police work presumably does involve investigating offences
or possible offences, and a large part of the day-to-day activities of most
police officers could be said to occur in the course of investigations. Even
more clearly, most specific police operations, such as examining crime scenes,
interviewing witnesses, executing search warrants, and apprehending suspects,
are associated with investigations.
551.
The cases suggest, however, that courts have generally had no particular
difficulty in distinguishing between, on the one hand, cases that relate to what
might be described as the nature and content of investigations or the
consequences of that content (Hill and the cases that followed it),
which raise issues such as the allocation of resources, the choices made by
police officers of lines of inquiry and the care and efficiency with which
lines of inquiry are pursued, the records made in the course of inquiry and the
management of information generated during an investigation, including in the
course of an apprehension, and on the other hand the cases that involve police
assuming a duty of care in a particular situation. This is so irrespective of
the fact that most if not all of the latter cases involved situations that
either were associated with an existing investigation or that would probably
have involved some kind of investigation once the immediate situation had been
resolved. For instance, the traffic accident that blocked the tunnel in Knightley,
and the “sieges” in Rigby, Zalewski and Klein, would
presumably have been investigated with a view to determining whether any
offences had been committed and whether charges should be laid. The OC‑assisted
apprehension of an offender in Richards also seems likely to have been
associated with an investigation of some sort.
(a)
damage caused by failure to identify and apprehend an offender before he
re-offends (Hill);
(b)
psychiatric or psychological harm, whether caused:
(i)
to suspects by incorrect accusations (Sullivan v Moody), as a
result of unwarranted time in custody resulting from police failure to pursue
potentially exculpatory evidence (Cran) or as a result of the manner in
which a suspect was interviewed (Gruber v Backhouse [2003] ACTSC 18);
(ii)
to a victim who was inappropriately treated only as a witness (Brooks);
(iii) to relatives of a deceased person
who was incorrectly identified (Halech v SA [2006] SASC 29) or not
identified in a timely way (Cumming); or
(iv)
to a person involved in a road accident (but not a suspect) about whom
incorrect information was recorded (Tame);
(c)
physical injury or death arising from failure to pursue a victim’s prior
reports of threatening behaviour (Van Colle/Smith); and
(d)
damage caused by a failure to give proper advice about matters arising
incidentally to an investigation (Rickard).
554.
The absence of a duty of care in respect of the specific content and
consequences of an investigation as such does not in my view imply the same
absence of a duty of care in respect of all activities that are incidentally
part of an investigation. Nor does this result appear to be required as a
matter of principle or policy.
555.
The negligent driving cases provide a useful example; if a police
officer who drives negligently in the course of performing functions relating
to a bushfire (Norman v Spiers) or a police officer who drives
negligently while pursuing an offender (Schilling v Lenten) may be
liable for the injuries they cause to another driver, why should a police
officer who drives negligently on his way to interview a witness be said to owe
no duty of care to anyone injured as a result of that negligence simply because
the negligence happened incidentally to an investigation?
556.
The physical action of apprehending a suspect (with the attendant risks
of physical injury to the suspect or to others in the vicinity), while another
step closer to the content and conduct of an investigation than mere driving in
the course of an investigation, seems logically to belong in the category of
police operations in which police officers assume a duty of care; the more
abstract consequences of such an action (for instance, the possible reputation
damage to a person who is arrested in public), on the other hand, seem to fit
squarely within the scope of investigations immunity as canvassed in Tame.
557.
Accordingly, I propose to determine this action on the basis that
liability for physical injuries caused as a result of police negligence, even
if that negligence occurs in the course of police action that is directly
related to a current investigation, is to be determined by reference to whether
in the circumstances of the particular case the police officers involved have
assumed a duty of care, rather than by reference to a general absence of any
duty of care in relation to anything that happens in the course of a police
investigation.
558.
There are no doubt various ways in which police may assume a duty of care
in a particular situation; for present purposes it is sufficient to say that
where police have taken control, or are attempting to take control, of a
situation in reliance on their authority and powers as police officers, it is
reasonable to find that they have assumed a duty of care to anyone who is
directly caught up in their exercise of authority. This principle is
consistent with Rigby, Zalewski, Schilling v Lenton, Riley
(as it related to police negligence), Richards, probably Knightley
(although that case is complicated by the fact of the plaintiff police officer
being subject to the orders of his superior officer), and Ansett in
which Mason P (with whom Powell and Beazley JJA agreed) said at 148:
It was not disputed that, since the police had taken charge
of the accident scene, they had come under a duty of care to road users to
supervise carefully: Ticehurst v Skeen (1986) 3 MVR 307).
559.
The principle is also consistent with the comment of Campbell JA in Tyszyk
at [139] that police do not take on a duty of care by going to the scene of
danger if they “do not take control of it and do nothing to make it worse”.
561.
Apart from anything else, it is easy to imagine situations in which it
may be difficult for police to distinguish accurately between innocent
bystanders and offenders or possible offenders. Even in cases in which police
believe they need to protect a potential victim from the actions of an apparent
attacker, it would not in my view be rational to say that only the potential
victim and any bystanders are entitled to be treated non-negligently.
562.
In Batchelor v State of Tasmania [2005] TASSC 11 (Batchelor),
police were claimed to be liable for the suicide of a person who had previously
murdered his estranged wife; Blow J said:
If the police [officers] had arrested the father, I think it
is at least arguable that they would then have owed him a duty to take
reasonable care to prevent him from harming himself. See Kirkham v Chief
Constable of the Greater Manchester Police [1989] EWCA Civ 3; [1990] 2 WLR
987. However, this was not a case where any police officer had assumed any
responsibility for the father by taking him into custody. At least as a
general rule, a police officer owes no duty of care to a person whose conduct
is being investigated: Tame.
564.
Even accepting, as I have, that the authorities do not require the
police to be protected by investigations immunity in a situation in which they
have assumed a duty of care by taking control of a situation, there is a
separate question whether the coherence of the law requires me to resist what
counsel for the police described, without attribution, as “the imperial march
of the tort of negligence” (Spigelman CJ, ‘Negligence: The Last Outpost of the
Welfare State’ (speech delivered at the Judicial Conference of Australia:
Colloquium 2002, Launceston, 27 April 2002)) and exclude the application of the
tort of negligence in the particular circumstances of this case.
(a)
the claim could have been successfully defended under the law relating
to another cause of action (defamation is commonly mentioned—Tame at
[123], McHugh J); or
(b)
the defendant could not lawfully have acted in the way identified as the
non-negligent response to the circumstances in which the defendant found him or
herself (C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009]
HCA 47 (CAL No 14) at [40], Gummow, Heydon and Crennan JJ); or
(c)
the defendant was subject to other duties that were irreconcilable with
the particular duty sought to be imposed on him or her (Sullivan v Moody at
[60]; CAL No 14 at [39], Gummow, Heydon and Crennan JJ) including
duties not to commit other torts; or
(d)
the claimed duty would be in conflict with, or even just generally
inconsistent with, a legislative regime (Sullivan v Moody at [62]; CAL
No 14 at [41], Gummow, Heydon and Crennan JJ).
566.
In this case the only kind of incoherence that counsel said would arise
out of a finding of police liability was that arising from irreconcilable
duties; it is said that when the two police officers came upon Jonathan in
Doyle Terrace, they were subject to duties that could not be reconciled with
any duty of care in relation to Jonathan.
567.
Under the Australian Federal Police Act 1979 (Cth), the functions
of the AFP are, relevantly, “the provision of police services in relation to
the Australian Capital Territory” (s 8(1)(a)); “police services” include “services
by way of the prevention of crime and the protection of persons from injury or
death, and property from damage, whether arising from criminal acts or
otherwise” (s 4(1)).
568.
The police function is to prevent crime and to protect persons from
injury or death, whether arising from criminal acts or otherwise. There is no
basis that I can see for interpreting this as applying only to injury or death
caused otherwise than by police officers, and the specific extension of the
function beyond protection from injury or death caused by criminal acts would
not support such an interpretation.
569.
The general duty of AFP officers is expressed in the oath or affirmation
made by AFP members (Forms 2 and 3, Schedule 1, Australian Federal Police
Regulations 1979 (Cth)):
that, whenever performing duty in the Australian Capital
Territory, I will cause Her Majesty’s peace to be kept and preserved, and
prevent, to the best of my power, offences against that peace, and that, while
I continue to be a member (or special member) of the Australian Federal Police,
I will, to the best of my skill and knowledge, faithfully discharge all my
duties according to law:
570.
The role or function of AFP officers is to prevent crime, to protect
persons from injury and death (not necessarily arising from criminal acts), to
keep and preserve the peace, and to prevent offences against that peace. In
some circumstances this duty authorises actions that would otherwise be
illegal; for instance, breaches of traffic laws, physical violence and
restraining the freedom of individuals. Clearly, however, it does not free
police completely from any obligation to comply generally with the law, and I
can see no basis for holding that it frees police completely from the impact of
the law of torts. Nor has anything been put before me to suggest that the AFP
duty is expressed in significantly different terms from the duty of any other
police force whose activities were the subject of any of the police cases I
have relied on.
571.
Counsel for the police, however, says that the functions and duties of
the police would conflict irreconcilably with any more specific duty of care to
individual offenders or suspects, such as is claimed in this particular case.
I have already commented at [560]‑[563] above that if a duty of care is
owed in an operational situation, no distinction can sensibly be drawn between
offenders and suspects on one hand and innocent bystanders on the other,
although the actions required or excluded by the duty might differ depending on
the specific events. It seems to me that a duty of care not to cause injury by
negligence in an operational situation (whether to offenders, victims,
bystanders or other police officers) in no way conflicts with the general
function of preventing crime and protecting persons from injury or death, but
fits comfortably within that broader police function. That approach to police
functions and duties is entirely consistent with the AFP’s own approach, as
reflected in its operational policing policy documents discussed below, which
include the principles that “The safety of police, the public and offenders or
suspects is paramount” (at [614] below) and that “The primary consideration
must be the safety of all persons involved” (at [616] below).
572.
Furthermore, there is no necessary incoherence in finding that a police
officer has a duty to do several different things in dealing with a particular
situation and that choices might have to be made about what to do first or at
all (Tyszyk at [511] above and Sullivan v Moody at [472] above),
and there is no necessary incoherence in finding that police may owe a duty of
care to particular individuals while they are performing a general duty of
apprehending an offender arising out of an investigation (Richards).
573.
In particular, there is no incoherence in finding that police owe a duty
of care to two or more people caught up in the same incident. There may be
choices to be made in how the duty of care is accounted for in police actions,
and there may be negligence in the making of those choices. There may be cases
(particularly those involving conflict between those people, such as where one
person is apparently attacking or threatening other persons) where the choices
may appear to lie between two genuinely conflicting duties of care, but in my
view that apparent conflict can be resolved by a careful formulation of the
duty of care (which will be done intuitively by a police officer in the heat of
the moment but may need to be done explicitly by a court). For instance, where
a person (mentally disturbed or not) is attacking another person, the duty of
care owed to each participant by a police officer would be to take all
appropriate care in protecting the victim from the attacker. A person who is
attacking another person may need to be pulled off his victim with some force,
and the use of justifiable force would not be in breach of any duty of care
even if it caused physical injuries to the offender. On the other hand, the
need to use force to pull the offender away from the victim would not of itself
justify a police officer in then negligently throwing the offender away from
the scene of the attack and into a position of specific danger (say, onto a
railway line or into the path of an oncoming car).
574.
The plaintiff’s concession, made at the end of the hearing, that SC
Pitkethly was not at fault in firing the shot that was the direct cause of the
plaintiff’s injuries, recognises that even where police have assumed a duty of
care to a person, the duty of care is not unqualified. Similarly, it is
implicit in arguments put on behalf of the police and not disputed by the
plaintiff that if, when the two police officers arrived in Doyle Terrace, they
had found Jonathan attacking Andrew Oakley, they would have been justified in
getting out of their car to rescue Mr Oakley, even if that had resulted in a
violent confrontation with Jonathan that ended in his shooting.
[The responsibilities under Module 106] weren’t the only
responsibilities that these two officers had, they had an enormous number of
responsibilities in terms of protocols, in terms of members of the public they
had to take into account, in terms of their obligations under the Act and so
on. ... you’ve got to look at their situation in terms of urgency, in terms of
those responsibilities and in terms of their primary duty of protecting the
public.
[The police] didn’t want [Jonathan] to get away ... there was
a risk to other people ... [Jonathan] could’ve run away. He could’ve done other
damage ...
There was a danger to the public, there was an imminent
danger to Mr Oakley, there was a more distant, but nevertheless, real
danger to other people, including people elderly or children who might’ve been
in the houses, they needed to deal with it.
576.
There is no doubt that the police officers had a number of things to
take into account in their dealings with Jonathan, but this does not
distinguish their task from that of any other person who is, in effect, exercising
judgment in a complex situation in which multiple different considerations must
be accounted for – a situation which is far more common than the situation in
which the next steps are obvious and unarguable and no exercise of judgment is
actually needed. However, making a judgment that merely involves multiple
considerations is substantively different from the Sullivan v Moody
situation, in which the defendants were bound to treat the interests of the
children involved as paramount and therefore had no capacity to make judgments,
and adjust their activities, to take account of the interests of the plaintiff
fathers.
577.
Finally, counsel for the police relied on State of New South Wales v
Fahy (2007) 232 CLR 486 (Fahy), in which a police officer
claimed damages for psychiatric harm allegedly caused by the negligence of the
NSW Police Service; the plaintiff suffered a post-traumatic stress disorder as
a result of having been left alone in a stressful situation by another police
officer with whom she was partnered.
578.
The negligence alleged was analysed by Gummow and Hayne JJ as a failure
to issue an instruction that police working in pairs were, subject to certain
qualifications, to provide psychological support to each other during traumatic
incidents. Counsel noted the reference in Fahy at [77] (Gummow and
Hayne JJ) to the statutory duty of police “trumping” a separate duty that might
be imposed on a police officer to protect his or her partner in traumatic
circumstances. The plaintiff’s claim failed because the High Court found at
[76] that a specific instruction of the kind that the plaintiff said should
have been issued to police officers would have been irreconcilable with the
statutory obligations, to obey lawful orders and to carry out their lawful
duties, that are imposed on police by the Police Service Act 1990 (NSW),
now the Police Act 1990 (NSW). Those obligations were imposed in
particular by s 201 of that Act, which created an offence of neglecting or
refusing to obey any lawful order or carry out any lawful duty as a police
officer (but which does not appear to have a counterpart in the Australian
Federal Police Act).
579.
Fahy is distinguishable from the current case, not only because
the damage alleged in Fahy was psychiatric harm, but because the
plaintiff in this case does not rely on any separate obligation to him apart
from the obligation owed by police in performing their general policing duties
(whether described in legislation or arising at common law). The duty of care
asserted arose directly out of the police assumption of control in Doyle
Terrace in the course of performing their statutorily-recognised duties of
keeping the peace, preventing crime, and protecting persons from injury or
death (whether arising from criminal acts or otherwise), as guided by
Commissioner’s Orders (including Commissioner’s Order 3, set out at [612] below)
and other protocols and guidelines.
582.
Counsel for the police referred on several occasions to comments made in
the UK case of Van Colle/Smith to the effect that “investigations
immunity” would in some cases leave a plaintiff feeling hard done by, but that
this simply reflected the need in this context for the wider public interest to
be protected at the expense of individual interests. He quoted Lord Carswell at
[106]:
One must acknowledge at once that the price of the certainty
of the rule and the freedom from liability afforded to police officers is that
some citizens who have very good reason to complain of the police handling of
matters affecting them will not have a remedy in negligence (cf Lord Steyn’s
observation in Brooks at para 31). One has to face this and decide
whether in the wider public interest the law should allow that. I am of
opinion, in agreement with Lord Hope (para 78) that in the interests of the
wider community it is necessary that it should do so for the better performance
of police work.
585.
However, while self-induced illnesses and injuries, especially those
that also involve breaking the law, may attract less sympathy than other kinds
of illnesses and injuries, our society does not withhold treatment or support
from sufferers of such illness and injuries. Smokers and footballers receive
high quality medical treatment for the results of their activities, heroin
users are revived by paramedics, and the victims of motor vehicle accidents
(even when they are the drunk or speeding drivers responsible for the
accidents) are rushed to hospital. Whatever the cause of his psychotic
illness, once Jonathan lapsed into behaviour that was clearly abnormal and
dangerous (rather than simply vicious) he was entitled to the same protection
that society routinely offers to members of the community who are not able to
look after their own interests properly (such as children and intellectually
disabled adults) and his possible contribution to his psychotic illness does
not seem to me to exclude the existence of any duty of care that would
otherwise have arisen.
586.
There was no assertion of contributory negligence on Jonathan’s part,
and accordingly in determining his claims I ignore any possible contribution
that his cannabis use might have made to the psychotic episode that is central
to those claims.
587.
I am satisfied that when Senior Constables Pitkethly and Willis saw
Jonathan in Doyle Terrace, brought their car to a stop very close to him, and
did not reverse the car (to undo any part of their approach that reflected
simply an inability to pull up further away), they were taking control of the
situation. That intention emerges not just from their actions in immediately
getting out of the car with OC spray at the ready and giving orders to
Jonathan, but from their own evidence about their intention to contain Jonathan
in the interests of protecting Mr Oakley and any other member of the public who
was, or might have been, in the vicinity and at risk from Jonathan.
589.
It is useful to check this finding against the factors seen as
justifying the exclusion of a police duty of care in relation to
investigations, as set out at [552] above.
590.
First, there is no difficulty in the current case in identifying those
to whom a police duty of care was owed.
591.
Secondly, I have already concluded at [580]-[581] above that the
existence of a police duty of care to those caught up in the events on Doyle
Terrace did not subject the police to any irreconcilable duties.
592.
Thirdly, as to the public policy impacts (described at [535] above), the
existence of a duty of care in relation to the situation in Doyle Terrace would
not have created any “detrimentally defensive frame of mind” in relation to any
actual investigation of Jonathan’s activities (eg considering which members of
the public to interview and what to ask them); nor would it have raised any
particular issues “touching deeply on the conduct of” any such investigation
(as distinct from the issues relating to the physical activities involved in
resolving the immediate situation). Rather, a duty of this kind was recognised
in applicable police protocols and training; for instance, the first of the Ten
Safety Principles (at [614] below), headed “Safety First”, is “The safety
of police, the public and offenders or suspects is paramount”.
593.
The last aspect of the public policy impacts, namely that the existence
of a duty of care has the potential to involve the police in trouble and
expense arising out of legal actions, “absorbing resources that would be better
devoted to the suppression of crime”, is more troubling. I consider that it
cannot be given too much weight except in support of the other two public
policy issues.
594.
The basic proposition is, in effect, that publicly-funded bodies should
be permitted to devote their resources entirely to the specific aims for which
they are funded – schools should concentrate on teaching, hospitals should
concentrate on healing the sick, and police should concentrate on suppressing
crime. At first glance this is an entirely sensible proposition, but the effect
of such an approach would be to reject the currently wide-spread expectation
that publicly-funded bodies should be accountable both for the expenditure of
public funds and more broadly for the exercise of the powers and discretions
conferred on them for the purpose of their functions, an expectation that is
reflected in Australia in the proliferation of methods of scrutinising the
expenditure of public moneys and methods of challenging both specific and
systemic exercises of public powers. An environment in which publicly-funded
bodies are expected to devote significant proportions of their funds to
reporting on and defending their activities, including before a variety of
parliamentary bodies and administrative and judicial tribunals, is not an
environment in which it could appropriately be said by a court that a
publicly-funded body should not be liable to otherwise justifiable litigation
because of the impact of that litigation on the body’s funding. Any such
decision would be a decision for a legislature.
596.
The plaintiff’s pleadings allege negligence by the AFP as such and by
the AFP through its vicarious liability for the negligence of its officers, and
by SC Pitkethly himself. The negligence alleged against SC Willis is only
relevant to the AFP’s vicarious liability. The various forms of negligence
alleged are summarised below.
597.
The negligence pleaded against the AFP involves the following matters:
(a)
failings in the AFP procedures for dealing with people acting in an “aberrant
manner”, in particular in relation to making appropriate inquiries of ACTMH and
in relation to supervising and enforcing AFP procedures for dealing with such
people;
(b)
failings in relation to the arrangements for the use of OC spray by AFP
officers and in relation to the specific use of OC spray against Jonathan;
(c)
negligence by either or both of Senior Constables Pitkethly and Willis,
for which the AFP concedes it would be vicariously liable.
598.
The negligence pleaded against SC Pitkethly can be summarised as
follows:
(a)
failings in relation to his lack of contact with ACTMH and his departure
from the rendezvous point at Chapman shops without instructions;
(b)
failings in relation to various aspects of his use of the police car;
(c)
failings in relation to the manner in which he confronted Jonathan when
he got out of the car, and in relation to the circumstances in which he chose
to engage in such a confrontation;
(d)
failings in relation to the use of weapons, namely the OC spray, the
baton, and the gun.
601.
At the end of the trial, counsel for the plaintiff said that he relied
on “operational negligence on the day”, thereby disclaiming aspects of the
particulars set out in the final statement of claim filed by leave in court
during the hearing. I shall generally not express any conclusions about the
particulars apparently disclaimed.
602.
In determining whether there has been negligence as pleaded, the matters
of evidence to be considered are:
(a)
the events of December 2001 as I have found them to be;
(b)
the knowledge and assumptions of Senior Constables Pitkethly and Willis
about the circumstances of that day;
(c)
the AFP procedures, protocols and training materials, and the training
and instructions received by Senior Constables Pitkethly and Willis, that
provided the context in which the police officers operated; and
(d)
the opinions of expert witnesses.
603.
Some of the pleadings specifically raise issues of AFP procedures and
protocols; as well, whether officers have acted in accordance with their
training and instructions may be relevant in assessing whether there has been
negligence by police officers in “assumption of duty of care” cases. It is
useful to try to clarify the specific relevance of any failure to act in
accordance with training and instructions before considering the evidence about
AFP procedures and protocols and police compliance with them.
604.
In Zalewski, Hansen J said at 579 that “the basis of the immunity
contended for before this court did not exist, because Zalewski did not
act in accordance with his training and instructions”. This was referred to by
Blow J in Batchelor at [25].
605.
In Richards the Victorian Court of Appeal noted that not only did
the plaintiff plead “injuries resulting from specifically identified
antecedent, and subsequent, negligence by the police”, but that “on the facts
as pleaded the police acted unreasonably and may not have acted in accordance
with their operational training” (at [527] above).
606.
Accepting that disregard by police officers of their training or
instructions is relevant in cases where actions in negligence are brought
against police officers, I am not convinced that this is because such a
disregard renders an immunity (however defined) unavailable, or imposes a duty
of care. Rather, I consider that as a matter of logic, disregard of training
or instructions is relevant not to the existence or otherwise of immunity or of
any duty of care, but to whether there has been negligence or breach of such a
duty.
607.
Compliance with training and instructions may be very important in
determining whether, in an operational context in which judgment calls may need
to be made at speed and under stress, a police officer has in fact been
negligent. If a police officer has acted, to the extent that circumstances
permit, carefully, thoughtfully and “by the book”, it might often or usually be
fair to say that the outcome of the operation, however unexpected, unintended
or disastrous, did not result from any negligence or breach of duty on the part
of the officer. This is not the same as saying that the officer owes a duty of
care only when he or she behaves negligently by disregarding training or
instructions, but not in respect of other forms of negligence.
608.
Whether or not this is the correct analysis of the significance of
training and instructions, it is necessary in this case to consider a large
volume of evidence about AFP orders, policies and principles, and about the
training that was generally provided in the AFP and that Senior Constables
Pitkethly and Willis had received, as well as the smaller volume of evidence
about specific instructions in relation to the search for Jonathan that were
given at the rendezvous point at the Chapman shops.
609.
A large number of AFP documents were in evidence. Federal Agent Rath
gave some evidence about their currency, as did DSC Carnall, and Senior
Constables Pitkethly and Willis gave evidence of what they had been aware of
before the shooting.
610.
Much of the following overview of the documentary framework reflects
evidence given by Federal Agent Rath directly, or information I have inferred
from his evidence.
611.
In 2001, the principal AFP governance document about operational safety
and the use of force was Commissioner’s Order 3 (CO3). Commissioner’s
Orders are issued under s 38 of the Australian Federal Police Act. The
version of CO3 that was in evidence was issued in 2000 and took effect from 2
July 2000 (the commencement of the Australian Federal Police Legislation
Amendment Act 2000 (Cth)). It deals comprehensively with the use of force
by the AFP, and contains the following chapters: General; Use of Force;
Firearms; Batons; Handcuffs; Chemical Agents; Munitions and Equipment; Handling
of Munitions; Training; Assessment; Qualifications; Transitional.
2. USE OF FORCE
2.1 General
(1) The use of minimum force, which is reasonably
necessary in the circumstances of any particular case, underpins all Australian
Federal Police conflict management strategies. The principles of negotiation
and conflict de-escalation are always emphasised as alternatives to the use of
physical force. The use of lethal force is an option of last resort, only to
be used when reasonably necessary in order to protect life.
(2) Equipment, munitions, and specialised firearms are
issued to an AFP employee or special member for his or her personal protection
and for the protection of others who are faced with an immediate threat of the
application of physical violence. In responding to a threat of serious
physical injury or the loss of life, an AFP employee or special member must not
use more force than is reasonably necessary in order to remove the threat.
(3) An AFP employee or special member must, at all
times, only use the minimum amount of force necessary in the performance of his
or her duty.
...
2.3 Use of Lethal Force
(1) Lethal force is the option of last resort.
(2) Where an AFP employee or special member considers
the use of lethal force to be reasonably necessary, he or she must:
a) act in proportion to the seriousness
of the circumstances; and
b) minimise
damage or injury to other people with a view to the preservation of all human
life.
...
3. FIREARMS
3.1 General
(1). An AFP employee or special member must only use an
official firearm in the course of his or her duty for the purposes set out in
subsection 3.2(1) of this Order.
(2). Before using a firearm in accordance with
paragraph 3.2(1)(a), an AFP employee or special member must first consider
alternative means of protection. One such consideration should be the
practicality of withdrawal from the place of danger.
3.2 Discharge of Firearms
(1) An AFP employee or special member may only
discharge an official firearm in the following circumstances:
a) against another person:
(i) in self defence from
the immediate threat of death or serious injury; or
(ii) in defence of others
against whom there is an immediate threat of death or serious injury;
only when less extreme means is
insufficient to achieve these objectives.
...
(2) Prior to discharging a firearm, an AFP employee or
special member must, where practicable:
a) identify him or herself
as police;
b) give
a clear oral warning of his or her intention to use a firearm; and
c) ensure
there is sufficient time for the warning to be complied with before using the
firearm, unless he or she believes on reasonable grounds that this would:
(i) unduly
place him or herself at risk of serious injury or death;
(ii) create
a risk of serious injury or death to other people; or
(iii) be
clearly inappropriate or pointless given the circumstances of the incident.
...
4. BATONS
4.1 General
(1) A
baton is an impact weapon which, if issued to an AFP employee or special
member, is only to be used by him or her in order to provide protection against
violent attack.
(2) Before
using a baton, an AFP employee or special member should wherever practicable,
consider and employ alternative methods of securing protection.
(3) An
AFP employee or special member must not use a baton unless he or she believes
on reasonable grounds that the use is reasonably necessary in order to reduce
the risk of violent attack.
(4) This
section does not apply to circumstances where an AFP employee or special member
is undergoing training under the direct supervision of a defensive skills
instructor.
...
6. CHEMICAL
AGENTS
6.1 General
(1) An
AFP employee or special member may only use chemical agents against another
person where he or she believes on reasonable grounds that their use is
reasonably necessary in order to:
a) defend
him or herself, or others from physical injury in circumstances where
protection cannot be afforded less forcefully;
b) arrest
a suspect whom he or she believes, on reasonable grounds, poses a threat of
physical violence and the arrest cannot be affected [sic] less forcefully;
c) resolve
an incident where a person is acting in a manner likely to seriously injure him
or herself and the incident cannot reasonably be resolved less forcefully; or
d) to
deter attacking animals.
(2) Subsection 6.1(1) does
not apply to circumstances where an AFP employee or special member is
undergoing training under the direct supervision of a defensive skills
instructor.
613.
In Federal Agent Rath’s words, “There were a raft of other guiding
principles that sit under ... CO3”. It was not clear, but it does not seem to
matter, whether “sitting under” meant that the other principles were
promulgated pursuant to authority given by CO3 or that they were simply of
lower status or authority within the AFP. Those other principles (sometimes
referred to as protocols) were set out in documents that included the
following:
(a) Ten Safety Principles
for Operational Policing;
(b) Police Safety
Principles (Circular Model);
(c) ACT Region 10 Point
Safety Plan.
1. Safety First
The safety of police, the public and offenders or suspects
is paramount.
2. Risk Assessment
Risk assessment is
to be applied to all incidents and operations.
3. Take Charge
Effective command
and control must be exercised.
4. Planned Response
Every opportunity should be taken to convert an unplanned
response into a planned operation. Use all available resources including
Crisis Intervention Team, Ambulance Officers, Psychiatrists or family members.
5. Cordon and Containment
Unless it is not practical to do so, a ‘cordon and
containment’ approach is to be adopted – use trained police negotiators in all
cases.
6. Avoid Confrontation
A violent
confrontation is to be avoided.
7. Avoid Force
The use of force is
to be avoided.
8. Minimum Force
Where force cannot be avoided, only the minimum amount
reasonably necessary is to be used.
9. Forced Entry Searches
Forced entry
searches are to be used only as a last resort.
10. Resources
It is acceptable that the ‘safety first’ principle may
require the deployment of more resources, more complex planning and more time
to complete.
REASONABLE
·
Any application of force must be reasonable, necessary &
proportionate to the threat or resistance offered
EVALUATION
·
Prior intel gathering and evaluation may reduce the need for
later use of force
·
Conduct risk assessments
SAFETY
·
The primary consideration must be the safety of all persons involved
PREPARATION
·
Mental and physical
·
Planning is critical
·
Consider limitations and parity/disparity
OBJECTIVES
·
Should be continually re-assessed
·
Do not lose sight of aims & objectives merely because of
confrontation
NEGOTIATION
·
Negotiation is the primary preferred means of confrontation
management
·
Communication should be active and ongoing wherever possible
·
Cordon and containment options are preferred – forced entries are
to be avoided
SENSITIVITY
·
Adoption of communication strategies for dealing with the
mentally ill
·
Acceptance and accommodation of cultural diversity in
interactions
·
Sensitivity to the persons and issues involved
EMPOWERMENT
·
Acceptance of responsibility and accountability
·
Allocation of appropriate resources
·
Effective command and control – assertive communication style
620.
Federal Agent Rath noted that the need for assessment and re-assessment
was particularly important in relation to the applicable “use of force” model,
because some time previously a linear or continuum model (with force options to
be tried in a specified order) had been replaced by a model providing a range of
options, not organised in any kind of hierarchy, from which the appropriate
options are to be chosen through that assessment and re-assessment process.
This change of approach was also seen as important by SC Pitkethly (see [642]-[643]
below).
6. Avoid Confrontation
A violent
confrontation is to be avoided.
7. Avoid Force
The use of force is
to be avoided.
8. Minimum Force
Where force cannot be avoided, only the minimum amount
reasonably necessary is to be used.
622.
The Safety Principles Circular Model provides the following
guidance about the use of force:
REASONABLE
·
Any application of force must be reasonable, necessary &
proportionate to the threat or resistance offered
NEGOTIATION
·
Negotiation is the primary preferred means of confrontation
management
·
Communication should be active and ongoing wherever possible
·
Cordon and containment options are preferred – forced entries are
to be avoided
623.
It is easy to see how an officer who was only familiar with the Safety
Principles Circular Model might not have been fully aware of what a high
priority the AFP placed on avoiding the use of force.
624.
On the other hand, training and retention aids such as mnemonics no
doubt have a value, and it may be that the loss of clarity resulting from the
mnemonic format is made up for by the increased retention by trainees of the basic
principles covered in the Safety Principles Circular Model.
625.
One other relevant document needs to be mentioned. In evidence was a
document headed Standing Operating Procedures: Operations Support Group,
and signed by Assistant Commissioner W J Stoll, ACT Region, in December 1997.
This document is not on its face identified as a draft, but DSC Carnall gave
evidence that it was only a draft. He had a copy of the document, but it had
not been issued, and might not have been available, to all AFP officers, so
that it was possible, he said that not all police officers were even aware of
its existence.
626.
In contrast, according to DSC Carnall, a Standing Operating Procedure
about the Special Operations Team (SOT) was in force, specifying that
SOT was responsible for dealing with armed offenders; that document was not put
in evidence. DSC Carnall said that there was a formal call-out process
for SOT involving Communications and senior police officers.
627.
Apart from general safety principles in various forms, there were also
in evidence two documents relating to police dealings with mentally ill or
mentally disordered people:
(a)
ACT Policing Guideline for Best Practice 5/2000, Persons suffering
from Mental Illness or Mental Dysfunction; and
(b)
Education and Training Module 106, being Safety Principles –
Dealing with a Person Suffering From a Mental Illness/Disorder, dated
December 1997 (Module 106), including several pages headed Participant
handout – Dealing with Persons
Suffering from a Mental Illness/Disorder (Participant Handout).
628.
The Best Practice Guideline 5/2000 deals largely with the exercise of
police powers under the ACT Mental Health Act; it provides no substantive
guidance on recognising, or managing dealings with, people who are mentally ill
or mentally dysfunctional.
(1) Show understanding and
concern to all involved, including children;
(2) Don’t ‘buy into’ fantasies but do not dispute
irrational beliefs;
(3) Be
aware of the possible intimidatory effects of your presence (eg – take your hat
off) and do not invade the person’s personal space;
(4) Do
not make sudden movements and reassure the person that the situation can be
resolved peacefully;
(5) Use calm speech and convey a willingness to listen
and help;
(6) Be
acutely aware of your own body language and vary your eye contact – some
mentally disturbed persons will be highly threatened by prolonged direct eye
contact;
(7) Be
aware that the person may be frightened and abuse, threats or tough tactics on
your part may only serve to cause the person to act aggressively;
(8) If
possible remove any crowd or excitement away from the person and offer a cup of
coffee or cigarette – reassure the person that you mean no harm;
(9) Use simple direct communication;
(10) Avoid leaving the person alone;
(11) Don’t
take abusive behaviour personally – such behaviour may stem from the disorder
not from the individual;
(12) If
physical harm is threatened set firm limits on the person’s behaviour – tell
him or her that you will keep them safe but that you will not allow them to
hurt themselves or others;
(13) Be
aware that even if the person does not acknowledge what you are saying there is
a good likelihood that they are listening very carefully;
(14) Be
honest – don’t promise what you can’t deliver and do not try to trick or
deceive the person (this can create a lack of trust);
(15) If
possible, convey respect and concern for the person by offering them choices,
even if minor. (eg – such as “which chair do you wish to sit on?”);
(16) One
person should attempt to establish a rapport with the individual and that
person should be the primary communicator.
631.
General evidence about AFP training arrangements was given by Federal
Agent Rath and DSC Carnall. Evidence was also given by Senior Constables
Pitkethly and Willis about the training they personally had received.
Operational Safety Training in the Australian Federal Police
... is based upon providing the member with a skills set to manage any
potential conflict situation – from the lowest to the most critical level.
These skills range from communications and negotiation through to the application
of lethal force. These skills are instructed at all levels of operational
policing and validated annually.
633.
He noted that the principles articulated in CO3, the Ten Safety
Principles, and the Safety Principles Model “are disseminated
throughout the AFP and are the subject of constant reinforcement, instruction
and assessment”.
634.
DSC Carnall said that all AFP officers receive training in dealing with
the mentally ill, which covers such issues as depression, schizophrenia, and
psychosis, and the need in dealing with sufferers of mental illness to exercise
caution, be sensitive, and seek professional advice where necessary,
recognising that such people may be unpredictable and difficult. Police
officers are also taught about the effects of drugs and alcohol and how to
distinguish between those effects and the effects of mental illness.
635.
Constable Paul Bailey gave evidence that the annual three-day refresher
courses would normally include sessions on dealing with mentally disturbed or
mentally ill people.
Training—Senior
Constables Pitkethly and Willis
636.
Senior Constables Pitkethly and Willis were both experienced police
officers. SC Pitkethly had joined the AFP in 1986, 15 years before
Jonathan’s shooting, and SC Willis in 1989, 12 years before the shooting. Each
of them had received initial training over some weeks and had participated in
annual refresher courses. Each of them agreed that he had received training in
how to deal with people with mental health problems, including during refresher
courses, and also had some practical experience in dealing with such people. Before
the shooting, SC Pitkethly had completed his most recent Use of Force
re-certification in October 2001, and SC Willis in June 2001.
637.
DSC Carnall said that:
(a)
SC Pitkethly had been a member of OSG from about 1995 until 2000, and
had undertaken the basic training.
(b)
SC Pitkethly had been trained (as an OSG member) in assessing the risk
from different implements used as weapons.
(c)
SC Pitkethly would have been well aware of the availability of the
technique used by OSG members to contain and disarm offenders. However, people
who had not maintained relevant training were taken off the operational OSG
list because “one just couldn’t afford to put an officer in that position if he
or she wasn’t up to the skill level”, so SC Pitkethly, having ceased to be a
member of OSG in 2000, would not himself have been able to be part of a team
using the technique.
(d)
In December 2001 SC Pitkethly was a member of SOT, the team that under
AFP policy would have been deployed to disarm an armed offender.
638.
Before dealing with two specific areas of knowledge that were relevant
to the actions of the two police officers, it is necessary to mention a more
general issue that emerged during the trial about the nature and extent of SC
Pitkethly’s familiarity with relevant AFP documents, with possible significance
for his expertise in dealing with people with mental health problems.
641.
I do not know whether the treatment of the Conflict De-escalation
Model or the Safety Principles Circular Model by any party was
careless or tactical, but in the circumstances I note that I have not regarded
SC Pitkethly’s credibility as having been affected by his repeated denials of
having seen material that counsel implied should have been available to him,
and his repeated insistence that he relied on other material that he believed
had a different effect but that did not seem to be available to counsel.
SC Pitkethly’s responses to questioning about particular documents may
have indicated some rigidity in his thinking, but once the status of the two
documents was clarified, his responses clearly did not justify an assessment of
him as evasive.
645.
As to the materials dealing with mentally disturbed people, SC Pitkethly
agreed that Module 106 had possibly been used in re-training exercises that he
had taken part in between 1997 and 2001, but he denied having seen Module 106
as such. He admitted to knowledge of some of the material in it, and conceded
that before December 2001 he had received “some training” (which he
distinguished from “quite a bit of training” or “extensive” training) in the
skills for managing persons who had a mental illness or disorder and who were
potentially violent.
646.
Not having seen the training materials may be unsurprising, but SC Pitkethly
also firmly denied having seen the Participant Handout attached to
Module 106.
647.
He agreed, however, that he had received training generally in accord
with two aspects of the Participant Handout, being:
(a) the requirement that
in dealing with persons suffering mental disorders police should exercise
caution, be sensitive and seek professional advice (although he claimed to be
unsure about what seeking professional advice meant in that context); and
(b) the requirement to
assess the situation, including the location, others present, proximity of
weapons, escape routes, etc, before making attempts at communication with
mentally ill or disordered persons.
648.
SC Pitkethly said that he knew that religious delusions are a common
symptom of serious mental disorders, that people suffering mental illness could
be volatile, unpredictable and difficult to deal with, and that some mental
disorders are more serious than others.
649.
SC Pitkethly would not agree that he had ever been given training about “Face-to-Face
Communications” in the terms or using the concepts shown in the Module 106
materials, or about the key points in effective communication set out in Module
106 and the Participant Handout (at [629] above). He did, however,
agree that he had been “subject to a number of different communications
packages that have been ... delivered to police over the years” and that, while
he did not remember this particular package, “the points sound roughly in the
right area”.
650.
Federal Agent Rath described the Ten Safety Principles and the Safety
Principles Model as “intertwined and mutually supportive”. Given SC
Pitkethly’s evidence, and his comment that the two documents, despite similar
titles, have rather different specific content, “confusingly overlapping” might
be an equally valid description; that potential for confusion might explain how
SC Pitkethly, over several years and despite the “constant assessment”
mentioned by Federal Agent Rath, had apparently managed to remain ignorant of
the existence of the Ten Safety Principles and the ACT 10 Point Plan.
651.
The only written material about the appropriate circumstances or
procedures for the use of OC spray that was in evidence was contained in CO3,
Part 6 of which gives general orders about the circumstances in which and the
purposes for which chemical agents may be used (see [612] above). For
instance, OC spray may be used to arrest a suspect believed to pose a threat of
physical violence where arrest cannot be effected less forcefully (paragraph
6.1(1)(b)). The only material in evidence about the practical aspects of using
OC spray (such as how to use it, its likely effects and any cases in which its
use might be ineffective or dangerous) was undated, but related to proposals
for trials, and other matters suggesting that in the 1990s the AFP was still in
the early stages of developing an approach that was capable of being
documented.
652.
Perhaps because of the absence of any documented information or
procedures, the “knowledge” described by the several police officers was not
entirely consistent. Thus, for instance, the content of the training that Federal
Agent Rath said that officers would have received did not accord with the
training that Senior Constables Pitkethly and Willis said they had received.
(a) that
OC spray affected 80% of people 80% of the time, and that its effect might be
affected by the subject’s physiological or psychological make-up;
(b) that
OC spray might not incapacitate subjects suffering mental illness or
dysfunction (but not that such subjects were immune to OC spray);
(c) that
OC spray might not incapacitate subjects who are highly intoxicated by drugs or
alcohol, mentally unstable, emotionally charged and motivated, or determined;
(d) that
it is difficult to predict who will be affected by OC spray and who won’t;
(e) that
if OC spray is ineffective, other (not necessarily higher) levels of force may
need to be used (he said that even “open hands negotiation” has worked on
occasions after OC spray failed); and
(f) that
before December 2001, AFP officers were trained that the effective range for OC
spray is 3 to 4 metres, not 5 to 7 feet.
654.
SC Pitkethly was confident that he had been properly trained in the use
of OC spray, although he said that in 2001 he had not been trained in the
effects of OC spray on mentally ill people and could not recall ever having
heard that OC spray might not work on people who were mentally disturbed. He
did know that OC spray didn’t work on some people and had heard it might be
less effective on intoxicated people, but when he used it on Jonathan (which he
did from a distance of about 5 metres) he expected it to work. He said,
however, that he didn’t think he had ever used OC spray in an operational context
before that day.
655.
SC Willis said that he knew that OC spray worked on 80% of people 80% of
the time, and in particular that people who were very task-focussed could be
oblivious to the effects of the spray. However, his knowledge about people who
were very task-focussed had not alerted him to the particular issues arising
from the use of OC spray on people in the midst of a mental health crisis.
656.
Like SC Pitkethly, SC Willis had never used OC spray operationally
before the Crowley incident. SC Willis believed that the effective range for
OC spray was about 5 to 7 feet. Given the good weather on the day of the
shooting, he believed the effective range of his OC spray would have been about
2 metres (6 or 7 feet). This may suggest he had absorbed a different
message about OC spray distances from that understood by Federal Agent Rath, or
it may have reflected the fact that, being in plain clothes, he was carrying a “mini”
OC spray.
657.
No evidence was given of any attempt to supervise or enforce whatever
guidance about the use of OC spray, albeit undocumented, might have been
provided through the training mentioned by the various police officers.
658.
DSC Carnall gave evidence about the training provided to OSG members, as
follows:
(a)
The basic training for police officers who were part-time members of OSG
included a three-week full-time course and then at least six training days each
year. That training covered matters such as clear thinking and risk assessment
in stressful or difficult situations, including the concept of assessing and
re-assessing a high-risk situation; DSC Carnall noted that this is a standard
approach for all police officers but that OSG members received extra training
in that area, and also in communication and negotiation skills.
(b)
OSG members got extra training in use-of-force techniques and commonly
used a “cordon and contain” methodology. They had been trained since 1996 in a
technique devised by DSC Carnall for containing and disarming people.
They were also trained in assessing the risk from the use of different
implements as weapons.
659.
The evidence given by Federal Agent Rath and Senior Constables Pitkethly
and Willis, and SC Pitkethly’s admitted familiarity with the Safety
Principles Model, are sufficient for me to find that as at December
2001, AFP officers in general, and Senior Constables Pitkethly and Willis in
particular, had received regular training in the important principles relating
to the use of force in the course of general duties policing.
660.
I consider it more likely than not that SC Pitkethly had received the Participant
Handout at least once; given that he had apparently managed over many years
to avoid noticing the Ten Safety Principles in either of the forms in
which those principles were promulgated in the ACT, it seems entirely possible
that he received the Participant Handout on at least one occasion before
December 2001 without paying any attention to it. However, even if he had not
in fact received that document, I find, having regard to the existence
of the Module 106 document, the reference in the Safety Principles Model
to “Sensitivity” and “Adoption of communication strategies for dealing with the
mentally ill”, SC Pitkethly’s concession that he had received “some” training,
and his admitted familiarity with basic concepts of dealing with the mentally
ill, that SC Pitkethly had undergone training in dealing with mentally-ill
people.
661.
Noting the evidence of Senior Constables Pitkethly and Willis, and the
evidence of Federal Agent Rath, I find that as at December 2001, both
Senior Constables Pitkethly and Willis had both received some training in the
use of OC spray including:
(a) that it could not be
relied on to affect everyone or to affect anyone on every occasion; and
(b) that a person’s state
of mind including intoxication, extreme focus or mental disturbance could
affect the person’s reaction to OC spray.
In deciding whether there has been a breach of the duty of
care the tribunal of fact must first ask itself whether a reasonable man in the
defendant’s position would have foreseen that his conduct involved a risk of
injury to the plaintiff or to a class of persons including the plaintiff. If
the answer be in the affirmative, it is then for the tribunal of fact to
determine what a reasonable man would do by way of response to the risk. The
perception of the reasonable man’s response calls for a consideration of the
magnitude of the risk and the degree of the probability of its occurrence,
along with the expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the defendant may
have. It is only when these matters are balanced out that the tribunal of fact
can confidently assert what is the standard of response to be ascribed to the
reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a
risk of injury which is remote in the sense that it is extremely unlikely to
occur may nevertheless constitute a foreseeable risk. A risk which is not
far-fetched or fanciful is real and therefore foreseeable. But, as we have
seen, the existence of a foreseeable risk of injury does not in itself dispose
of the question of breach of duty. The magnitude of the risk and its degree of
probability remain to be considered with other relevant factors.
because the inquiry is prospective, it would be wrong to
focus exclusively on the particular way in which the accident that has happened
came about. In an action in which a plaintiff claims damages for personal
injury it is inevitable that much attention will be directed to investigating
how the plaintiff came to be injured. The results of those investigations may
be of particular importance in considering questions of contributory
negligence. But the apparent precision of investigations into what happened to
the particular plaintiff must not be permitted to obscure the nature of the
questions that are presented in connection with the inquiry into breach of
duty. In particular, the examination of the causes of an accident that has
happened cannot be equated with the examination that is to be undertaken when
asking whether there was a breach of a duty of care which was a cause of the
plaintiff’s injuries. The inquiry into the causes of an accident is wholly
retrospective. It seeks to identify what happened and why. The inquiry into
breach, although made after the accident, must attempt to answer what response
a reasonable person, confronted with a foreseeable risk of injury, would have
made to that risk. And one of the possible answers to that inquiry must be “nothing”.
664.
The reminder to focus not just on how a particular event happened but on
“what response a reasonable person, confronted with a foreseeable risk of
injury, would have made to that risk” must be heeded. However, the fact that
one of the possible responses might be “nothing” has no particular significance
to the extent that the alleged negligence is not a failure to do something but
a positive action (and where “nothing” might in the short term have been a
preferable response).
665.
The apprehension by police of a mentally-disturbed person is undoubtedly
a dangerous activity for all concerned. During the trial, reference was made
to several previous police shootings of mentally disturbed people, and a
variety of information was in evidence attached to such things as training
documents and experts’ reports.
since Project Beacon, the proportion of victims who have had
a history of mental disorder has increased from 31 per cent to 44 per cent.
668.
I am satisfied that on the day of the shooting, dangerous consequences
of any attempted apprehension of a mentally-disturbed person were foreseeable
to the police officers involved in the search for Jonathan. When Senior
Constables Pitkethly and Willis left the Chapman shops and headed to Doyle
Terrace, it was entirely foreseeable, not that SC Pitkethly would find himself
obliged to shoot Jonathan, leaving him with catastrophic injuries, but more
generally that a confrontational encounter in a public street between two
police officers and a large, mentally-disturbed man with a weapon had
considerable scope for ending badly. The possibility that Jonathan would
finish up wounded or dead as a result of a confrontation was not fanciful—both
police officers would have been well aware of other cases in which police had
shot people, often mentally-disturbed people, who appeared to pose a threat to
them. Nor was it fanciful, if Jonathan was as dangerous as the police officers
claim to have believed, that either of them would finish up wounded or dead.
Finally, the likelihood that one or more members of the public were already in
the vicinity (significant in the police explanation for their hurried actions),
or would unwittingly stray into the vicinity, meant that the possibility of a
member of the public being caught up in the confrontation and finishing up
wounded or dead was also not fanciful.
669.
I am satisfied that a reasonable response to that foreseeable risk of
injury would have been, in general terms, to be very careful. That view is supported
by the various police documents already mentioned, with their explicit focus on
safety as the paramount consideration. More specific assessment of responses
is best done in relation to specific allegations of negligence.
670.
It can also safely be said that the magnitude of the risks outlined
above was great; the degree of probability may have been relatively low
(although no evidence was put before me of the relative numbers of mentally
disturbed people who are apprehended by police without incident) but that does
not seem to matter if the “expense, difficulty and inconvenience of taking
alleviating action” appears to be low or non-existent and there are no
immediately conflicting obligations on the police.
672.
Noting counsel’s disclaimer of reliance on anything but “operational
negligence on the day”, I shall consider this claim of negligence by the AFP
solely in terms of how the AFP dealt with ACTMH in relation to the person they
were concerned about on 11 December 2001. I have found:
(a)
at [165] and [197] above, that the AFP only made one call to ACTMH
seeking information from them and that it was made at about 1.25 pm, being
about 80 minutes after the first reports of Jonathan’s “aberrant behaviour”
were received by Communications;
(b)
at [206] and [218] above, that the call did not include all the details
of the person’s physical description that were by then available to the AFP;
and
(c)
at [218] above, that the call did not seek from ACTMH any general
advice, agreement to help in an apprehension, or agreement to check further in
ACTMH’s records, and did not offer to check for further information in AFP
records.
673.
If I had found that the police owed a broader duty of care, for
instance, to any person whose aberrant behaviour had made them an object of
police interest, then the AFP’s underwhelming approach to seeking information
and advice from ACTMH might well have breached that duty. However, since my
finding that a duty of care was owed relies on the police officers having
assumed a duty of care when they took control of the situation in Doyle
Terrace, that duty could not have been breached by earlier failures by other
AFP members or employees to deal properly with ACTMH in relation to the reports
of “aberrant behaviour”. This approach does not however exclude the possibility
that the actions of police in Doyle Terrace may have breached a duty of care
partly because they were undertaken with inadequate information where that
resulted from a failure to seek advice once Jonathan had been located in Doyle
Terrace.
674.
The plaintiff says that the AFP was negligent in failing to have
protocols and manuals about the circumstances for the use of OC spray, failing
to train AFP officers in such protocols and manuals, and failing to supervise
and enforce orders and protocols about the circumstances for the use of OC
spray. The plaintiff also says that the AFP (presumably by its officers Senior
Constables Pitkethly and Willis) was negligent in using OC spray on Jonathan
before determining whether the use of OC spray was appropriate.
675.
On the basis of counsel’s submissions about “operational negligence on
the day”, I express no views about AFP negligence in relation to the existence
of protocols and manuals, the provision of training, and supervision and
enforcement of policies, about the use of OC spray. The use of OC spray
against Jonathan will be considered in the context of the events in Doyle
Terrace.
676.
The experts called in relation to policing matters are identified and
discussed at [61]-[72] above. As mentioned at [69] above, counsel for the
police urged me to rely on the views of “serving police officers”, but I have
found few if any irreconcilable differences of opinion between the views of Mr
Hazzard, Mr Jennings and Federal Agent Rath, so have not needed to identify a
basis on which to choose among their views.
677.
The plaintiff says that SC Pitkethly was negligent in failing to obtain advice
from ACTMH, and in leaving the rendezvous point at Chapman Shops without
instructions.
678.
I have found that one request for information was made to ACTMH on
behalf of the AFP. There is evidence from SC Pitkethly that while at the
rendezvous point he had been party to an attempt to get information from ACTMH
about the person of interest, “which came back negative”. There is no
suggestion that SC Pitkethly considered seeking ACTMH advice or help once he
had seen Jonathan but before he acted.
679.
Since I have found that the police did not owe Jonathan a duty of care
until Senior Constables Pitkethly and Willis took control of the situation in
Doyle Terrace, I cannot see that any failure to seek ACTMH advice before that,
as such, could be a breach of the duty of care, and I so find. If I am
wrong about that, I note that I would in any case have found that SC Pitkethly
was not negligent in failing to make a further inquiry of ACTMH before he left
to go to Doyle Terrace, noting that he had raised the possibility at Chapman
shops and had been told that ACTMH could not help, and despite the reference in
item 2.2 of the MoU (at [209] above) to police seeking ACTMH advice in
situations involving mentally dysfunctional people and physical danger. SC
Pitkethly’s failure, having located Jonathan in Doyle Terrace, to seek ACTMH
help or advice before trying to apprehend him is most appropriately considered
in the broader context of decisions made and actions taken in Doyle Terrace
after the duty of care had been assumed.
680.
As to whether SC Pitkethly breached a duty of care in leaving the
rendezvous point without instructions, I note:
(a)
first, that this particular of negligence was disclaimed in closing
submissions by counsel for the plaintiff, on the basis that Senior Constables
Pitkethly and Willis didn’t need detailed instructions because they were well
aware of how they should handle the incident if they did find Jonathan; and
(b)
secondly, that this action also took place before the two police
officers had assumed a duty of care by their actions in Doyle Terrace.
681.
In case I am wrong that no duty of care had at that stage been assumed,
I note that several of the policing and security experts expressed opinions
about whether SC Pitkethly behaved inappropriately in leaving the
rendezvous point at Chapman Shops (which I have already at [288] above declined
to find was a command post) without any instructions from any senior officer to
do so, or instructions about what to do if and when he found Jonathan.
682.
Mr Jennings, on the basis of his view that a command post had been
established, said that it was wrong for SC Pitkethly to leave the command post
without consulting either of the “commanders” (Sgt Morris and DSC Carnall) and
without an established action plan for when he found Jonathan, but he went on
to note his assumption that the quick departure had happened on the basis that
the team would reassemble “at the scene” to get their orders.
683.
Mr Hazzard said that he found it difficult to believe that SC Pitkethly
had left the rendezvous point without consulting the commanders about their
plans for handling the incident and without getting any specific instructions, but
he agreed that SC Pitkethly had not disobeyed any instruction in doing
so.
684.
Federal Agent Rath said that he would not criticise SC Pitkethly for
leaving the rendezvous point as he did, given the urgency of finding Jonathan.
685.
In the circumstances facing the police officers gathered at the Chapman
shops, and having regard to the actions of police officers other than Senior
Constables Pitkethly and Willis (in particular to the apparent lack of concern
from either Sgt Morris or DSC Carnall), and to the training and experience of
Senior Constables Pitkethly and Willis, I find that if Senior Constables
Pitkethly and Willis had already assumed a duty of care to Jonathan before they
left the Chapman shops, they did not breach that duty in leaving the rendezvous
point without having received any specific instructions from a commanding officer.
686.
The plaintiff says that SC Pitkethly was negligent in taking the police
car to “the scene” (presumably Doyle Terrace) “without proper assessment or
implementation of the protocol” and, in effect, in driving a marked police car
with flashing lights so as to bring it to a stop very close to Jonathan.
687.
There was no explanation or even identification of “the protocol”, and
there was no evidence that any of the police officers involved were aware of
Jonathan’s attitude to the police. Even if I were satisfied that the police
assumption of a duty of care had occurred as the two police officers drove
along Doyle Terrace looking for Jonathan, I would not see any basis for finding
that the use of a marked police car was negligent.
688.
In final submissions, counsel for the plaintiff disclaimed the plaintiff’s
particulars of negligence in relation to stopping the car too close to Jonathan
and in relation to the use of flashing lights, although he noted the possible
impact of these actions on Jonathan’s state of mind and in turn on the wisdom
of the police officers’ actions in immediately getting out of the car. If
these particulars of negligence had remained relevant, I would in any case have
found, given my findings about his driving of the police car (at [351] and [354]
above), that SC Pitkethly was not negligent in where he brought the police
car to a stop, or in having the flashing lights on the car operating at the
time. Such a finding would have been supported by Federal Agent Rath’s opinion
that SC Pitkethly did not depart from any applicable AFP standards in stopping
the police car so close to Jonathan, and also by the explanation for the use of
the car’s flashing lights given by SC Pitkethly and also mentioned by Federal
Agent Rath at [618] above.
689.
Accordingly, I find that there were no breaches of duty of
care specifically relating to the use of the police car.
(a)
getting out of the car without a proper assessment of the situation or a
proper risk assessment relating to injury;
(b)
getting out of the car too quickly;
(c)
addressing Jonathan loudly and aggressively and by producing and using
OC spray;
(d)
approaching Jonathan without ensuring that other police resources were
present and ready to assist;
(e)
confronting Jonathan when there was no immediate need to do so;
(f)
acting to physically restrain Jonathan without assessing the most
effective manner of proceeding, and where no-one was at risk of injury;
(g)
failing to follow Police Safety Guidelines once he saw Jonathan;
(h)
failing to withdraw where additional officers were present and
immediately available, and failing to retreat from Jonathan where no-one was at
risk;
(i)
failing to negotiate with Jonathan where no member of the public was at
risk;
(j)
failing to comply with any AFP plan or instructions for locating and
containing Jonathan;
(k)
failing to use all available police resources to locate, cordon, contain
and negotiate with Jonathan before confronting him.
(a)
in relation to the AFP, negligence constituted by the failures of SC
Willis and Constable Bailey to come to SC Pitkethly’s aid when he was being
attacked; and
(b)
in relation to SC Pitkethly, negligence constituted by:
(i) failing to
negotiate with Jonathan, and failing to comply with Sgt Morris’s advice or
direction to approach Jonathan “softly softly” and to negotiate; and
(ii) failing to call for help
from SC Willis or Constable Bailey.
693.
As noted at [447] above, I shall in this judgment address those
additional particulars as far as possible, but not the claims in relation to
which they are made.
694.
In summary, the plaintiff says that Senior Constables Pitkethly and
Willis should not have got out of the police car when they did, and they should
not have acted as they did when they did get out. Specifically they should not
have got out of the car without properly assessing the situation generally, the
best way to approach Jonathan, and the risks of either getting out or not
getting of the car. Because Jonathan was recognisably mentally disturbed,
because extra police resources were available and close by, and because no one
was at immediate risk of injury, there was no need for the two police officers
to confront Jonathan and no urgent need to try to physically restrain him
rather than awaiting the arrival of the other police resources. This in turn
meant that there was no need for the two police officers to get out of the car
immediately rather than withdrawing some distance to await the arrival of the
other police, and no need to begin by addressing Jonathan loudly and
aggressively, and no need to use OC spray on him, rather than negotiating with
him. Furthermore, the plaintiff says, the approach taken by the two police
officers did not comply with applicable police safety guidelines and
instructions. It is implicit in these claims that the plaintiff also asserts
that there was no reason, other than those that are rejected, for Senior
Constables Pitkethly and Willis to get out of the police car when they did.
695.
The police response is, in general terms, that it was Jonathan’s fault
that events in Doyle Terrace developed, and ended, as they did. The problem,
the police say, was not that the two police officers acted negligently when
they found Jonathan but that Jonathan reacted to their actions in a way that
was not only inappropriate but also, more importantly, in a way that was not
predictable, and that there was nothing the police officers could properly have
done to produce a less dramatic outcome.
696.
SC Willis, supported by some of the expert witnesses, said that it was
Jonathan’s actions that changed the course of events. If Jonathan had put down
his weapon, SC Willis said, he and SC Pitkethly might still have waited until
the OSG arrived before trying to arrest him. As already noted, this theme, that
it was all Jonathan’s fault, underlies much of the evidence of the two police
officers, and also the expert evidence of Federal Agent Rath and Mr Schuberg.
697.
When the police argument is summarised in this way, it appears to be
fairly flimsy, given that the person being blamed for the outcome of the
confrontation is a person who was then in the grip of a psychotic episode, and
that the existence of that mental disturbance was, in general terms, very clear
to the police officers involved before they even saw him. However, it is
necessary to examine the elements of the police argument in some detail to see
whether it is really so easily dismissed and, in essence, whether any aspect of
the police contribution to the confrontation breached a police duty of care to
Jonathan.
698.
The criticisms of the actions of the two police officers in Doyle
Terrace are the core of the plaintiff’s case in negligence. To determine
whether Senior Constables Pitkethly and Willis were negligent in how they
reacted when they located Jonathan in Doyle Terrace, it is necessary to
consider various elements of these criticisms, as follows:
(a)
the adequacy of any planning and risk assessments done by the two police
officers, including in relation to the significance of Jonathan’s mental state;
(b)
the significance of the imminent arrival of other police officers, and
whether withdrawal from Jonathan’s immediate presence was an option;
(c)
the reasons of the two police officers for getting out of the car when
they did;
(d)
the actions of the two police officers when they did get out of the car,
and whether there was any negotiation with Jonathan;
(e)
the use of OC spray;
(f)
whether the two police officers breached applicable police safety
guidelines or instructions, or acted otherwise than in accordance with their
training.
700.
SC Pitkethly had been involved in the response to reports of Jonathan’s
aberrant behaviour from an early stage, and he had shown commendable initiative
in suggesting that officers attending the OSG training day might be able to be
brought in to help with the search. At that point, SC Pitkethly saw himself as
responding to, and investigating, an incident of a person “running around
committing offences”. He saw Jonathan as a suspect or offender in relation to
a number of offences, including jumping in front of traffic, assaulting a
postman and trying to gain entry to a house (Mrs Healy’s house in Lincoln
Close).
701.
SC Pitkethly thought that Jonathan would need to be dealt with as a
normal suspect or offender, possibly by being arrested, although this would
depend on the circumstances at the time. Each time Jonathan reappeared, SC
Pitkethly believed, a new offence was committed; he thought it was possible
that Jonathan would assault someone else or break into premises or take a
hostage. He had developed a belief that Jonathan was potentially dangerous, as
shown in his comments to Communications after his visit to Mrs Healy that:
There’s obviously something quite wrong with him he’s gonna
cause a lot of problems around the area. ... perhaps you could ... ring
Sergeant CORRIGAN out at Weston, they’ve got an OSG day on they might be able
to send a few members up here see if we can find this bloke before he causes
some real trouble.
702.
SC Pitkethly’s belief that Jonathan was likely to cause “real trouble”
may have influenced his subsequent actions.
703.
SC Willis was also concerned about the risk that Jonathan would assault
someone else, suggesting that even during the day there could have been “mums
at home or retirees at home”; he considered that finding Jonathan was “pretty
urgent”.
705.
I have found at [436] above that at the time when Senior Constables
Pitkethly and Willis found Jonathan in Doyle Terrace, they had neither a joint
plan nor any individual, even unspoken, plans for how to deal with him.
706.
There is also the question of risk assessments. In evidence, SC
Pitkethly did not manage to describe anything that could properly be described
as a “risk assessment” in the sense of an assessment of the likelihood and
consequences of the various risks of the situation, and the efficacy of
possible responses to those risks. He responded to questions about his “assessment”
of the circumstances as if “assessed” meant “knew”, “thought” or “believed”, as
in the following evidence:
[D]id you make any assessment of the situation?---I just knew
that that particular gentleman was there with a ... kendo sword or a
sheathed sword or something.
Yes. ...?---And ... at first he appeared to be heading off
somewhere and then ... perhaps he heard the car or something, but he turned
around.
Right. So that’s what you saw and what did you think was a
necessary response by you as a police officer?---Needed to get some sort of
communication going with him - - -
Yes?---and that would provide some sort of containment by
communicating with him, get him busy talking to us.
Right. In your assessment of the situation, what
circumstances either in the history as you knew it of his behaviour or the
environment in which you were coming to a stop, did you take into
account?---Well, mainly that he might disappear again. ... and he was in fact
heading away at the time we were driving down the road, so we needed to get
some communication with him ... and therefore contain his actions so he didn’t
take off again and disappear into the bushes or whatever.
707.
Later, SC Pitkethly explained:
How did you assess the risk, if I can put it that way, that
this gentleman posed given the information that you’d been provided earlier and
given what you saw of him as you approached him?---Well, there’s always an
element of risk when you’re dealing with this sort of thing, but it - the
assessment I believe I made at the time was that there was still room for
communication and containment there.
And at the worst end of the risk, if I can put it that way,
what were the possibilities?‑‑‑There was a possibility he was
dangerous. (T908).
708.
In cross-examination he said that he and SC Willis “assessed the
risk as it came”, and in re-examination mentioned the need to consider both
public safety and the safety of the person of interest.
709.
SC Pitkethly might also have been alluding to part of a risk-assessment
process when he said that initially he had felt that, because of his training,
experience and equipment, he had a reasonable chance of controlling the
situation. Only when he saw that the OC spray had no effect on Jonathan did he
feel that things were out of control and he started to worry. This confirms the
apparent absence of any thought about the role of OC spray in dealing with
Jonathan that is mentioned at [720] below.
710.
SC Pitkethly also said that if he had assessed Jonathan as lethally
dangerous, he might not have got out of the car, depending on what Jonathan was
doing, but would have waited for other police, but he would not agree that it
was extremely risky to get close to an agitated man with a large kendo stick
who thought he was Jesus Christ and who was incapable of rational conversation.
He conceded it was difficult to communicate in such a situation, but maintained
that it was not impossible.
711.
That is, although SC Pitkethly spoke about the constant process of
assessing and re-assessing risk that was required by the Safety Principles
Circular Model, there was no evidence that he had considered the risks
posed by Jonathan and the risks arising from the various options for dealing
with him, or, importantly, that he had attempted to compare or balance those
risks (for instance, by weighing up the risk that Jonathan would try to escape,
the risk that the police would not be able to prevent an escape attempt, the
risks generated by a successful escape, the risks of staying in the car
watching Jonathan until other police officers arrived, and the risks of getting
out of the car to try to contain Jonathan before other police officers arrived,
including what SC Pitkethly conceded was the ever-present risk that a gun would
be used by police).
Did you consider staying in the police car and waiting for
more backup to arrive or waiting for backup to arrive?
I – I don’t know. I – it just seemed that we pulled up and
we got out of – we both got out instantly out of the car to negotiate with him,
so um I don’t recall if I did or not. I – I probably thought about it but you
– it’s just one of those things. You pull up and next – you know, you’re both
out of the car, so it ---
Would you have considered ---
[H]indsight’s a marvellous thing. I s’pose in hindsight you
sit in the car and – and reverse back but it just didn’t work out that way. I
mean – I think he caught us short by – as we pulled in being so close. The
other thing – we just sort of both [got] out of the car and then we were talkin’
to him – tryin’ to talk to him, so that’s how – it was really comin’ very
quickly then. It wasn’t like we just leapt out to attack him or somethin’. We
just both got out.
713.
SC Willis gave indirect evidence of a risk assessment when he said that
he believed he would be at risk if he got out of the car, but did not consider
suggesting a retreat to SC Pitkethly because “When you sign on to be a
policeman you know there are times that you’re going to put yourself in harm’s
way”. SC Willis believed that they didn’t have a choice because they “had to
stop this man from hurting anyone else” (a belief clearly influenced by
hindsight, because at that stage the only person who had been hurt was Allan
Richter, and he had not reported his encounter with Jonathan to anyone except
possibly his son).
717.
SC Willis said that although he thought Jonathan was totally irrational,
he and SC Pitkethly had tried to negotiate, including by getting close and
trying to calm Jonathan down “because that’s our duty”, and they were obliged
to try negotiation before using force. This was despite the fact that when SC
Willis first saw Jonathan in Doyle Terrace, he believed he saw “hatred” in
Jonathan’s eyes, and was scared by Jonathan’s body language.
these things need to be done in stages and without obviously
deploying unnecessary precious resources, and the most urgent issue here for
the police was to locate the person. ... knowledge as to who he was ... would
no doubt have assisted that by providing details of family members and where he
lived if he was a known patient ... at that stage, of course, [the police] had
a belief that he had a mental disorder, obviously based upon ... the reports of
his behaviour, but up until then they had no way of really ... assessing the
extent of that problem ...
In other circumstances it may be that the police would need
to call in [ACTMH] immediately, but of course there’d be no utility in calling
them in ... until they knew where the man was ... they needed to find out that
matter first, and that’s why they made this enquiry about whether they knew of
him.
719.
Given that the police officers were clearly aware that the man they were
seeking was likely to be mentally disturbed, counsel’s explanation only makes
sense if it was understood within the AFP that locating the man was a discrete
part of the operation, and that the apprehension stage would not be pursued
without further consideration. The problem for the police is that this does
not appear to have been understood by Senior Constables Pitkethly and Willis,
and nor is it consistent with counsel’s other submissions, or some of the
police evidence, to the effect that Jonathan was clearly a serious danger to
the public and that as soon as he was located he needed to be apprehended as a
matter of urgency. The evidence suggests that seeking advice from ACTMH about
Jonathan’s apprehension was not considered at all after he had been located by
the two police officers. It is true that ACTMH had not so far been helpful in
identifying the person being sought by police, but that did not mean that they
did not have general expertise to contribute in relation to the best way of
dealing with an unidentified person engaging in the relevant kind of aberrant
behaviour.
721.
Some of the expert witnesses expressed views about the planning and risk
assessment undertaken by the two police officers in relation to how they would
deal with Jonathan.
722.
Mr Schuberg made the uncontroversial comment that in the period between
when police gathered at the Chapman shops and when the Communications call
about Jonathan’s location was broadcast, there was no time to prepare any sort
of detailed operational plan. He also made the much more controversial comment
that after the broadcast, no time could have been spared for planning because
of the threat posed by Jonathan, saying that with their adrenalin “running high”,
given their duty not to endanger anyone’s life, and with limited time, it would
have been physically and mentally impossible for the two police officers to
plan. This comment begs the question in several respects.
723.
First, there was no evidence about the adrenalin levels of the two
police officers, and Mr Schuberg did not explain why the adrenalin should have
been running particularly high. It does not seem to me that, by the time
police gathered at the Chapman shops, there was anything about the search for
Jonathan that should have generated any particular stress or nervous anticipation
by comparison with many other tasks, routinely conducted by police, which have
the potential to turn dangerous without warning; as well, some of the comments
made by Senior Constables Pitkethly and Willis convey the distinct impression
that they were not particularly concerned about their ability to deal with
Jonathan when they did find him. In any case, even if the two police officers
did have elevated levels of adrenalin, there is no basis on which I could find
that this would have seriously impaired their capacity for on-the-spot or
emergency planning and risk assessment. If anything, it might have enhanced
it.
724.
Secondly, the limited time referred to by Mr Schuberg was the 42 seconds
between the “got him now” report to Communications and Jonathan’s shooting.
Again, Mr Schuberg was begging the question. The 42 seconds was the actual
elapsed time; this does not mean it was the total available time. In fact,
there was no requirement to deal with Jonathan by a particular time, and there
was in no sense a deadline, or a 42-second “window”, in which the police
officers needed to act.
725.
Thirdly, Mr Schuberg described the presumptive planning exercise so as
to emphasise its lack of feasibility; what he noted (probably correctly) would
have been impossible was “to sit down and consider every possible scenario, run
through each of them with the Commissioner’s Orders and other guidelines in
mind, and choose the best option”. However, there is no basis for accepting
that this was the only kind of planning that was available to the two police
officers before they got out of the car, although Mr Schuberg’s comment
that the officers “could not have just sat in the car doing nothing” suggested
that he did not recognise any other form of planning that they might have
engaged in, such as deciding who would take what role in the communication and
negotiation and at least what they would do if Jonathan either ran away or
attacked one of them.
726.
Federal Agent Rath on the other hand agreed that planning was critical,
but said that the police planning process had begun very early, when SC
Pitkethly first heard the reports about Jonathan’s activities. At the time the
two police officers left the rendezvous point, Federal Agent Rath believed,
they would have planned only to find Jonathan and wait for other police to
arrive. Federal Agent Rath was not clear on what caused that plan to change,
but it seems to have related to the many “unknowns” in the situation. Federal
Agent Rath agreed that a consideration in the assessment and re-assessment
process would be whether police presence, or very close police presence, might
exacerbate a situation involving a mentally disturbed offender.
727.
I do not interpret Mr Schuberg to suggest that a plan would have
been undesirable, only that there was no time for such activity given the
urgent need to find Jonathan. Federal Agent Rath said that there were plans,
but none of them seem to have been very specific. It may be true that there
was no time for leisurely, considered, consultative or large-scale planning of
the operation before some officers set eyes on Jonathan and could monitor his
location and his activities. This does not mean that no planning at all could
or should have been done before that (for instance by Senior Constables
Pitkethly and Willis as they travelled to Doyle Terrace), and it does not mean
that no planning at all could or should have been done before the two police
officers moved beyond observing Jonathan to trying to apprehend him.
728.
Expert opinions were also expressed about the conclusions that should
have emerged from any effective planning or risk assessment.
729.
As to what the two police officers should have done with their belief
that the person they were seeking was mentally disturbed and their knowledge of
his behaviour that morning, Mr Jennings said that SC Pitkethly had enough
information to know that Jonathan would be unpredictable and possibly violent,
and he should not have responded so as to provoke a violent confrontation.
730.
In his written report Mr Schuberg said that the two police officers “could
not in all fairness have predicted Crowley’s immediate and aggressive reaction”.
In cross-examination he conceded that police did have enough information to
predict “a violent reaction” from Jonathan, but even on the assumption that
they believed that Jonathan had attacked the postman again (and possibly even tried
to kill him), he was only prepared to concede that “perhaps” the police
officers should have predicted “a serious risk of violent attack”.
732.
Mr Schuberg agreed the two police officers probably had every basis to
feel that Jonathan might behave violently, but said that:
I can only believe that they got out of their vehicle in the
honest belief that they could contain this person. They didn’t expect – it is
reasonable to assume that they – they couldn’t have expected him to react in
the manner that he did.
733.
As already noted, Mr Schuberg’s approach is not to assess the actions of
the two police officers against any kind of objective standards but to assume
that they acted properly and on that basis to conclude that their specific
actions were reasonable and appropriate. For that reason his “expert” opinions
carry very little weight.
734.
Mr Hazzard said that a trained police officer could have considered
Jonathan a danger, including to police, because of his violent and irrational
behaviour. It is always impossible to predict whether a mentally ill person
will be easy to deal with or will become violent, and given SC Pitkethly’s
admitted knowledge of how he should deal with mentally ill or mentally
disordered people and his claim to have had experience with “mental patients”
in the past, Mr Hazzard said that he should have predicted that Jonathan would
be unpredictable and possibly violent, but that in fact SC Pitkethly did not
appear to have undertaken any risk assessment that took account of that violent
and irrational behaviour and of Jonathan’s possession of a weapon.
Mr Hazzard said that there was no evidence in the interview transcripts
that he had seen that SC Pitkethly discussed strategies with Sgt Morris or
anyone else; he noted that SC Pitkethly should have contacted his commander (by
radio if necessary) before taking any action to deal with Jonathan. Nor, in Mr
Hazzard’s view, was there any evidence that SC Pitkethly did even an
instantaneous risk assessment “on the run”. Instead, his actions in Doyle
Terrace turned what had begun as a planned response into an unplanned
confrontation.
735.
Mr Schuberg and Federal Agent Rath both sought to attribute to Jonathan
responsibility for the failure of the two police officers to make a correct
assessment of the risk of confronting him.
736.
Federal Agent Rath said that police knew that Jonathan “was not quite right”, but
that the two police officers had no reason to expect that Jonathan would
react to them in such an “uncompromising and ferocious manner”. He did agree that in the circumstances, given that Jonathan
was large, had a big kendo stick, was irrational and had shown a willingness to
use his kendo stick, a violent confrontation was one possible outcome of a
police engagement with him, but Federal Agent Rath maintained that
Jonathan’s irrationality also meant that “his response was largely unknown and
unpredictable”.
739.
Despite their belief that Jonathan was a danger to the public, and that
he was mentally disturbed, and their knowledge that he had some kind of weapon,
the two police officers seem to have had an unfortunately naive belief in their
capacity to deal with Jonathan, which was premised on the assumption,
apparently based on their previous experiences with mentally disturbed people
that he was likely to cooperate with them when they did find him. I have
already noted at [435] above their internally inconsistent views that it would
be difficult for two officers to cordon and contain a person in a public street
but that that was what they hoped to do when they found Jonathan. The two
officers also appear not to have recognised the inconsistency in their
assumptions that, on the one hand, they needed to deal urgently with a large,
mentally-disturbed man armed with what could have been an edged (and therefore
particularly dangerous) weapon, who had already assaulted and possibly threatened
to kill Mr Oakley and, on the other hand, that two police officers without even
a full complement of offensive and defensive accoutrements would be able to
apprehend such a person because communication was often quite effective and
police generally got on quite well with “mental patients”.
740.
There is no particular point in considering with the benefit of
hindsight how dangerous Jonathan really was, but it is legitimate to consider
the information available to the two police officers before they got out of
their car. The most worrying information (the attack on Allan Richter and,
perhaps, the ACTMH assessment from the previous evening) was not available to
them. The information that was available (set out at [756] below) would not
have supported a belief that Jonathan was either murderously inclined or armed
with a particularly dangerous weapon, although he was clearly not behaving “normally”.
The two officers seem to have persuaded themselves, against the evidence, that
Jonathan was both more dangerous and, curiously, more predictable and more
biddable, than he really was.
741.
It should have been clear to Senior Constables Pitkethly and Willis,
both experienced and well-trained officers, that Jonathan was seriously
mentally disturbed and that the only prediction they could legitimately make
about his response to them was that it would be unpredictable. There was no
basis for a prediction that he would be benign and cooperative. Despite this,
they seem to have acted on the assumption that Jonathan’s response to them
could be reliably predicted to be non-threatening and cooperative (irrespective
of how and in what circumstances he was approached by the officers).
Unfortunately, Jonathan did not behave in accordance with their entirely
unfounded prediction.
742.
SC Willis, in his comments quoted at [429] above, may be right that it
is effectively impossible to plan an operation such as the one they had
embarked on in any detail, because there are simply too many variables and too
many different ways in which the operation might develop. However, this does
not mean that there was no scope for considering basic principles, possible
scenarios and response options, or even for exchanging information about what
equipment the two officers had, and agreeing about who would initiate
communication and in what way.
743.
It is easy to imagine the kind of conversation that should have taken
place between the two officers, which might have started with comments about
how big Jonathan was, that they didn’t like the look of his stick, that he was
clearly mad and that they couldn’t guess how he might react to them, and then
moved on to what they should do in the short time before the expected
reinforcements arrived. At that point, the two relevant questions would have
been whether anyone needed rescuing and, if so, how that could be achieved – at
which point it should probably have become apparent that neither Andrew Oakley
nor anyone else was in immediate danger as long as the police officers could
keep Jonathan’s attention on themselves, but that if the police officers sought
to approach Jonathan and he resisted or attacked them, there would be very
little they could do to deal with him short of using a gun. No such
conversation took place.
745.
I find that it was neither necessary nor even possible for Senior
Constables Pitkethly and Willis to have made detailed plans or formal risk
assessments before they came upon Jonathan in Doyle Terrace, and that no such
planning or risk assessment was done.
746.
I further find that the two police officers could and should have
done quick informal planning and risk assessments before they got out of the
car to confront Jonathan, including considering the urgency of any
confrontation, the likely imminent arrival of reinforcements, the
unpredictability of Jonathan’s response to them, Jonathan’s size and his
weapon, and the difficulty – or probably the impossibility – of two officers
containing an unwilling suspect in a public street with many escape routes.
749.
I have at [321] above rejected the suggestions that when the police
officers came upon Jonathan in Doyle Terrace, there were members of the public
out in that part of the street other than Andrew Oakley and Allan Richter. I
have also found at [364] above that neither police officer was aware of the
presence of either Mr Oakley or Mr Richter in Doyle Terrace before he got out
of the police car .
750.
Allan Richter (and later on his son Leonard) were standing 70 or 80
metres back up the hill from where the police car stopped close to Jonathan.
Until the car approached, Jonathan had been walking away from that location.
Even when Jonathan turned around and approached the police car (which involved
him turning back towards where Allan Richter was standing), Mr Richter neither
demonstrated at the time, nor claimed in evidence, any concern that Jonathan
might return to threaten him again. Rather, he stayed where he was, making no
attempt even to send his son back to somewhere safer when Leonard joined him on
the street, and observed the events in the street. If he had been concerned,
his escape options included both his own van, which was parked close by, and
the house occupied by his customer, who was at home and had already given the
Richters access to the house.
751.
I find that when the police car stopped near Jonathan in Doyle
Terrace, Allan Richter was in no danger from Jonathan and, if observed, would
have given no sign that he thought himself in danger.
752.
The police argument, however, in effect relies on alleged danger to
Andrew Oakley, who was, as a result of his own decision that he had already passed
to Communications, as little as 25 metres away from Jonathan when the police
car arrived; references to Jonathan’s danger to members of the public in the
surrounding houses or more generally were thrown in for good measure, but no
serious arguments have been made in support of those claims.
754.
Mr Oakley, despite his earlier encounter with Jonathan in Lincoln Close,
had volunteered to ride his motorbike up into the reserve behind Doyle Terrace
looking for Jonathan and, having come across Jonathan again, had chosen to ride
along in front of him, watching him in his rear-view mirror, intending to keep
him in sight until the police arrived. Like Mr Richter, his actions gave no
hint that he feared for his own safety, and despite his comments at [266]-[267]
above he conceded at trial that he had no reason to fear as he rode along Doyle
Terrace in front of Jonathan. It is true that after he saw the police car
arrive, Mr Oakley got off his bike and walked towards Jonathan, who had by then
turned away from Mr Oakley, but there is no evidence before me that getting
back on his motorbike in order to make an escape would have been particularly
time-consuming or difficult.
755.
Mr Oakley (like Mr Richter) had already discovered that Jonathan was
fairly easily conciliated; this no doubt contributed to his relatively relaxed
attitude to Jonathan’s possible next moves.
(a)
the earlier reports made by people who had encountered Jonathan in Perry
Drive and elsewhere in Chapman during the morning all recognised that he was
not functioning normally (with possible explanations including both psychiatric
problems and the use of illicit drugs) and generally expressed concern about
possible risks to others (eg children at the primary school), but rarely
suggested that the person making the report was at all fearful for his or her
own safety;
(b)
the reports from those who had had close encounters with Jonathan (in
particular Mr Oakley and Mrs Healy) indicated that he did not seem determined
on any particular course of action and that when he met resistance, he changed
course and moved on fairly readily;
(c)
Mr Oakley did not want to make a complaint of assault after his first
encounter with Jonathan, he was despite that encounter willing to engage in the
search for Jonathan in an area that he knew would be fairly inaccessible to
police, and he was then, having located Jonathan, willing to ride along the
road watching him at a distance of only 50 to 100 metres; and
(d)
it seemed increasingly likely that Jonathan had a wooden weapon rather
than anything more dangerous (Mr Oakley’s report as relayed by Communications
mentioned a timber sword, while Mrs Healy in a subsequent police interview
described it as a stick, saying “it wasn’t a very heavy stick”—this was not
specified in SC Pitkethly’s report of his conversation with Mrs Healy but I
have no reason to believe that she would have given him a dramatically
different description of the weapon if he had asked her).
761.
Richard Jennings, who had understood Mr Oakley to be about 50 metres
away from Jonathan, said that Mr Oakley was at some slight risk, but noted that
he could possibly have escaped Jonathan using his motorbike. Mr Jennings
conceded that locating Jonathan was urgent because of the risk that a member of
the public might be assaulted, and also that, when preparing his reports, he
had not been aware about the many “escape routes” from Doyle Terrace, being the
reserve above Doyle Terrace and the various walkways and streets running off
Doyle Terrace. Despite this, however, he said that he doubted that Jonathan
would have escaped completely because police officers could have pursued him,
whether on foot, in their car or using motorcycles.
762.
Mr Jennings said that Senior Constables Pitkethly and Willis alone could
not have cordoned and contained Jonathan, especially with only one baton
between them. Trying to do so, he said, “increased the risk of injuries to all
of the parties considerably”. They should not have got out of the car unless
someone was at that point in great danger of injury. Nor should they have got
out of the car more or less simultaneously, because, Mr Jennings said, such an
approach presents an image of confrontation, and could have been inflammatory.
763.
Federal Agent Rath also said that Mr Oakley needed protection; he
conceded at trial that his original view had been formed before he learned that
Mr Oakley was on a motorbike, but he noted that Mr Oakley had got off his
motorbike when the police arrived and maintained that the risk to Mr Oakley was
not minimal, and was still a risk that needed to be considered.
764.
I have already referred to Mr Schuberg’s tendency to engage in
question-begging reasoning, and his approach to the question whether the two
police officers should have got out of the car when they did provides a good
example of his approach, and of why his evidence is hard to take seriously as
expert evidence. In summary, he said that in getting out of the car when they
did, the police officers acted correctly, but this was the correct action
because it was what they did.
Would you say they shouldn’t have waited even five seconds
for the arrival of the OSG?---I’m not saying they should have waited, I think
what they did was the correct thing to do.
You say, don’t you, that what they did was the only possible
thing to
do?---Well, it was possible to do a number of things. What I’m saying is I
think they took the correct action at the time.
Are you saying it was the only correct action, as you see it,
at the
time?---Well, it’s the action they took.
Yes?---It’s the correct action to take.
Does that fact that it’s the action they took make it the
correct action?---I don’t know. It’s the action they took. As far as I’m
concerned it’s the correct action. They could not afford to take the chance
that Mr Crowley was going to run from that location and cause further
problems. They had to stop him, that’s why they got out of the vehicle. In my
view, they honestly believed that they could contain this person. That didn’t
happen.
765.
When the circularity of his
comments was drawn to Mr Schuberg’s attention, he produced other reasons why he
considered that Senior Constables Pitkethly and Willis had taken the correct
action when they got out of the car, but his initial responses gave the very
clear impression that he was not assessing the actions of the two police
officers by reference to objective criteria but defending those actions because
they were the actions that were taken.
766.
Mr Schuberg then said that the two police officers had no option but to
get out of the car, because of the immediate threat to Mr Oakley’s life. He
said “They had to take action and they had to ... take it immediately”. Mr
Schuberg argued that if they had stayed in the car, Jonathan could have turned
on Mr Oakley so as to put his life in immediate danger; this was presumably the
“immediate threat” to Mr Oakley’s life, but Mr Schuberg did not explain why
what had certainly been perceived by Mr Oakley as a minimal threat before
the police officers arrived should, by the arrival of those officers, have been
turned into an immediate threat to Mr Oakley’s life.
768.
In all there were 18 or 19 police officers assembled at the Chapman
shops before Constable Bailey left to search the reserve areas. SC Pitkethly
said that when he and SC Willis were leaving the rendezvous point, the other
police officers were also packing up and heading to their vehicles. He did not
specifically check whether other officers had followed him from the rendezvous
point, but he assumed they were a few seconds behind him and considered backing
off and waiting for them to arrive, but “still felt that it was appropriate to
try and contain the incident in some way ... just for the safety of the public”.
770.
The significance of the fact that Senior Constables Pitkethly and Willis
believed that up to 16 other officers were following them to Doyle Terrace was
disputed.
771.
One view was that in these circumstances, the two police officers should
have waited for the approaching reinforcements before confronting Jonathan.
This view was put by Mr Hazzard, who noted among other things the risk that the
person sought might attack police seeking to apprehend him. Mr Jennings
commented that SC Pitkethly had apparently been aware of the importance of
awaiting reinforcements initially, but had then disregarded the matter in
responding to the situation he found in Doyle Terrace.
772.
An alternative view, put by Federal Agent Rath, was that the imminent
arrival of the larger group of officers meant that extra resources were already
available and so in confronting Jonathan the two police officers were acting in
reliance on the availability of more police resources.
773.
It seems to me that the significance of the imminent arrival of police
reinforcements depended on the urgency of Senior Constables Pitkethly and
Willis apprehending Jonathan. If Jonathan had been attacking Andrew Oakley or
anyone else, then Federal Agent Rath’s view that it was appropriate to act
quickly in reliance on the imminent arrival of other police officers would have
carried considerable weight. However, I have already rejected the proposition
that anyone was being immediately threatened by Jonathan (at [767] above).
774.
There was also a third interpretation of the position, implied on behalf
of the police although not adopted by Federal Agent Rath, that the imminent approach
of eight OSG members was irrelevant because OSG should not have been involved
in the operation at all; the significance of this argument for a determination
whether the police breached any duty of care to Jonathan is not immediately
clear, but it does not seem to me to assist the position of the police, for
three main reasons.
775.
First, it was clear from the evidence of several witnesses including DSC
Carnall and Federal Agent Rath that OSG officers do not cease to be sworn
officers of the AFP (with all the powers and duties of such officers) during
the period that they are members of the OSG. Even if it had been inappropriate
for OSG members to respond to Jonathan in OSG teams or with OSG protective
clothing and equipment, I am satisfied that there was no obstacle to OSG
members who had come from a training session taking part in a general duties
policing operation of searching for Jonathan and apprehending him if feasible.
776.
Secondly, even if it had in fact been inappropriate for OSG members to
be involved in any way with the search and possible apprehension of the person
of interest, this was not Jonathan’s problem, and nor was it a basis for SC
Pitkethly to discount the imminent arrival of OSG members in deciding whether
he and SC Willis should confront Jonathan immediately. The proposal to involve
OSG had come from SC Pitkethly, had been authorised by DSC Carnall and had
been approved by Sgt Morris (if reluctantly in relation to their use of
protective clothing and equipment); a police argument that SC Pitkethly should
not, or need not, have waited for the OSG members to arrive before confronting
Jonathan, on the ground that OSG should not have been involved in the police
operation anyway, cannot be sustained.
777.
Finally, the eight OSG members were not the only source of support for
Senior Constables Pitkethly and Willis that was on the way to Doyle Terrace.
Ignoring the eight OSG members, and Constable Bailey who left the rendezvous
point early and before Jonathan’s new location was broadcast, there must still
have been at least another seven officers (including Sgt Morris) who were
apparently also on their way to Doyle Terrace closely following Senior
Constables Pitkethly and Willis.
779.
As to whether the two police officers could have simply sat in the car,
either where they had initially stopped or further up the hill, and observed
Jonathan until more police officers arrived, SC Pitkethly said that this would
not have been an option because then Jonathan might have departed again and
they would be back to the situation they had been in before. He pointed out
that there were various places that Jonathan could have disappeared to—up to
the reserve, into any of the yards, into the thick bushes or down a nearby
walkway leading to the shops.
780.
Mr Jennings said that SC Pitkethly should have reversed the car and
waited for the arrival of extra resources. Neither the risk of Jonathan
escaping, or the presence of members of the public (which is common in
situations where a person is arrested), was a basis for ignoring the AFP’s
documented standards for dealing with mentally ill people. Even after the Safety
Principles Circular Model was pointed out to him, particularly its reference
to “police presence” as a possible police response, Mr Jennings held to
his view that the police officers should not have got out of the car. I
cannot see that the reference to “police presence” as an available response
undermines Mr Jennings’ view; the fact that police presence (which in any case
would presumably include the presence of police in a police car) will often be
a necessary and sometimes a sufficient response to an incident or event in no
way seems to me to require a police officer to get out of a car if there is no
good reason to do so and good reasons not to do so.
781.
Mr Hazzard said that there was some risk of Jonathan running away
if Senior Constables Pitkethly and Willis had stayed in the car, but not enough
to justify them getting out of the car, given the risk to police safety from
doing so and that extra resources were on the way.
782.
Mr Hazzard noted that if Jonathan had run away, the two police officers
could have followed him. In staying in the car (and locking the doors and
reversing up the street if Jonathan had approached them) they would not have
been neglecting their duty to look after the interests of the people in the
neighbourhood, and the risks of Jonathan harming anyone while they waited were
minimal; in support of this he referred to Jonathan’s departure in response to
Mrs Healy’s threat to call the police.
(a)
the CO3 reference to the need to consider, among other things, “the
practicality of withdrawal from the place of danger” before using a firearm
(para 3.1(2), quoted at [612] above);
(b)
the focus in the Ten Safety Principles on avoiding confrontation
(at [621] above); or
786.
Apart from the alleged risk to individuals, especially Andrew Oakley,
the justification for attempting an urgent apprehension of Jonathan was that he
might have “escaped” again. Certainly the intentions of both police officers
seem to have been influenced by the belief that Jonathan had been “eluding”
police for some time and that he might disappear again, although SC Pitkethly
denied having been frustrated at not being able to find him.
787.
The proposition that a person who has “eluded” or “escaped” police for
over an hour might run away again when he saw the police was raised several
times during the trial. This proposition assumes that Jonathan had in fact “eluded”
or “escaped” the police for over an hour. It is true that until Senior
Constables Pitkethly and Willis arrived at Doyle Terrace, Jonathan and the
police had not been in the same place at the same time. There is, however, no
evidence at all that Jonathan had sought to “elude” police. It is true that he
left Mrs Healy’s home after she threatened to call the police, but there is no
evidence that he did so either at speed or using a route that enabled any
concealment. Apart from his visit to Mrs Healy, all the reported sightings
involved Jonathan in very public areas, generally walking on public streets
including sometimes in the middle of the roadway. Even his encounter with
Mr Richter, not reported to police before Jonathan was shot, took place in
an unfenced front yard and involved actions, including slamming down the
tailgate of the van, that were clearly not consistent with any intention to
conceal his presence. SC Willis agreed that when they found Jonathan, he
showed no signs of wanting to escape.
788.
I am satisfied that the risk of Jonathan escaping could have been
adequately addressed by keeping Jonathan under observation until the other
officers arrived or, if necessary, by getting out of the car and running after
him if he ran away (an option mentioned by several of the expert witnesses
including even Mr Schuberg (T1548)). There was no need to act precipitately,
and no basis for believing that immediately was as good a time as any to
approach Jonathan.
789.
I find that there was no urgent need to apprehend Jonathan,
either to prevent an imminent attack on anyone or to prevent Jonathan’s escape,
and therefore no reason to act quickly in anticipation of the arrival of extra
police officers. Instead, I find, the imminent arrival of extra police
officers would have justified Senior Constables Pitkethly and Willis in simply
observing Jonathan until either the other police officers arrived or Jonathan
did something that genuinely required an immediate response.
790.
For the purpose of assessing the attempts to “communicate” or “negotiate”
with Jonathan, I note first that the key points for effective communication
with mentally disordered people (contained in the Participant Handout
and set out at [629] above) include:
(7) Be aware that the person may be frightened and
abuse, threats or tough tactics on your part may only serve to cause the person
to act aggressively;
791.
Mr Hazzard suggested that it would generally be prudent to defer negotiation
until after containment has been effected (T 240), but agreed that there were
various acceptable approaches given the exigencies of operational policing.
There was general agreement that there should have been communication and
negotiation before the police officers tried any other way of apprehending
Jonathan (as distinct from containing him). There was disagreement about what
constituted communication or negotiation, and about how communication and
negotiation were best effected. There was also disagreement about how urgently
that communication and negotiation needed to be started, but that disagreement
reflected the more general disagreement about how urgent it was for the two
police officers to engage with Jonathan at all (see [753] above) and nothing
more needs to be said about it.
792.
It was not disputed that only 42 seconds elapsed between when the two
police officers radioed from their car that they had “got him” and when
Jonathan was shot. Given the other elements of the confrontation that took
place during that 42 seconds, it seems that there was little time for what
would normally be considered negotiations, although SC Pitkethly rejected that
proposition.
793.
The need for communication was advanced as a reason for getting out of
the car as soon as it stopped. SC Pitkethly said that he wanted to “get some
communication with [Jonathan]” and considered he could contain Jonathan by talking
to him. He said that yelling at Jonathan from inside the car, even with the
window down, would not have been “effective communication”. In his second
police interview he explained why he had not given any consideration to using a
public address system, although he assumed that the car had been equipped with
one:
Cause we both got out of the car pretty quickly. I don’t
know. I – as I said it’s all marvellous things in hindsight but at the time we
got it ah – negotiating with someone over those useless bloody feedback noisy
things is not much use anyway, but most of the time – but no one can understand
ya. I’ve – I’ve tried to use them a few times over the years and no one –
either feedback’s so bad, no one can understand ya, someone’s pinched the battery
out of it to put in their torch or um it doesn’t work, so – and then – I don’t
– I don’t think they’re an appropriate way to negotiate with a mental patient
anyway. They’re just as likely to rev ‘em up more then [sic] anything.
794.
While one can sympathise with SC Pitkethly about the difficulties of
using a public address system as described by him, it is clear from his
comments that he got out of the car immediately instead of considering using a
public address system, rather than that he made a considered decision that
whatever public address system was in fact available to him was inadequate and
for that reason he and SC Willis needed to get out of the car immediately.
795.
Federal Agent Rath said that the police officer’s role is above all else
to communicate. He thought that Senior Constables Pitkethly and Willis got out
of the car to facilitate communication with Jonathan, and noted that
communicating with “an aggressive and determined person who appears intent on
doing harm” may require “elevated” communication, possibly including raised
voices, to ensure that police demands are communicated in clear and concise
terms. He noted that there was in 2001 no police doctrine requiring officers
in a case of this kind to stay in the police car and try to communicate from
there, and he said that it was perfectly appropriate for the two police
officers to approach Jonathan as they did.
796.
Mr Hazzard conceded that communicating through, for instance, a public
address system is not the best way, but that police have to operate within the
circumstances they face. He agreed that a “softly spoken face-to-face exchange”
was not necessarily appropriate at all in dealing with a person with a
potentially lethal weapon.
797.
Mr Jennings agreed that negotiation is better carried out face to face, and
that either yelling or using a loud-hailer from within the car would not have
been ideal, but said that negotiation can also be done effectively by telephone
or loudspeaker. Furthermore, he said, any attempt at communication should have
been made by one of the officers only; it was undesirable for both of them to
be “communicating” with Jonathan at the same time; this had also been recognised
by SC Pitkethly (at [372] above). It would have been standard police
practice to have one person in the role of communicator and negotiator; if it
was necessary for someone to approach Jonathan, that person should have been
unarmed and should have shown no aggression to Jonathan.
798.
The rejection of options such as yelling at Jonathan, or using a
loud-hailer or public address system, from inside the car as not permitting
“effective communication” might be taken to imply that communication would be
more effective if it could be conducted without the need to shout or otherwise
amplify the voice. In fact it seems that getting out of the car did not lead
to communication at a more restrained level, but simply to higher-impact
yelling.
799.
Mr Jennings did not accept that the two police officers had engaged in
any “negotiation”; he said that “a brief abusive demand” (including swear words
or profanity) is not negotiation, and such a demand, even if made after SC
Willis had been hit by Jonathan, was still “abusive”.
800.
Mr Schuberg, having agreed that attempting a “peaceful negotiation” with
Jonathan would have been reasonable, conceded that the use of OC spray (and the
other actions by Senior Constables Pitkethly and Willis when they got out of
the car) did not constitute a peaceful negotiation. He agreed that police
protocols recommend a “softly-softly” approach to people with mental illness,
but said that Senior Constables Pitkethly and Willis should not be criticised
for shouting at Jonathan because they were in a “life-threatening” situation
and any reasonable person would have been “so excited and pumped-up” that it
would have been a surprise if they hadn’t shouted, and used “language”.
801.
The use of what was referred to at times as “language”, apparently a
euphemism for bad language, needs to be addressed. Evidence given at trial
suggested a significant use by police of “language”: for instance, Andrew
Oakley described the instructions to Jonathan at one point as “drop your weapon
and get on the fucking floor”. There were also reported uses of “language” in
the moments before Jonathan was shot. The use of “language” was criticised by
Mr Jennings but defended by Mr Schuberg.
802.
I do not regard the use of “language” as an issue in this matter. The
position of the police as exemplars and role models in the community may well
be better served by police avoiding the use of bad language in the performance
of their duties. However, there is no doubt that police work is stressful and
sometimes dangerous and that, in times of heightened emotion, police officers,
like other human beings, may find it difficult to behave with delicacy. This
is not a basis for criticising them.
803.
It seems unlikely that the language reported by witnesses included
anything that would have shocked or surprised Jonathan, given his age and previous
life experiences; indeed Andrew Oakley’s evidence was that Jonathan had used
similar language himself in their first encounter (at [264] above). None of the
“language” as far as I can see was blasphemous and therefore at particular risk
of inflaming him (although as Mr Richter noted, his own blasphemy seemed to
have improved his situation). The language used by the police officers
certainly would not have helped to calm anyone down, but I am satisfied that it
would have been at most a minor contributor to the overall emotional
temperature of the encounter between them and Jonathan, which would have been
far more influenced by matters such as the mode of arrival of the police car,
the speed of the police action when the car stopped, the body language of the
officers (including using the doors of the police car as shields as if in an
old-fashioned police drama), and their use of raised voices to give orders to
Jonathan.
(a)
that there was no genuine attempt to communicate or negotiate with a
person who was believed by both police officers to be mentally disturbed; and
(b)
that getting out of the car and confronting Jonathan as the two police
officers did was what provoked Jonathan’s violent and aggressive response, and
that this in turn was the reason for the rapid deterioration of the situation
from that point.
805.
Given my findings about the use of OC spray at [391] above, there are
several comments that can be made.
806.
It would be possible, by focussing on a particular subset of the
evidence in this case, to construct an argument that at least the first use of
OC spray, or perhaps the first use by each officer, was in breach of paragraph
6.1(1) of CO3. That paragraph (set out at [612] above) relevantly permits the
use of chemical agents where a police officer believes on reasonable grounds
that their use is reasonably necessary to defend himself or others from
physical injury, or to arrest a suspect whom he believes on reasonable grounds
poses a threat of violence, and in each case the aim cannot be achieved less
forcefully (paragraphs 6.1(1)(a) and (b) of CO3).
807.
Whether any such argument would be sound, or fair, is another question,
given the difficulty I have already mentioned of making findings about the
exact sequence of events involving the early uses of OC spray.
809.
What does however seem to be relevant is the failure of Senior
Constables Pitkethly and Willis, as noted at [720] above, to give proper
thought to where OC spray would fit into an attempt to apprehend Jonathan,
which was just another aspect of their failure to plan or assess risks before
they got out of the car.
810.
I note in particular that whatever other characteristics the “negotiations”
with Jonathan had, my finding that the two police officers were holding their
OC sprays when they got out of the car means that there was no “soft empty
hands” negotiation.
812.
The specific instructions given to the police officers concerned in the
search for Jonathan, are referred to at [278]-[282] above. At [279] and [280]
above there are references to Sgt Morris’s belief that Senior Constables
Pitkethly and Willis were aware of her plan for containment and negotiation,
and to SC Pitkethly’s agreement that he assumed that the plan was to cordon,
contain and negotiate.
813.
As to the impact of training and AFP policy more generally, Senior
Constables Pitkethly and Willis were cross-examined at length about whether
they believed they had complied with applicable police guidelines and
instructions. Several of the security experts also gave evidence about this
issue. I do not see any need to assess the actions of the two officers by
reference to all of the different police documents set out earlier. I note SC
Pitkethly’s comment at trial that the safety principles, unlike CO3, are not “a
mandatory black and white thing”, and that they are “dependent on the
circumstances”. However, the issue in this case is only peripherally, if at
all, whether the two police officers had breached any mandatory requirement to
do with the use of specific forms of force. The real issue is whether they had
acted in accordance with their training and instructions in the particular
circumstances. Accordingly, it is more relevant to assess their actions by
reference to the safety principles whose application depended on the particular
circumstances rather than by reference to the more specific CO3 rules about the
circumstances in which different kinds of force were permitted to be used. Having
regard to Federal Agent Rath’s evidence at [619] above and to SC Pitkethly’s
evidence at [644] above, I propose to address only the matters covered in the Safety
Principles Circular Model and, in conjunction with that, the Ten Safety
Principles.
You’ve got to consider your own safety, the safety of those
around you, the non-involved third parties if I could put it that way, and the
safety of the person you’re dealing with.
816.
However, he said that before
getting out of the police car in Doyle Terrace:
I didn’t even consider the thought about what was safer. The
thought was we’ve got to contain this bloke.
818.
While denying that he had acted that way, SC Willis conceded that
it would be bad police practice to approach a disturbed person, threaten him
with OC spray and tell him to drop his weapon and get on the ground.
819.
As described at [615] above, the Safety Principles Circular
Model lists nine options for police responses, as well as the words “Communication”,
“Assess and Re-Assess”, and “Reasonable; Evaluation; Safety; Preparation;
Objectives; Negotiation; Sensitivity; Empowerment”. It then sets out the
RESPONSE mnemonic. There is not much to be said about the lists of response
options or other words, especially since it is clear from the evidence of Federal
Agent Rath and SC Pitkethly that there is no hierarchy of response options, and
so there is no need to consider whether those options have been used in the
required order. The following comments can be made about the material in the
mnemonic (shown below in bold) and the equivalent material in the Ten Safety
Principles (shown below in italics).
820.
REASONABLE: Any application of force must be reasonable, necessary
& proportionate to the threat or resistance offered (8. Minimum
Force: Where force cannot be avoided, only the minimum amount reasonably
necessary is to be used.): It is clear with hindsight that the use of a
firearm was out of proportion to the threat posed by the weapon being carried
by Jonathan, but it is not clear that by the time Jonathan was shot this was
apparent to the two police officers (both of whom claimed to have believed that
the kendo stick had the potential to crack or crush a skull. The position
relating to the use of OC spray is less clear-cut, even in hindsight, but for
the reasons set out at [808] above I do not consider that there is a sufficient
basis to conclude that the use of OC spray was unreasonable, unnecessary or
disproportionate to the threat offered.
828.
As well as the comments I have already mentioned about specific aspects
of the police officers’ actions, the expert witnesses made general comments
about the decision made by Senior Constables Pitkethly and Willis to get out of
the car when they did and engage with Jonathan as they did, in some cases by
reference to police training and instructions.
829.
Mr Hazzard said that there was no evidence that SC Pitkethly intended a
violent confrontation, and he seemed to have acted using an appropriate
sequence of responses, but that in getting out of the car, SC Pitkethly had
breached a number of the police safety principles.
830.
Mr Jennings noted that operational policing can be very difficult and
there is always the risk of a police officer being injured or killed. One of
the difficult tasks is dealing with mentally ill people with weapons. In
general in such cases officers need to make instant and instinctive decisions
by reference to the officer’s sworn duties to prevent crime and protect people from
injury.
831.
Mr Schuberg asserted that Senior Constables Pitkethly and Willis had no
option but to try to deal with a direct encounter with Jonathan, because when
they got out of the car, Jonathan:
advanced on them. And then from that point onwards they just
defended themselves ... Against a relentless attack.
832.
Mr Schuberg did not believe that the two police officers got out of the
car intending to cause a confrontation, nor that on the basis of their
knowledge of Jonathan they were taking unreasonable and unnecessary risks in
attempting to disarm him. He believed that the two police officers had an
honest belief that they could detain Jonathan so that he would cause no further
threat.
833.
Interestingly, Mr Schuberg’s view was that Senior Constables Pitkethly
and Willis were “totally committed to a course of action” even as they
approached in the police car and presumably, therefore, before they were aware
of Andrew Oakley’s location and any possible risk to him. Mr Schuberg assumed
that that course of action was to attempt a peaceful negotiation, but in his
view the two police officers were taken by surprise by Jonathan’s action in “advancing
on them in a very menacing and aggressive manner”. However, it is hard to see
why, absent any identified immediate threat to Mr Oakley or anyone else, Senior
Constables Pitkethly and Willis needed to be “totally committed” to any
particular course of action, and their own evidence (at [431] and [434] above)
made it clear that they had no particular course of action planned at all.
834.
Federal Agent Rath said that the two police officers should have known
from their training that a situation can escalate very quickly, but they could
not reasonably have foreseen that Jonathan would react “in such an
uncompromising and determined manner”.
836.
As well as the expert witnesses, Constable Bailey was invited to express
a view. Whether he would have approached Jonathan if he had been the first
police officer to see him would, he said, have depended on the circumstances.
If he had found himself in SC Pitkethly’s situation, however, he would first
have let Communications know about his situation, and then he would have
engaged with the person by getting out of the car. He would have done so
because police swear an oath to uphold the law, protect property and protect
life, and he did not understand there to be an exemption from the police
officer’s duty just because an offender may be larger than a police officer.
Constable Bailey agreed that he had never actually been told that a big,
heavily-armed, mentally disturbed person who is acting “in a crazy fashion”
should only be approached with caution, and with the help of other available
police officers, but said that “it’s common sense”.
837.
I find that Senior Constables Pitkethly and Willis breached the
principles set out in the Safety Principles Circular Model and the Ten
Safety Principles:
(a)
in relation to the need to evaluate the available information and to
conduct risk assessments (at [821] above);
(b)
in relation to the need to focus on the safety of everyone involved in a
police operation (at [822] above);
(c)
in their failure to plan (at [823] above);
(d)
in their failure to articulate their objectives sufficiently to allow
them to assess the feasibility of those objectives properly before they acted
(at [824] above);
(e)
in their failure to attempt any real negotiation (at [825] above);
(f)
in failing to demonstrate any sensitivity to the needs of a mentally
disturbed offender (at [826] above); and
(g)
in their failure to plan and to use all available resources in pursuit
of the “safety first” principle (at [827] above).
838.
The difficulty for the police in this case is that the explanations
given by Senior Constables Pitkethly and Willis for how they acted when they
got to Doyle Terrace are internally inconsistent. They believed (possibly to
some extent because of incorrect assumptions such as that he had tried to kill
Andrew Oakley) that Jonathan was potentially dangerous to members of the public
in the Chapman area, and on this basis felt it was their duty to engage with
Jonathan immediately to ensure that he didn’t escape and endanger other
people. However, to the extent that they believed Jonathan was irrational,
armed and generally dangerous, they should have thought more carefully, and at
least agreed on an approach to him, before getting out of the car, given that
Jonathan was posing no immediate threat to anyone and was not apparently trying
to escape, and that a sizeable group of other officers, including eight OSG
members and as many other officers, were on their way to Doyle Terrace seconds
behind Senior Constables Pitkethly and Willis.
839.
SC Pitkethly was of course correct when he said at the end of giving
evidence that it’s much easier to make critical decisions in retrospect than “when
you’re actually on the ground doing it”. However, it is presumably the need,
as far as possible, to make good decisions during a crisis rather than only
when it’s too late that has driven the AFP to develop the assortment of orders,
guidelines, principles and training materials that were produced during the
trial, and to insist that AFP officers are trained and regularly re-trained in
skills relating to the use of force. I have no doubt that the AFP’s intention
is that the split-second decisions that are required in a crisis are made
against a background of knowledge and understanding, and using skills and
approaches, that have been developed as a result of assessing previous crises
with the benefit of hindsight, and have been passed on to officers through
training intended to ensure that they are well-placed to make good decisions on
the ground.
840.
A necessary aspect of any inquiry into whether a duty of care has been
breached is to consider whether the defendant had any realistic alternative to
the way he or she in fact acted.
(a)
sitting in the police car where it initially stopped; or
(b)
sitting in the police car after having reversed it some few metres (50
metres, for instance), which would still have placed the car between Jonathan
and where Allan Richter was standing further up Doyle Terrace; or
(c)
making a genuine but low-key attempt at communication and negotiation,
while paying proper attention to their own safety.
842.
From the police car in either location they could have kept Jonathan
under observation until their colleagues turned up, on the basis that if
Jonathan continued down the street away from them, or back up the street past
them, they could follow him at a distance in the police car, and if he turned
off Doyle Terrace either into someone’s yard or into a walkway or other area
where he could not be followed by car, they could get out of the car and follow
him on foot but still at a distance, confronting him only if he seemed to be
approaching a vulnerable member of the public.
843.
Alternatively, one or other of the officers (presumably not the driver
of the car, so as to leave the car as a possible refuge and escape route if
necessary) could have got out of the car, without visible weapons and in a
non-threatening manner, showing “soft empty hands”, and attempting in a quiet
and gentle way to engage Jonathan in conversation at least until other officers
arrived.
Breaches
of duty by the police officers – findings
847.
I have already found at [804] that it was the approach adopted by
Senior Constables Pitkethly and Willis that provoked Jonathan’s violent and
aggressive response, while accepting that their status as police officers was a
negative rather than a positive element in the confrontation.
850.
Those findings, and the discussion on which they are based, also address
the additional forms of negligence pleaded by the second defendant against the
police and set out at [692](b)(i) above.
(a)
producing and using OC spray, and using it without justification;
(b)
using a baton without justification;
(c)
drawing his gun without justification when police officers were not in
danger, wrestling and manhandling Jonathan with a drawn firearm, and failing to
holster his gun before trying to physically restrain Jonathan;
(d)
firing on Jonathan without taking steps to get help from ACTMH (Crisis
Team).
853.
Part 4 of CO3 (set out at [612] above) deals with batons. They may be
used only to provide protection against violent attack, where the police
officer believes on reasonable grounds that the use is reasonably necessary to
reduce the risk of violent attack. I am satisfied that by the time SC
Pitkethly used his baton, he had reasonable grounds for believing that its use
was reasonably necessary to protect him against the violent attack he was
facing.
854.
I note in passing the suggestion made on behalf of the police that the
CO3 provisions mean that the baton may be used only as a defensive weapon and
therefore that it could not lawfully have been used, as suggested by Peter
Smith (whose expertise related to defensive tactics), to disable or disarm
Jonathan by a motor nerve strike to his thigh or forearm, even for a defensive
purpose. If that is in fact the correct interpretation of CO3, it would seem
to impose an unfortunate limit on the use of a baton as an alternative to a
gun.
855.
However, there is no evidence before me that SC Pitkethly’s use of a
baton was in breach of CO3, or that it did anything in relation to Jonathan’s
injuries except to delay briefly the point at which SC Pitkethly felt obliged
to use his gun.
856.
Nor is there any evidence of SC Pitkethly wrestling or manhandling
Jonathan after he had drawn his gun, or evidence that he attempted to
physically restrain Jonathan without having holstered his gun. All the
evidence is against the possibility that the shooting was an accidental outcome
of negligence by SC Pitkethly in handling his gun; rather, the shooting was
quite intentional, and it has been conceded on behalf of Jonathan that it was a
justified response to the threat that SC Pitkethly believed he was facing.
857.
It is also clear on the basis of the same evidence that by the time SC
Pitkethly drew his gun there was no scope for him to seek help from ACTMH in
dealing with Jonathan.
858.
Accordingly, I find that SC Pitkethly did not breach the duty of
care owed to Jonathan in his use of the various weapons available to him.
859.
The negligence specifically alleged against SC Willis by the plaintiff
(at [691] above) is covered by my findings at [848] and [849] above.
860.
The second defendant says (at [692] above) that the first defendant is
vicariously liable for the failure of SC Willis and Constable Bailey to come to
SC Pitkethly’s aid when Jonathan attacked him, and also that SC Pitkethly was
negligent in failing to call for help from SC Willis or Constable Bailey. I
shall deal with those claims to the extent that they are based on an alleged
duty of care owed to Jonathan, but not to the extent, if any, that they assume
a duty of care owed to the second defendant.
861.
I have already found at [425] above that SC Willis did not behave in a
cowardly manner or inappropriately fail to come to the aid of his partner.
862.
Constable Bailey arrived in time to see SC Pitkethly lose his baton
while defending himself against Jonathan’s attempt to hit him on the head with
the kendo stick. SC Pitkethly took out his gun almost immediately thereafter.
863.
Consistent with SC Willis’s comments mentioned at [423] above, I am
satisfied that once SC Pitkethly had drawn his gun, it would have been
inappropriate for either SC Willis or Constable Bailey to have moved in on the
struggle, because it would have put their own lives at risk as well as
inhibiting SC Pitkethly in using the gun to protect himself. For that reason,
and because of the very brief period for which each police officer was able to
observe the struggle between SC Pitkethly and Jonathan before SC Pitkethly drew
his gun, I find first that SC Willis did not breach any duty of care to
Jonathan in failing to go to SC Pitkethly’s aid, and secondly that if Constable
Bailey was affected by the duty of care to Jonathan assumed by Senior
Constables Pitkethly and Willis (as to which there has been no argument and no
finding), he did not breach any such duty of care by failing to go to SC
Pitkethly’s aid.
864.
Nor can I see that SC Pitkethly was negligent in failing to call for
help. To his knowledge, SC Willis had been hit by Jonathan at least once and
possibly twice, and might have been injured. He had no reason to believe that,
unless he made a specific request, SC Willis would not come to his aid to the
extent that he was able to.
865.
There is no evidence that SC Pitkethly was even aware of Constable
Bailey’s arrival before Jonathan was shot, but if he had been he would also
have been justified in assuming that Constable Bailey would, even without a
specific request from SC Pitkethly, try to help if he were able to do so.
866.
To the extent that this claim of breach of duty relies on an obligation
of police officers to come to each other’s aid, SC Pitkethly was also entitled,
given the obvious difficulties he was in, to rely on that expectation to
eliminate the need to call for any help that could safely be given.
867.
I find that SC Pitkethly did not breach any duty of care to
Jonathan in failing to call for help from SC Willis or Constable Bailey.
For the purposes of the law of negligence, the question of
causation arises in the context of the attribution of fault or responsibility
whether an identified negligent act or omission of the defendant was so
connected with the plaintiff’s loss or injury that, as a matter of ordinary
common sense and experience, it should be regarded as a cause of it (cf. Barnes
v Hay). The “but for” (or “causa sine qua non”) test may well be a useful
aid in determining whether something is properly to be seen as an effective
cause of something else in that sense. In particular, the test will commonly
exclude causation for the purposes of the law of negligence if the answer to
the question it poses is that the accident which caused the injuries would have
occurred in the same way and with the same consequences in any event: see,
e.g., Duyvelshaff v. Cathcart & Ritchie Ltd. (citations omitted)
869.
I have found that Senior Constables Pitkethly and Willis had assumed a
duty of care to Jonathan by taking control of the situation in Doyle Terrace
and that they breached that duty of care through two aspects of their actions
in Doyle Terrace, namely:
(a)
in confronting Jonathan without having done adequate planning or risk
assessment; and
(b)
in the manner in which they confronted Jonathan.
870.
Applying first the “but for” test as explained by Deane J, the question
can be posed as whether the “accident” which caused the injuries would have
occurred in the same way and with the same consequences in any event, that is,
if the identified breaches of duty had not occurred. In answering this
question, I propose to assume, given the emphasis I have placed on Jonathan’s
unpredictability, that he would have reacted badly to the inevitable encounter
with police officers, whatever exact form that had taken, and would almost
certainly have had to be physically restrained at some point.
871.
Counsel for the police argued that any failure by the two police
officers to negotiate with Jonathan could not be said to be the cause of
Jonathan’s injuries, because the failure to negotiate didn’t make any
difference; in fact, he said:
the whole momentum of what occurred in that 42 seconds ...
was created by the irrationality, the absolute irrationality and physical
strength and the fact that he was armed, of the plaintiff. It didn’t matter
what they’d said to him, it wouldn’t have made a difference. That’s what we say
on causation.
872.
While accepting, as mentioned, that even the most conciliatory of
approaches by the two police officers might not have persuaded Jonathan to lay
down his weapon and go quietly, I do not accept counsel’s submission that, in
effect, the shooting would have been inevitable even in the context of a more
conciliatory approach.
873.
I am satisfied that if the two police officers had, before they got out
of the car, taken a brief period—even as little as 30 seconds—to agree:
(a)
that armed “mental patients” needed to be approached with care;
(b)
that communication and negotiation did not involve shouting as the first
approach;
(c)
that negotiation should be conducted by one unarmed officer who could
perhaps stay behind the open car door (and that if the other officer stayed in
the driver’s seat of the car he would provide an escape option for his partner
if he felt threatened outside the car); or
(d)
perhaps, that it was feasible to sit in the car observing Jonathan until
either the imminent arrival of other police officers or an indication that
Jonathan was about to run away or attack someone;
that delay in confronting Jonathan would have made
the necessary difference.
874.
Alternatively, if one or even both of the police officers had got out of
the car quickly but had genuinely engaged with Jonathan in a
non-confrontational way—with soft empty hands, a soft voice, and a willingness
to be conciliatory (as had worked for several members of the public already
that morning), and also with a willingness to run away from Jonathan if
necessary (on the basis that while he was chasing them he wasn’t attacking
anyone else), that too would have made the necessary difference.
875.
The necessary difference in this case was time.
876.
One more police officer (Constable Bailey) had already arrived before
Jonathan was shot, and others (including Sgt Morris) arrived very quickly
after him. Sgt Morris said she heard the first radio call from Constable
Bailey about the shooting “probably halfway up” Doyle Terrace. The trip from
Chapman shops to Jonathan’s location was agreed to take roughly 48 seconds at
60 kph. Sgt Morris’s evidence means that at the time Jonathan was shot, she
might have been as little as 25 or even 20 seconds away, and she also said that
as she drove up Doyle Terrace there was a police car and an OSG vehicle ahead
of her. If the attempt by the two police officers to engage with Jonathan had
been delayed by even 30 seconds, or if that attempt had taken a less
confrontational course, it would not have reached the point at which
SC Pitkethly decided to take out his gun (if at all) until the surrounding
circumstances were very different. If several OSG members, or a similar number
of other officers, had arrived in time to see SC Pitkethly backing away
from Jonathan, even as late as the point at which he had taken out his baton, I
have no doubt that they would have made their presence felt and moved in to
help their colleague.
877.
This would have had two effects: first that SC Pitkethly would not
have felt so threatened by Jonathan, and secondly that he would not have drawn
his gun, because of the danger that would have presented to his colleagues. If
Senior Constables Pitkethly and Willis had still been sitting in their car when
the other police officers arrived, the situation would have been even less
risky, because there would have been many more options for containing Jonathan
(even if the OSG members had been involved purely as general duties officers),
and Sgt Morris would have been in a position to take control and implement
her “slowly slowly” approach.
878.
The answer to the “but for” question in this case also goes a long way
to answering the more positive aspect of the causation question. However it is
necessary also to consider the other question addressed in March v Stramare,
namely the impact of the plaintiff’s own wrongful conduct. In that case, Mason
CJ said at 518-519:
As a matter of both logic and common sense, it makes no sense
to regard the negligence of the plaintiff or a third party as a superseding
cause or novus actus interveniens when the defendant’s wrongful conduct has
generated the very risk of injury resulting from the negligence of the
plaintiff or a third party and that injury occurs in the ordinary course of
things. In such a situation, the defendant’s negligence satisfies the “but for”
test and is properly to be regarded as a cause of the consequence because there
is no reason in common sense, logic or policy for refusing to so regard it.
879.
In this case, the wrongful (negligent) conduct of the police generated,
among other things, the very risk of injury to the person being confronted that
in fact resulted from that person’s own wrongful conduct in response. Jonathan’s
response, and the resulting injury to him, were the “very kind of thing” (Knightley
at 364, Stephenson LJ) likely to happen as a result of the police officers’
initial negligence. In Zalewski, Hansen J said at 580:
It was open to the jury to accept that the action of [the
police officer] in opening the door involved a risk of injury to the respondent
by shooting. ... It was then open to the jury to find that the events which
occurred thereafter and which led to the respondent being shot were the kind of
thing that was likely to occur as a result of [the police officer’s] conduct.
It is clear that the jury so found, and that accords with the “logic and
commonsense” of the situation.
880.
Accordingly, I find that the breaches of duty identified at [848] and [849]
above caused Jonathan’s injuries.
This is a case of an experienced police officer who it was
open to the jury to find acted impetuously, without due enquiry and reflection,
in disregard of police instructions, in the face of a risk of provoking a
situation involving a person with a psychiatric or psychological condition and
who did provoke by his actions a situation which it was open to the jury to
find was a probable consequence of his actions.
Part
7 – Claims against ACTMH – the applicable law
(a)
ACTMH is said to have been negligent in its failure to provide
information and training to the AFP in how to deal with persons acting in an
aberrant manner (in particular about the appropriate use of OC spray in dealing
with persons acting in an aberrant manner);
(b)
ACTMH is said to have been negligent in the failure by its staff on the
Tuesday to follow up, and implement, Jon Wells’ Monday night plan for further
assessment and treatment of Jonathan, and the specific failure to facilitate
Jonathan’s admission to hospital on the Tuesday;
(c)
Jason Morris’s failures to pass on his observations of Jonathan to the
Crowley family, and to pass on those observations to ACTMH colleagues until two
hours after making them, are said to have been negligent;
(d)
ACTMH is said to have been negligent in its record-keeping activities,
particularly in relation to the recording of Jonathan’s information, in its
failure to connect the person being sought by police with its patient Jonathan
Crowley, in its failure to give police information about Jonathan that was in
ACTMH records (including the information provided by Jason Morris), and
generally in failing to respond appropriately to police inquiries about the
person who was in fact Jonathan.
883.
It is apparent that some of the particulars of negligence relate to the
care provided directly to Jonathan, but others relate to how ACTMH dealt with
other people, specifically the Crowley family and the AFP, in relation to
Jonathan and his emerging crisis. The analysis of the duty owed to Jonathan
accordingly raises several different issues, and must address various arguments
about the impact of particular circumstances on the different kinds of duty of
care said to arise in this case.
884.
The determination of ACTMH’s position in relation to Jonathan is
complicated by the possible interaction of a common law duty owed by a health
care provider to its patients (which I refer to for convenience as a “doctor-patient”
duty of care) with a discretionary statutory power possessed by the health care
provider in relation to certain patients in certain circumstances. There are
two questions to be resolved in relation to the statutory power, being first,
whether any duty of care exists with respect to the exercise of the statutory
power and secondly, the significance of any such duty for the common law duty
arising directly from the doctor-patient relationship. In particular I need to
deal with an implicit submission on behalf of ACTMH that the existence of a
statutory power of compulsory detention displaces any common law duty that
would otherwise have been owed by a defendant, except any such duty arising
from the existence of the statutory power.
885.
The doctor-patient duty of care is in the nature of that
recognised as the starting point for the NSW Court of Appeal’s consideration in
Hunter Area Health Service v Presland (2005) 63 NSWLR 22 (Presland).
That case involved a claim for damages arising out of a doctor’s negligent
failure to detain the plaintiff, pursuant to a discretionary statutory power,
during a psychotic episode. Shortly after his discharge from hospital, the
plaintiff had killed his brother’s girlfriend; he sued in respect of the
non-physical damage he had suffered through being incarcerated for
18 months after having been found not criminally liable for the killing.
Argument centred on whether in the particular circumstances of that case a
common law duty of care could be imposed on the defendants (the doctor, and the
hospital where he worked), associated with the statutory power to detain the
plaintiff.
886.
I note first that Presland is not as such authority for
the finding of a duty of care in the current case. However, there is nothing
in Presland that would be inconsistent with a finding in this case that
a duty of care was owed by ACTMH not only to Jonathan as a patient but also in
relation to the possible exercise of the power of involuntary detention, and a
number of aspects of the judgments in that case would be consistent with such a
finding.
887.
Before considering the ultimate question in Presland,
Spigelman CJ and Sheller JA referred to the doctor-patient duty of care.
888.
Spigelman CJ noted at [6] that the defendants “accepted that they had a duty to the [plaintiff] to
provide proper care with respect to diagnosis and, subject to consent,
treatment”.
889.
Sheller JA at [186] referred to the duty of care accepted by the
defendants as “a duty to exercise reasonable care and skill in the provision of
professional advice and treatment”, and referred to Rogers v Whitaker
(1992) 175 CLR 479 in which it was said at 483:
The law imposes on a medical practitioner a duty to exercise
reasonable care and skill in the provision of professional advice and treatment
... The standard of reasonable care and skill required is that of the ordinary
skilled person exercising and professing to have that special skill ...
891.
Whether ACTMH also owed a common law duty of care in relation to the
possible exercise of the statutory power to compulsorily detain (set out at [906]
below) is a more complex question.
892.
In Presland, the defendants argued that the duty to provide “proper care with respect to diagnosis and, subject to
consent, treatment” did not “extend to encompass the exercise of the statutory
power to detain” the plaintiff. In the event, the question whether a
relevant duty was owed was resolved by reference to the nature of the injury
complained of by the plaintiff, rather than directly by reference to the effect
of the statutory power to detain, but there are indications in all the
judgments that in a different case a duty of care arising out of the existence
of the statutory power could co-exist with the doctor-patient duty of care.
(a)
for the person’s own protection from serious physical harm; or
(b)
for the protection of others from serious physical harm.
895.
Under s 9 of the NSW Mental Health Act, mentally ill persons also
included those needing care, treatment or control, “for the person’s own
protection from serious financial harm or serious damage to the person’s
reputation”.
896.
Spigelman CJ who, in dissent, found that there was a duty of care even
in respect of the kind of injury complained of by the plaintiff, noted at [28]
in relation to the NSW Mental Health Act that:
the Act distinguishes between the protection of the person under
consideration from serious physical harm and the protection of others from
serious physical harm. In the first case the focus is on self-inflicted or
accidental harm to the particular person whose mental state is under
consideration and, in the second case, to physical harm to third parties caused
by the person whose mental state is under consideration. The facts of this
case do not fall within either category. The loss or injury occasioned to the
respondent in the present proceedings came about as a consequence of the harm
he committed on another. Such loss or injury does not fall within either
category of harm in the relevant sections.
If this were a case involving self-inflicted or accidental
harm to the respondent that arose from his mental illness or disorder, or if
this were proceedings by a third party who had suffered harm at the hands of a
mentally ill or disordered person, then it would fall within the intended
sphere of protection to which the statutory provisions expressly relate.
897.
Thus, it is implicit in the comments of all members of the Court that
the doctor-patient duty of care may co-exist with a further duty of care in
respect of injuries that the conferral of the statutory power is intended to
prevent.
[The defendants] accepted that each owed the plaintiff a
general duty of care at common law of the nature pleaded. That concession
inevitably recognised that if the plaintiff should have been detained because
he was mentally ill or mentally disordered and there were reasonable grounds
for believing that his detention was necessary for the protection of others
from serious harm, the defendants could scarcely argue that they could not have
foreseen the risk of injury of the kind which in fact occurred; compare Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 578 [87]. Moreover,
it is obvious that a person charged with the care of another person who is
mentally ill or mentally disordered to a degree that he may cause serious harm
to others owes a duty to the patient to take reasonable care to ensure that the
patient does not do serious harm to others. Absent the availability under
statute of power to detain the patient what can reasonably be done to achieve
this object may be limited to advising the acceptance of confinement or
medication or other forms of care. But that at least would be within the scope
of the duty. No one could doubt the duty of a medical practitioner to a
patient suffering from a contagious disease to advise the patient, in the
patient’s own interest, to take steps, so far as reasonably possible, to avoid
spreading it to others.
899.
Whether there was in fact a common law duty of care associated with the
statutory power that extended to the injury complained of was, as Spigelman CJ
noted, a novel issue with respect to the existence or scope of a duty of care.
Accordingly he proceeded to undertake the multifactorial or “salient features”
analysis that he described as “the contemporary Australian approach” to such
issues and which he based on the observations by Gummow and Hayne JJ in Graham
Barclay Oysters when they said:
[146] The existence or otherwise of a common law duty of
care allegedly owed by statutory authority turns on a close examination of the
terms, scope and purpose of the relevant statutory regime. The question is
whether that regime erects or facilitates a relationship between the authority
and a class of persons that, in all the circumstances, displays sufficient
characteristics answering the criteria for intervention by the tort of
negligence.
[147] Where the question posed above is answered in the
affirmative, the common law imposes a duty in tort which operates alongside the
rights, duties and liabilities created by statute.
...
[149] An evaluation of whether a relationship between a
statutory authority and a class of persons imports a common law duty of care is
necessarily a multi-faceted inquiry. Each of the salient features of the
relationship must be considered. The focus of analysis is the relevant
legislation and the positions occupied by the parties on the facts as found at
trial. It ordinarily will be necessary to consider the degree and nature of
control exercised by the authority over the risk of harm that eventuated; the
degree of vulnerability of those who depend on the proper exercise by the
authority of its powers; and the consistency or otherwise of the asserted duty
of care with the terms, scope and purpose of the relevant statute. (citations
omitted)
900.
Spigelman CJ at [11] summarised the issues as follows:
For the purpose of determining whether the relationship
between a statutory decision-maker and an individual is such as to create a
duty of care with respect to the exercise of the power, a court must consider a
range of circumstances. As the above passage from the joint judgment of Gummow
J and Hayne J indicates, four matters are of significance:
·
the purpose to be served by the exercise of the power;
·
the control over the relevant risk by the depository of the
power;
·
the vulnerability of the persons put at risk; and
·
coherence.
901.
The recognition, by all three members of the Court in Presland,
of a limited duty of care arising out of the existence of a statutory power of
compulsory detention, albeit not necessary to the ultimate decision in that
case, suggests that the issue arising in the current case is no longer an
entirely novel issue, and that there is no need for me to undertake from first
principles the same inquiry undertaken by Spigelman CJ in relation to
compulsory detention powers under mental health legislation. However, there
are a number of comments that should be made about the applicability of the Presland
analysis in the ACT context and in the particular circumstances of this case.
902.
The NSW scheme applied to both mentally ill and mentally disordered
persons (defined as set out at [894] above). Under s 21(1) of the NSW Mental
Health Act, such people could be detained on the certificate of a medical
practitioner:
(a) who
has personally examined or personally observed the person immediately before or
shortly before completing the certificate; and
(b) who
is of the opinion that the person is a mentally ill person or a mentally
disordered person; and
(c) who
is satisfied that no other appropriate means for dealing with the person are
reasonably available, and that involuntary admission and detention are
necessary; and
(d) who
is not a near relative of the person.
903.
Section 21(4) limited the effect of such a certificate:
(4) A person
may not be admitted to or detained in a hospital on a certificate:
(a) certifying
that the person is a mentally ill person – unless the person is so admitted
within 5 days after the day on which the certificate is given; or
(b) certifying
that the person is a mentally disordered person – unless the person is so
admitted within 1 day after the day on which the certificate is given.
904.
The detention could be achieved with the help of the police (s 22). As
well, police could apprehend a person and take him or her to hospital as a
result of a recent suicide attempt or a probable suicide or serious self-harm
attempt (s 24).
905.
As to the purpose of the scheme under which the statutory power was
conferred, Spigelman CJ said at [12]-[13]:
Where the person asserting the existence of a duty is a
person whose welfare or safety is to be protected by the exercise of the power,
then the court will more readily reach the conclusion that a duty of care at
common law arises. The fact that a power has been conferred for the protection
of a particular class of person is not determinative, but it is indicative.
... where the power is conferred for the purpose of
protecting, inter alia, the plaintiff, from a risk that has materialised, that
is a factor entitled to considerable weight and will, in the ordinary course,
be determinative on the issue of scope of duty.
37 Apprehension
(1) If
a police officer has reasonable grounds for believing that a person is mentally
dysfunctional or mentally ill and has attempted or is likely to attempt—
(a) to commit suicide; or
(b) to
inflict serious harm on himself or herself or another person;
the police officer may apprehend
the person and take him or her to an approved health facility.
(2) Where
a doctor or mental health officer believes on reasonable grounds that—
(a) a person is mentally dysfunctional or
mentally ill and—
(i) as
a consequence, requires immediate treatment or care; or
(ii) in
the opinion of the doctor or mental health officer, the person’s condition will
deteriorate within 3 days to such an extent that the person would require
immediate treatment or care;
(b) the person has refused to receive that
treatment or care; and
(c) detention
is necessary for the person’s own health or safety, social or financial
wellbeing, or for the protection of members of the public; and
(d) adequate
treatment or care cannot be provided in a less restrictive environment;
the doctor or mental health
officer may apprehend the person and take him or her to an approved health
facility.
(2A) The
tribunal shall, on application, review the decision of a doctor or mental
health officer under subsection (2)(a)(ii) within 2 working days of the
date of receipt of the application.
(3) For
the purposes of subsections (1) and (2), a police officer, doctor or mental
health officer—
(a) may
use such force and assistance as is necessary and reasonable to apprehend the
person and take him or her to the facility; and
(b) if
there are reasonable grounds for believing that the person is at certain
premises—may enter those premises using such force and with such assistance as
is necessary and reasonable.
38 Detention
(1) Where
a person is taken to an approved health facility under ... section 37 ... the
person in charge of the facility shall detain the person at the facility and
while the person is so detained—
(a) may keep
the person in such custody as the person in charge thinks appropriate; and
(b) may
subject the person to such confinement as is necessary and reasonable—
(i) to
prevent the person from causing harm to himself or herself or to another
person; or
(ii) to ensure that the person
remains in custody; and
(c) may
subject the person to such restraint (other than confinement) as is necessary
and reasonable—
(i) to
prevent the person from causing harm to himself or herself or to another
person; or
(ii) to ensure that the person
remains in custody.
(2) If
a doctor or mental health officer believes on reasonable grounds that a person
who has voluntarily attended an approved health facility is a person to whom
section 37(2)(a) to (d) apply, the doctor or mental health officer may detain
the person at the facility and, while the person is so detained, the person in
charge of the facility may exercise the powers mentioned in subsection (1)(a)
to (c) in relation to the person detained.
907.
A person apprehended or detained must be examined by a doctor within
four hours (s 40) and the doctor may authorise involuntary detention for
up to three days (s 41).
908.
The terms of the ACT provision conferring the statutory power display an
intention to protect the health, safety, and social or financial well-being of
the mentally dysfunctional or mentally ill person, and to protect members of
the public, and an intention to do so by permitting involuntary detention
(s 37(2)(c)) where there is no adequate alternative (s 37(2)(d)). It
is perhaps significant that the circumstances in which a doctor or mental
health officer may compulsorily detain a person under s 37 are broader than
those in which a police officer may do so. A police officer may only apprehend
a person to prevent a likely suicide attempt or a likely attempt by the person
to inflict serious harm on him or herself or another person (s 37(1)). A
mental health professional, in contrast, may exercise the power of compulsory
detention not just to prevent death, or serious harm being done to a person,
but even to protect a person’s social or financial well-being. I am satisfied
that the ACT Mental Health Act was intended to establish a relationship
between the persons authorised to exercise the power of compulsory detention
and the class of persons for whose express protection the power is conferred.
909.
Having regard to the significance in Presland of the express
purposes of the empowering legislation, it seems that a common law duty arising
out of the statutory power conferred by the ACT Mental Health Act may
apply to a similar range of injuries to those assumed to be covered in Presland.
The injury suffered in this case, which would certainly have been covered
by the “serious physical harm” sought to be prevented by the NSW legislation,
is also clearly within the scope of the ACT legislation’s attempt to protect
the “health and safety” of the mentally disturbed person.
910.
As to the issue of control, which Gummow and Hayne JJ said in Graham
Barclay Oysters at [150] was “of fundamental importance in discerning a
common law duty of care on the part of a public authority”, Spigelman CJ in Presland
noted at [30] that the level of control possessed by a medical practitioner
with a compulsory detention power may be seen as attenuated by the fact that
there is also scope for voluntary admission of a person in appropriate
circumstances. Voluntary admission is expressly provided for in NSW (Pt 1 of
Chap 4 of the NSW Mental Health Act). I have not been able to identify
an ACT equivalent to Pt 1 of Chap 4 of the NSW Mental Health Act,
providing for voluntary admission to hospital, but it is clear from the
evidence of ACTMH’s dealings with the Crowley family that a voluntary admission
to hospital was an option available to Jonathan.
912.
Spigelman CJ at [33] explained vulnerability in this context as relating
to “the inability of a person to protect himself or herself from the
consequences of negligent conduct by, relevantly, a medical practitioner acting
under [the relevant legislation]”. His Honour noted that the matters he had
already mentioned in relation to control and the availability of voluntary
admission also meant that the availability of voluntary admission would not
necessarily reduce a patient’s vulnerability. That is, if a person’s condition
renders him or her effectively incapable of making use of the option of
voluntary admission, the person cannot be said, on the ground that voluntary
admission is theoretically available, to have the ability to protect him or
herself from a negligent failure to detain.
913.
Finally, Spigelman CJ considered the issue of coherence, noting first at
[35] that there was “no direct inconsistency or incompatibility between the
statutory duty and a common law duty”.
914.
His Honour then considered the argument that recognising a common law
duty of care in relation to a statutory power of compulsory detention was
undesirable because it would encourage the practice of “defensive” medicine.
In rejecting that argument his Honour at [36] identified the alleged risk as
being that concern by a medical practitioner about civil liability “may create
an increased likelihood ... of an involuntary admission”, but said at [37] that
“the court ought to be slow to conclude that a medical practitioner, acting
true to his or her profession, would permit the process of formulating a
professional opinion to be distorted by the prospect of civil liability”.
915.
Sheller JA did not address this question; Santow JA disagreed with
Spigelman CJ about the risk of “defensive” medical practice, but he limited his
express disagreement to the case of an injury of the kind in question in Presland,
while leaving open the possibility that the distorting effect of civil
liability might not be such a concern in relation to a class of injuries
limited by reference to the apparent purpose of the statutory scheme. At [367]-[369]
he said:
First, there is no statutory indication that the psychiatrist’s
duty of care extends beyond the person’s own protection from serious physical
harm or, were action brought by an injured third party, serious physical harm
to that party at the hands of the person not detained; compare s 9(1) and s
10(1).
Moreover, to impose a duty of care in favour of that person
with respect to his or her compulsory detention entails that the duty would
apply both for carelessly failing to detain or carelessly choosing to detain.
That introduces a distortive influence upon the hospital superintendent’s or
psychiatrist’s exercise of his or her statutory discretion in either
direction. The review safeguards offer no ultimate solution. At each point in
the review process, depending on the circumstances, there will be a fear of
legal action for failing to detain or failing to release; the discretion would
be prone to being exercised in “a detrimentally defensive frame of mind”;
compare Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63D; Crimmins
(at 77 [216]). That distortive effect is also an example of where the
imposition of duty of care, so extended, introduces an incoherence to the law
by being inconsistent with the impartial exercise of discretion under the Act.
That distortive effect, and the bias it imports into what
must be an impartial exercise of discretion under the Act may not arise to the
same degree, if liability were limited to serious physical injury suffered by
third parties at the hands of a psychotic person about whose compulsory detention
the hospital were negligent. But it is not necessary to decide that question
here, and I refrain from doing so.
916.
Santow JA’s approach to the risk of “defensive” medical practice can be
distinguished from the present case because of his Honour’s indication that his
rejection of the proposed duty of care related to the “distortive” effect in
the context of injuries in the nature of that complained of by the plaintiff,
and his recognition that the position might be different where the injury
concerned was serious physical harm of the kind addressed in the relevant
legislation.
917.
More fundamentally, I am with respect not convinced that imposing a duty
that applies, in Santow JA’s words, “both for carelessly failing to detain or
carelessly choosing to detain” can correctly be said to impose a “distortive
influence” on the exercise of the statutory power, or to import a “bias ...
into what must be an impartial exercise of discretion under the Act”. The use
of terms such as “distortive” and “bias” suggests that a duty of care would
influence the decision-maker to exercise the decision in a particular way with
a view to avoiding liability rather than by reference to the intended
conditions and purpose of the exercise of the power. If either approach to the
exercise of the power (that is, a decision to exercise or a decision not to
exercise), adopted negligently, may give rise to tortious liability, I cannot
see that the decision-making process is distorted or biased towards either
approach to exercising the decision, rather than being “distorted” or “biased”
towards a careful rather than a careless exercise of the power.
918.
Much was made in submissions on behalf of ACTMH of the objective of the
ACT Mental Health Act that treatment and care are to be provided to
people “in a manner that is least restrictive of their human rights” (s 7(a)),
and of the over-arching focus on “freedom, dignity and self respect” in s 9, as
follows:
A person exercising a function or power under this Act, or
under an order of the tribunal, in relation to a mentally dysfunctional or
mentally ill person shall endeavour to ensure that any restrictions on that
person’s personal freedom and any derogation of that person’s dignity and
self-respect are kept to the minimum necessary for the proper care and
protection of the person and the protection of the public.
919.
I note in passing the comments by Dr Phillips that, quite apart from
legislative requirements, there are strong clinical reasons for preferring the
least intrusive option, but that sometimes there is a need for what he called “benign
paternalism”, and that declining to exercise that responsibility can, he said,
lead to what some American psychiatrists have evocatively described as patients
“rotting with their rights on”. However, whatever the complexities of the ACT’s
mental health policy or its implementation, s 9 makes it clear that compliance
with the policy is part of the conditions for exercise of the power of
involuntary admission. Deciding whether to exercise the power of involuntary
admission requires a careful balancing of the need to protect sufferers of
mental illness from recognised forms of harm and the need to adopt the least
restrictive approach to doing so. There is no separate policy that might in some
circumstances conflict with the exercise of the power.
920.
The imposition of liability for negligent performance of the balancing
act would not change the complexities and possible conflicts inherent in the
relevant legislative requirements, even though it might expand the consequences
of a failure to address those issues properly. I cannot see that the nature of
the balancing act required of mental health workers would be changed by the
existence of a common law duty to engage in that balancing act without
negligence.
921.
Nor can I see that the imposition of a common law duty of care in
relation to the exercise of that power would impose any inappropriate
constraints or conflicts on relevant mental health authorities, or that there
is in relation to such a power any interest that would conflict with an
obligation to exercise proper care in deciding whether or not to exercise the
power. No doubt, in an always overstretched public health system, there are
certain high volume/low risk decisions that as a matter of resource management
cannot justify significant care or attention, but no evidence before me
suggested that the volume of decisions about compulsorily detaining a mentally
disturbed person creates a significant burden—certainly there is nothing in the
evidence available to me about the operations of the Woden Crisis Team to
suggest that they were struggling to manage that aspect of their workload.
Such decisions will, however, often be high risk decisions, and will always
require attention to the human rights considerations set out in the
legislation; clearly those decisions should in any case be made with great
care, skill and attention irrespective of the existence of any common law duty
of care.
922.
It is also necessary to note that the intervening criminal conduct by
the plaintiff in Presland, which was the direct cause of his extended
incarceration, has no counterpart in this case. There is no argument that
Jonathan’s shooting by police was anything other than a tragic outcome of a
situation that I have found was immediately precipitated by the negligence of
the police officers involved. In particular, Jonathan’s shooting was in no
sense a punishment, or other consequence of his aberrant behaviour, imposed
according to law.
923.
Counsel for ACTMH in written submissions addressed only the existence or
otherwise of a common law duty associated with the statutory power to detain,
criticising the plaintiff’s case as proceeding “rather as if the second
defendant were under a statutory duty to provide appropriate care and attention
to persons showing signs of mental illness”. In oral argument counsel
explained that the use of the statutory power was the only way in which ACTMH
could have controlled the situation, an allusion to the significance of control
under the Graham Barclay Oysters approach. However, I cannot see that
ACTMH’s ability to control the situation has the same significance in relation
to a common law duty of care not dependent on the existence of a statutory
power, such as the doctor-patient duty already discussed. For instance, a
failure to use due care in the medical management of a plaintiff may give rise
to liability even though doctors are rarely in a position to control their
patients’ acceptance of recommended treatment. Furthermore, to the extent that
a medical professional’s “control” may be seen to arise from a plaintiff’s lack
of capacity to make relevant decisions in the absence of proper medical advice
(as contemplated by Spigelman CJ at [911] above in relation to patients whose
mental illness or disorder deprive them of the capacity to seek voluntary
admission), then it cannot be argued that ACTMH only had “control” where the
statutory power to detain was exercisable; ACTMH also had control by reason of
its effective monopoly on the understanding of the dangers of Jonathan’s
condition.
924.
It cannot be the case that the possession of a particular statutory
power by an entity automatically relieves that entity of all possible common
law duties irrespective of the relationship between the statutory power and the
activities relevantly being engaged in by the entity, and in the circumstances
of this case I reject any implicit submission that the existence of a statutory
power to compulsorily detain (whether or not it could have been exercised in
the particular case) relieved ACTMH of any duty of care in relation to any of
the other services it provided to members of the ACT community, including
people such as Jonathan to whom the compulsorily detention power might have
been or have become relevant.
925.
It would make no sense to say, for instance, that because ACTMH had a
statutory power which might or might not have been exercisable in relation to
Jonathan, it would have had no duty of care in choosing the appropriate drugs
to administer, or in administering them, to Jonathan if he had been admitted to
hospital (voluntarily or involuntarily).
(a) Failing to
follow the recommendation of Mr. Wells that the Plaintiff required admission
for further assessment and treatment by arranging a further consultation with
the Plaintiff on the morning of 11 December 2001 to allow a more comprehensive
assessment, in circumstances where Mr. Wells had made an assessment that
the Plaintiff was unlikely to attend voluntarily, and instead accepting in an
unquestioning manner the advice of the Plaintiff’s father that the Plaintiff
would instead attend another hospital;
(b) Failing to assess the
Plaintiff again and to facilitate his admission to hospital, on the morning of
11 December 2001;
(c) Failing to act
on the advice of Mr. Wells, an officer of ACT Mental Health Crisis Assessment
and Treatment Team, that the Plaintiff needed to be further assessed on the
morning of 11 December 2001 and needed to be admitted to hospital;
(d) Failing to take
urgent assertive action in relation to the plaintiff’s mental condition on the
morning of 11 December 2001.
930.
Thus, the formulation of the issue by counsel for ACTMH as relating
solely to the failure of the second defendant to exercise its statutory powers,
so as to limit the scope of this inquiry, cannot be sustained.
931.
I have already mentioned the case of Stuart v Kirkland-Veenstra,
which concerned the possible exercise of a duty of care associated with the
existence of a statutory power to detain in circumstances specified in
Victorian mental health legislation. In that case, three members of the High
Court (Gummow, Hayne and Heydon JJ at [118]) appear to have ruled out a duty of
care arising out of a statutory power to detain in a case where the detention
would be for the purpose of protecting from harm a person who is himself in
control of the risk of that harm; the other three members of the Court found
against the respondent plaintiff on the ground that in the circumstances of the
case, the power to detain had not been enlivened. Accordingly, Stuart v
Kirkland-Veenstra does not seem to be authority for a proposition that
there could never be a duty of care on a mental health authority to exercise an
available power to detain. In any case, as noted above, the claim in this case
is not limited to, and the decision is not dependent on, the assertion that the
detention power was available to ACTMH at the relevant time.
932.
Given the nature of the duty owed by ACTMH to Jonathan (described at [928]
above), I am satisfied that the assertion by counsel for ACTMH that the
breaches of duty pleaded against ACTMH involved non-feasance, to the extent
that it is correct, is nevertheless irrelevant.
934.
As to the duty owed to Jonathan, counsel for ACTMH argued that the
disclosure of certain information about patients would have been prohibited by
legislation.
935.
However, the restrictions on disclosure of information were somewhat
overstated by counsel when he referred to a legislative prohibition on
disclosure. The provision, to anyone except the patient, of information about
a patient that is held by ACTMH is certainly restricted by legislation. That
legislation is the Health Records (Privacy and Access) Act 1997 (ACT)
(the Health Records Act), specifically Information Privacy
Principles 9 and 10, which in December 2001 were set out in s 5 of that Act.
936.
Information Privacy Principle 10 relevantly provided as follows:
Principle 10: Limits on disclosure of personal health
information
1 Except
where personal health information is being shared between members of a treating
team only to the extent necessary to improve or maintain the consumer’s health
or manage a disability of the consumer, a record keeper who has possession or
control of a health record shall not disclose the information to a person or
agency (other than the consumer) unless—
(a) the
consumer is reasonably likely to have been aware, or made aware under principle
2, that information of that kind is usually passed to that person or agency; or
(b) the consumer has consented to
the disclosure; or
(c) the
record keeper believes on reasonable grounds that the disclosure is necessary
to prevent or lessen a serious and imminent risk to the life or physical,
mental or emotional health of the consumer or of another person; or
(d) the disclosure is required or
authorised by—
(i) a law of the Territory
(including this Act);
(ii) a law of the Commonwealth;
or
(iii) an order of a court
of competent jurisdiction; or
(e) the
disclosure of the information is necessary for the management, funding or
quality of the health service received by the consumer.
...
5 Where there
is an emergency and a consumer is unable to give or withhold consent to the
disclosure of personal health information, the treating health service provider
may discuss relevant personal health information with an immediate family
member of the consumer to the extent that it is reasonable and necessary to do
so for the proper treatment of the consumer.
937.
Information Privacy Principle 9 restricts the use of personal health
information by a record-keeper, subject to similar exceptions to those provided
by Principle 10.1(b), (c), (d) and (e). Counsel for the plaintiff submitted
that Information Privacy Principle 9 was applicable in this case, and did
not restrict the disclosure of Jonathan’s personal health information by ACTMH
to the AFP because:
If the Second Defendant was providing necessary information
to the Police identifying the Plaintiff as being one of the Second Defendant’s
patients who had been assessed the night before by a CATT team, was mentally
ill from a psychotic condition, and needed to be admitted to a mental health
facility for urgent treatment, the Federal Police, acting in accordance with a
memorandum of understanding between ACT Mental Health and the Federal Police,
would be using that information for the purpose of ensuring that the Plaintiff
obtained the urgent mental health treatment that he needed. This would not
involve any difference between the “particular purpose” for which ACT Mental
Health created this record and the purpose (which would be not only the purpose
of the Federal Police but also of ACT Mental Health) of enabling the Plaintiff
to be approached so he could get the necessary treatment and so as to avoid a
foreseeable risk of significant physical harm to him.
938.
This argument seems to overlook the fact that the AFP was not the
record-keeper and could not be given the information except in accordance with
Principle 10; I am also not convinced that the AFP’s purpose in seeking
information from ACTMH was limited to approaching Jonathan “so he could get the
necessary treatment and so as to avoid a foreseeable risk of significant
physical harm to him”. Counsel’s argument would have made more sense (and
possibly the written submission was intended to do so) if it had referred to
ACT Mental Health, rather than the Federal Police “acting in accordance with”
the MoU and using the information for the purpose of ensuring that Jonathan
obtained the treatment he needed. In my view Principle 10, relating to
disclosure rather than use by the record-keeper, is the relevant one, and I
deal with it below.
939.
Section 5 of the Health Records Act said that the Information
Privacy Principles had “the force of law”. Section 6 said that people to whom
a principle applied “shall not, without lawful authority, contravene the
privacy principle”. The main remedy in relation to such a contravention was a
complaint to the Commissioner for Health Complaints (s 18 of the Health
Records Act), which under s 19 of that Act had effect as a complaint for
the Community and Health Services Complaints Act 1993 (ACT). That
latter Act was repealed in 2006, but under it the Commissioner had power to
refer, or to attempt to conciliate, the complaint.
940.
The Information Privacy Principles apply to “personal health information”;
the relevant definitions are:
personal health information, in relation to a
consumer, means any personal information—
(a) relating to the health, an illness or a disability
of the consumer; or
(b) collected
by a health provider in relation to the health, an illness or a disability of
the consumer;
whether or not the information is recorded in a health
record.
personal information, in relation to a
consumer, means any information, recorded or otherwise, about the consumer where
the identity of the consumer is apparent, whether the information is—
(a) fact or opinion; or
(b) true or false.
941.
The effect of the Information Privacy Principles as in force in 2001 may
be significant in two ways to the question of ACTMH’s duty in relation to the
information about Jonathan that it had acquired and recorded by mid-morning on
the Tuesday.
942.
First, there is the impact of the legislative scheme on the existence of
any duty of care; counsel for ACTMH says that any disclosure of Jonathan’s
information to the AFP would have been contrary to law because it would have
contravened the Health Records Act. As such, coherence in tort law (see
[565] above) would require that there could have been no duty of care to disclose
the information because a common law duty of care to disclose any of the
information held by ACTMH about Jonathan (however important in the interests of
proper patient care) would have been irreconcilable with a statutory obligation
not to disclose that information and should not be found to exist (Sullivan
v Moody).
943.
Secondly, there is the question whether in the particular circumstances
of this case ACTMH would have been unable to disclose information that might
have made a difference.
944.
The prohibition of disclosure found in the Health Records Act is
qualified; the existence of exceptions, and the specific nature of some of the
exceptions, indicate a legislative purpose that could be seen as recognising a
duty of care in cases covered by the exceptions.
945.
The only exceptions to the prohibition on the disclosure of personal
health information that appear to be directly relevant in this case are
Principles 10.1(c) and 10.5, namely:
(c) [if]
the record keeper believes on reasonable grounds that the disclosure is
necessary to prevent or lessen a serious and imminent risk to the life or
physical, mental or emotional health of the consumer or of another person; or
5 Where there
is an emergency and a consumer is unable to give or withhold consent to the
disclosure of personal health information, the treating health service provider
may discuss relevant personal health information with an immediate family
member of the consumer to the extent that it is reasonable and necessary to do
so for the proper treatment of the consumer.
946.
The exception provided by Principle 10.1(c) is clearly aimed at the
protection of any person, whether the patient (“consumer” in the terms of the
legislation) or anyone else, whose life or physical, mental or emotional health
is facing a serious and imminent risk that may be avoided or reduced by
disclosure of the relevant information. Principle 10.5 too is clearly aimed at
protecting the interests of the patient. However, other exceptions also
indicate an over-arching concern with the interests of the patient, such as the
exceptions for sharing information between members
of a treating team only to the extent necessary to improve or maintain the
patient’s health or manage a disability of the patient (Principle 10.1), disclosures with consent
(Principle 10.1(b)) and disclosures that are necessary for “the management,
funding or quality of the health service received by the consumer” (Principle
10.1(e)). The only permitted disclosures that do not explicitly require the
patient’s interests to be accounted for are those required or authorised by
law, including by a court order (Principle 10.1(d)).
947.
Thus, the legislation recognises that the interests of a patient may
permit or in some cases require the disclosure to a third party of information
held about the patient by a provider such as ACTMH. I cannot see any basis for
finding that the doctor-patient duty of care does not encompass both the duty
to share information with third parties as required in the interests of the
health care being provided to the patient, and the duty to share information
with third parties in the interests of protecting the life, or the physical,
mental or emotional health, of the patient from a serious and imminent risk.
Almost by definition, if disclosing the particular information held by the
health provider might contribute to the protection of the life or physical,
mental or emotional health of the patient, then a non-negligent approach to
whether or not there should be disclosure would seem to be part of the provider’s
duty of care to the patient. Similar conclusions can be drawn about the
provision of information to immediate family members in an emergency.
948.
Counsel submitted that there was no evidence that the exceptions permitting
disclosure were relevant in this case; that is, there was no evidence that any
ACTMH staff member had formed the relevant belief for Principle 10.1(c) (being
that disclosure was necessary to prevent or lessen a serious and imminent risk)
and that such a belief could not have been formed on the basis of the
information provided by the police.
949.
The first response to this submission is that the particular fact
situation does not seem to be relevant to the preliminary question whether the Health
Records Act, by restricting the disclosure of personal health information,
excluded the existence or limited the scope of a duty of care owed by ACTMH to
Jonathan, because of the impact of such a duty on the coherence of the law. In
my view, the exceptions provided by the Information Privacy Principles mean
that, far from creating irreconcilable duties, the Health Records Act
specifically, so as not to impinge on the general doctor-patient duty, vacates
the space in which the specified interests of the patient could require the
disclosure of information to third parties.
(a)
that ACTMH would not have contravened the Health Records Act if
it had disclosed relevant information about Jonathan on the basis of a belief
on reasonable grounds that the disclosure was necessary to prevent or lessen a
serious and imminent risk to Jonathan; and
(b)
that in a situation in which disclosure would or might have been
permitted on those grounds, ACTMH’s duty of care to Jonathan (the
doctor-patient duty of care) included giving proper attention to the
possibility of disclosure.
(a)
that there was information that could usefully have been disclosed to
the AFP;
(b)
that disclosure was considered by ACTMH staff members and rejected as
unnecessary (not unlawful);
(c)
that ACTMH staff did not at any stage advert to the restrictions on
disclosure;
(d)
that ACTMH staff did not pursue with the police the question whether
there was serious and imminent danger facing the person whom the police thought
who might have been one of their clients; and
(e)
that some of the information available to the police, in particular that
Jonathan had been putting himself at risk by “playing chicken” with the traffic
on Perry Drive might well have justified disclosure by ACTMH.
953.
The content of ACTMH’s duty of care to Jonathan in relation to the
disclosure of information to the AFP, and in relation to disclosure to the
Crowley family, raises separate questions which are best considered in the
context of the specific instances of negligence pleaded.
954.
Given the way in which Jonathan was injured, it is necessary to explain
the approach I have taken to the foreseeability of injury.
955.
It is easy to identify certain risks as foreseeable and relevant to an
untreated sufferer of a mental disturbance, such as the risks of suicide
(especially in the case of depressive disturbances) or of injuries resulting
from delusions (eg that a person might jump off a tall building in the belief
that he or she can fly). It is not quite so easy to say that being injured by
police during an attempted apprehension is a clearly foreseeable risk of a
failure to provide adequate and timely treatment to a patient.
959.
The breaches pleaded in relation to Jonathan’s possible involuntary
admission to hospital are set out at [927] above. In brief, the complaint is
that on Tuesday morning, ACTMH staff failed to follow Jon Wells’ Monday night
recommendation for a further Crisis Team assessment on Tuesday with a view to
Jonathan being admitted to hospital, voluntarily or involuntarily, that day,
and instead accepted “unquestioningly” Keith Crowley’s alternative proposal to
take Jonathan to hospital voluntarily. For the purpose of determining whether
ACTMH staff breached the duty of care owed to Jonathan, I set out first some
context to the actions of ACTMH.
960.
Dr Telfer gave a useful overview of mental illness generally and
psychosis in particular. He explained as follows:
(a) Mental illness
involves a diverse collection of disorders which cannot be arranged on a
spectrum of severity; psychosis may be mild or very serious.
(b) A psychosis involving
delusions, grandiose ideas and loss of touch with reality is serious, giving
rise to risks to sufferers, their reputations and their relationships with
others. There is an increased risk of self-harm, but no statistical increase
in the risk of violence to others compared with the risk from people who are
not psychotic.
(c) Delusions do not
necessarily imply a complete loss of touch with reality; the sufferer may have
a disturbance of reality only in one small area.
(d) People suffering a
psychosis may be irrational and unpredictable and may act in a dangerous manner
that is beyond their control. They are generally vulnerable to injury,
including self-harm or injuries resulting from their preoccupation with their
delusions.
962.
The first manifestation of a psychosis is referred to as “First Onset”
in the ACTMH forms, but was sometimes referred to by witnesses as “first
episode”. I have used “first onset” throughout, except where quoting.
963.
Dr Phillips and Dr Telfer agreed that a first onset psychosis is
potentially more dangerous than a later psychotic episode, because there is no
basis for predicting how the psychotic episode will play out. The first ACTMH
record, being of Kate Crowley’s call to ACTMH shortly before 7:00 pm on Monday,
specified “no previous psychotic episodes” but also had “First Onset Psychosis”
marked as “No”. Jon Wells had also, in the Module B report prepared after his
visit to the Crowley home on Monday night, marked a box indicating that
Jonathan’s condition was not a First Onset Psychosis, but his detailed comments
showed that Jonathan had no history of psychotic episodes. The record notes at
different points:
[Family] advised me that he has not presented like this before.
His current presentation is unlike any previous presentation.
Psychiatric History: Previous diagnosis of OCD, treated with
aurorix. No previous psychiatric admissions.
He has been a heavy marijuana smoker for many years but has
had no previous psychotic episode.
965.
The expert witnesses disagreed
about the approach taken by ACTMH staff to implementing the plan recorded by Mr
Wells on Monday night. The disagreement centred on their respective
interpretations of how the plan was in fact handled rather than on directly
conflicting opinions about the same behaviour.
966.
When Keith Crowley telephoned
ACTMH before 8:00 am on Tuesday and said according to ACTMH records that he
felt “that [Jonathan] would go to Calvary voluntarily”, the ACTMH response from
Jenny Williams was to record as the plan: “await outcome of attempt at calvary
admission (father will let Catt know later today)”.
967.
Dr Phillips considered this to
amount to the overriding of Mr Wells’ earlier plan. He said that it did not
make clinical sense, and he could not comprehend how the Crisis Team had
allowed Mr Crowley’s views to prevail over those of their own senior staff
member Mr Wells (I note that there was no evidence about Mr Wells’ seniority
within ACTMH, except to the extent that he was apparently senior enough to
conduct preliminary assessments by himself and plan future action). The
decision not to go to the Crowley home for the second assessment, made because
of the phone call from Mr Crowley, “was not in accordance with the standard to
be expected of ordinary skilled mental health workers”.
968.
The matters mentioned by Dr
Phillips in support of his view that Mr Wells’ plan (or “treatment direction”,
as Dr Phillips called it) should have been taken seriously were:
(a) the fact that the
first report about Jonathan had come from his sister, a medical practitioner,
and had included mention of his religiose delusions, his history of cannabis
abuse, the absence of any previous psychotic episodes and the uncertainty about
the availability of weapons;
(b) the mention in Mr
Wells’ report of Jonathan’s references to Judas hanging himself, and to
Jonathan’s aggression and anger when coming off cannabis, both of which
indicated a potential for violence; and
(c) the information about
Jonathan’s build and strength.
969.
Dr Phillips also noted that, when Andrea Twell had telephoned Keith
Crowley after receiving Jason Morris’s report about Jonathan, she should have
asked more questions about Jonathan’s access to weapons (given Mr Crowley’s
advice that Jonathan had handed his weapons over to him), and should also have
considered a more assertive intervention, since it was by then around 1:00 pm
and the plan for a voluntary admission agreed before 8:00 am that day had still
not been implemented.
970.
Dr Phillips conceded that if Mr Wells had returned to the Crowley home
at mid-morning on the Tuesday and had been asked by Mr and Mrs Crowley for a
bit more time to arrange a voluntary admission, he would have had a difficult
decision to make. The decision would have been difficult because of the
Crowley family’s concern about an involuntary admission involving police, the
family’s presentation as “a caring thoughtful unit who had the best interests
of [Jonathan] at heart at all times”, and the legal and therapeutic preference
for the least intrusive or destructive methods of dealing with mental health
issues. However, Dr Phillips did not agree that Jonathan’s state of being
calm, peaceful and happy meant that it was reasonable to allow more time for a
voluntary admission, suggesting that some further time could have been allowed
but only on the basis of a more assertive approach to Mr Crowley’s plan
for an assessment at Calvary.
971.
Dr Phillips considered that by mid-morning on Tuesday, ACTMH staff had
grounds for wondering whether Keith Crowley would really be able to get
Jonathan to hospital for an assessment; one option for a competent mental
health professional would have been to give the Crowley family a short deadline
for voluntary admission and an indication that if the deadline could not be
met, further action would be taken.
972.
Dr Phillips conceded that Mr Wells’ original plan provided for a morning
visit to the Crowley home rather than necessarily a visit “first thing” in the
morning, but he still thought that an early visit would have been appropriate.
Dr Phillips also conceded that Mr Wells’ report had not identified a Tuesday
morning visit to the Crowley home as taking “absolute first priority”, but
suggested that this was because every mental health worker knows that something
more urgent can always come up, and accordingly Mr Wells would not have
directed that implementing his plan had to take priority over everything else
that ACTMH might have needed to deal with on Tuesday morning.
973.
Dr Telfer, on the other hand, did not see the ACTMH response on the
Tuesday morning as “overriding” Mr Wells’ plan. Rather, he considered that Mr
Wells had allowed for “possible modification” of the plan for the Crisis Team to
go to the Crowley home on Tuesday morning and re-assess Jonathan, although he
said that the Crisis Team would not have been allowed to change the “parameters”
of the plan, which Dr Telfer described as including that Jonathan needed
to go to hospital, voluntarily or otherwise. From this perspective, Dr Telfer’s
view was that Ms Williams had not “jettisoned” Mr Wells’ plan, but had
simply deferred the planned Crisis Team visit and “endorsed” Keith Crowley’s
plan to get Jonathan to Calvary voluntarily. As such, Dr Telfer said, this was
not a departure from acceptable standards.
975.
Dr Telfer said that if Jonathan had been assessed again on Tuesday
morning, the Crisis Team would have concluded that he needed to go to hospital,
but “not necessarily urgently or immediately, or with the assistance of the
police coercively”. (T1696) In particular, it was of paramount importance to
get Jonathan to hospital in the least coercive way. However, Dr Telfer
said, if he had seen Jonathan on the Tuesday morning:
(a) he would have
medicated him immediately with an anti-psychotic to relieve tension, anxiety
and sleep deprivation; and
(b) he would have been
careful to ensure that someone kept a close eye on Jonathan until he reached
hospital.
976.
Thus, while Dr Telfer did not consider that hospital admission,
voluntarily or involuntarily, was quite as urgent as Dr Phillips indicated, he
did see an urgent need for Jonathan to be, at least, medicated to relieve
tension, anxiety and sleep deprivation, and closely supervised.
977.
Both doctors commented on the role of family members in the work of a
mental health unit, and on the difficulty for mental health workers in striking
the right balance between providing proper care and respecting the rights of
patients.
978.
Dr Telfer said that in dealing with the family members of a disturbed
person, it is important for mental health professionals to apply clinical
scepticism as well as compassion, while recognising that family members who are
constantly observing the patient may be able to provide information that is not
available from a professional assessment. Family members may have an emotional
bias towards protecting the patient from what they perceive as harm, which may
include hospitalisation, but they are usually keenly aware of the risks to the
patient as well, and it is common practice for mental health workers to rely on
family members to get a patient to hospital where necessary.
979.
Dr Phillips agreed that a person who is admitted to hospital
involuntarily may feel that they have been betrayed by family members, and
noted that the therapeutic rapport between doctors and their patients may also
be at risk when there is an involuntary admission. However, he said that in
his experience, once a patient returns to normal, he or she appreciates the
need for the treatment that has been given and is often grateful to the doctor.
980.
Dr Phillips said that there are also other reasons why it is desirable
to avoid a person being taken away under restraint, including that the
restraint might be traumatic and might temporarily aggravate the person’s
condition or make the person resistant to treatment. He noted that mental
health legislation strongly favours the adoption of the least intrusive option,
and that there are strong clinical reasons for preferring the least intrusive
option, but said that sometimes involuntary treatment is the only real option,
for instance where the alternative may be serious, such as suicide or harm to
another person. While agreeing that it was important for mental health workers
to respect the position and the views of family members, Dr Phillips noted that
family members are rarely experts in psychiatry and there is always the risk of
misunderstandings.
981.
It is true that the involvement of Jonathan’s family, who were both
apparently responsible in their care of Jonathan, and also strong-minded in
their dealings with ACTMH, complicated ACTMH’s position; however, to the extent
that this may have enabled or induced ACTMH staff to take a relatively passive
role in ensuring that Jonathan received the treatment he needed, it also in my
view required them to take a perhaps uncharacteristically active role in
ensuring that the Crowley family understood exactly what the issues were in
terms of Jonathan’s needs. There is no evidence before me that any staff
member of ACTMH (with the possible exception of Jon Wells) made any effort to
inform or persuade any member of the Crowley family that it was vital that
Jonathan be properly assessed on the Tuesday, however happy and peaceful he
was, and that it was equally vital that he be supervised at all times until an
admission to hospital could be achieved.
982.
Finally, in relation to how ACTMH staff might appropriately have
acted, I note the comment by Sheller JA in Presland at [217], that:
Absent the availability under statute of power to detain the
patient what can reasonably be done to achieve this object may be limited to
advising the acceptance of confinement or medication or other forms of care.
But that at least would be within the scope of the duty.
983.
Counsel for ACTMH argued that this was an issue involving “alternative
reasonable views from well qualified people”, that such a difference of opinion
is not a basis for a plaintiff to win, and that the issue “is quite comfortably
resolved in favour of [ACTMH]”. I do not find counsel’s analysis convincing;
while it is true that the two doctors characterise the ACTMH approach to
Jonathan’s care on the Tuesday in different ways, their underlying views do not
seem to differ very much at all. Both doctors considered that Mr Wells
believed that Jonathan needed to go to hospital on the Tuesday, voluntarily or
otherwise. Both doctors recognised that there were risks inherent in relying
on a lay assessment made by Keith Crowley and communicated to ACTMH by
telephone. Dr Telfer, while not regarding a hospital admission as quite as
urgent as did Dr Phillips, did indicate that Jonathan should on the Tuesday
morning have been both medicated and closely supervised—this implies at least a
visit from the Crisis Team and a clear warning to the Crowley family about
supervision.
984.
Thus, a finding that ACTMH breached its duty of care in failing to
pursue Jon Wells’ plan for Jonathan’s admission to hospital on the Tuesday and
in particular by failing to assess Jonathan again, and to facilitate his
admission to hospital on the Tuesday morning, is available by reference to the
views of both the doctors. In support of such a finding I note:
(a)
my comments about the likelihood of Jonathan running away (at [974]
above);
(b)
that the grounds mentioned by Keith Crowley for not treating Jonathan’s
admission to hospital as a matter of urgency were symptoms that had been
recorded by Jon Wells on the Monday night as part of his assessment that
Jonathan needed hospitalisation (discussed at [1053] below);
(c)
that relying on Keith Crowley to assess the potential for Jonathan to
become a risk to himself or others seems to have been unjustifiable, despite Mr
Crowley’s undoubted intelligence and concern for Jonathan, having regard to his
lack of training and expertise, the failure of ACTMH staff to give him advice
about how to assess that potential, and the difficulties even for mental health
professionals in predicting such things accurately (as noted in Module 106 at [629]
above); and
(d)
that the actions that ACTMH failed to take were all actions that had
been included in the plan developed by ACTMH employee Jon Wells the previous
day, and that there was no evidence suggesting that such action, on the Tuesday
morning, would have involved any “expense, difficulty or inconvenience”, or any
threat to the performance of conflicting responsibilities, that took the planned
actions beyond what could have been done in the normal course of ACTMH’s
activities, using resources intended and available for just such activities.
985.
Accordingly, I find that ACTMH breached its duty of care to Jonathan
in failing to pursue Jon Wells’ plan for Jonathan’s admission to hospital and
in failing to assess Jonathan again and facilitate his admission to hospital on
the Tuesday morning (I note that facilitating does not necessarily imply
achieving but only making easier or helping forward).
986.
ACTMH is said to have breached its duty of care by Jason Morris’s
failure to pass on his observations and concerns about Jonathan to the Crisis
Team as a matter of urgency, and by his failure to pass on his observations and
concerns to Keith Crowley at all.
987.
First, I am satisfied, in the absence of evidence or argument to the
contrary, that Jason Morris as an employee of ACTMH was affected by the duty of
care owed to Jonathan by ACTMH. It is possible to imagine a case in which not
all employees of a medical service provider would owe a duty of care to
patients, but given Mr Morris’s role in the care of patients, the evidence
about his experience and qualifications, and the absence of any evidence of
organisational arrangements that could exclude him from such a duty, I am
satisfied that this is not such a case.
988.
The two allegations of negligence raise slightly different questions and
need to be considered separately.
989.
The two doctors had very different opinions about Jason Morris’s actions
after observing Jonathan with the weapon on Tuesday morning.
990.
Dr Phillips considered that the risks surrounding Jonathan’s behaviour
should have been apparent to Jason Morris as a rehabilitation worker in the
mental health area who had spent some time working in a mental health
hospital. He said that members of a community mental health team, whatever
their disciplines, have a generic responsibility to comment on abnormal
behaviour by any person known to the team, and that Mr Morris’s general expertise
should have been sufficient for him to recognise the risks of a person with a
weapon acting in a very unusual way, especially when the person had a family
member with a psychiatric illness, and even more so when he heard that the
person had been using cannabis and had been seen by the Crisis Team only the
night before.
991.
Dr Phillips’ view does, however, beg the question to the extent that
there is no evidence before me about the team structure adopted by ACTMH or, in
particular, about whether Jason Morris was in fact a member of the same “team”
that had begun to deal with Jonathan; all that emerged at trial was that he was
“part of Woden Mental Health”, and that he did not know Karen Eggins, the
Crisis Team member he spoke to when he did report his encounter with Jonathan.
992.
In Dr Phillips’ opinion, Mr Morris, who was on friendly terms
with the Crowley family, should first have drawn Jonathan’s behaviour to the
attention of his father, and should then have contacted the Crisis Team more
quickly than he did. Dr Phillips conceded that when he prepared his report, he
had thought that Mr Morris’s other task was only to deliver several patients to
a rehabilitation activity rather than to conduct the activity, but after this
was clarified he still considered that Mr Morris should have contacted the
Crisis Team more quickly.
993.
Dr Telfer took a different
approach to Mr Morris’s response to his encounter with Jonathan. In general
terms, a number of the matters that caused Dr Phillips to say that Mr Morris
should have reported the encounter as a matter of urgency were interpreted by
Dr Telfer as providing explanations for why Mr Morris might have regarded the
matter as not particularly urgent.
994.
First, Dr Telfer seemed to assume that Mr Morris’s experience in the
mental health area meant that he might have been less concerned by bizarre
behaviour than ordinary members of the public would have been. He assumed that
Mr Morris had probably seen a lot of bizarre behaviour in his career, and that
he would not necessarily have been alarmed by odd behaviour, even by a person
with a weapon, depending on the broader context (including such things as the
setting and location of the behaviour, the nature of the weapon and how much
damage it could do, and whether having the weapon was unlawful). Dr Telfer
noted that he personally would probably regard it as histrionic if one of his
patients raised a fist at him. He said that talking to oneself is not a
symptom of psychosis, and that gestures have different meanings in different
contexts; for instance, holding up a sword to show it to someone else may be
different from waving it around in a threatening manner.
995.
Dr Telfer said that in Jonathan’s case, if Mr Morris had known that
Jonathan had been using cannabis, Mr Morris wouldn’t necessarily have reacted
in the same way to Jonathan’s behaviour as did the members of the public who
observed him later. If he had not felt menaced, fearful, alarmed or
threatened, and had no reason to believe that there was a risk of Jonathan
causing harm or assaulting anyone, then, even knowing that there was something
wrong with Jonathan, he had no reason to report his observations urgently to
the Crisis Team; on the other hand Dr Telfer did concede that it would have
been best practice for Mr Morris to report his observations as soon as
possible.
996.
Secondly, Dr Telfer expressed the opinion that Mr Morris’s knowledge of
the Crowley family, and Mark’s advice that Jonathan had already been assessed
by the Crisis Team, as well as Dr Telfer’s assumption that Jonathan’s brother
Mark was aware of the sword that Mr Morris had seen Jonathan carrying, might
have led Mr Morris to believe that the matter was adequately known to
Jonathan’s family and was also being managed by other staff of his own
organisation. In these circumstances, Dr Telfer said, Mr Morris could have
believed that there was no particular urgency to report his own observations.
Dr Telfer’s assumption about Mark’s knowledge of the sword seems to have been
wrong; Mr Morris said in evidence that he and Mark didn’t discuss the weapon.
However, Mark’s assumed knowledge of the weapon is a fairly insignificant
aspect of Dr Telfer’s opinion and so the incorrect assumption does not detract
significantly from Dr Telfer’s opinion.
997.
Dr Telfer described hypothetical circumstances in which Mr Morris should
have reported his observations to the Crisis Team as a matter of urgency,
being:
(a) if he had perceived a menace or threat in
Jonathan’s behaviour;
(b) if he had thought Jonathan was displaying
psychotic symptoms;
(c) if he had seen Jonathan
talking to himself, waving the sword around, glaring with a fixed stare, and
holding up his fist; or
(d) if Jonathan had been his patient.
998.
Dr Telfer’s assumption that Mr Morris did not think Jonathan was
displaying psychotic symptoms is inconsistent with my finding at [168] above
that Jason Morris did refer to “psychotic symptoms” when he eventually reported
his observations to the Crisis Team shortly before 1:00 pm.
999.
Dr Telfer said that, not knowing about the norms for Jonathan’s
behaviour or his relationship with his family, or for Mr Morris’s dealings with
the family or with Jonathan’s brother Mark, he was unwilling to say that Mr
Morris should have spoken to the family. He conceded, however, that in
equivalent circumstances he probably would have done so, and that, while
raising the matter with the family would have involved Mr Morris stepping
outside his role as a rehabilitation officer, it would not have been
unreasonable to do so. He also conceded that if Mr Morris’s only other duty
was to take a small group of people to a mini-golf game, he thought it was
inappropriate not to have contacted the Crisis Team earlier than he did.
(a)
he did not personally find Jonathan’s behaviour threatening, only a bit
odd;
(b) when
he raised the matter with Jonathan’s brother Mark before driving away from the
Crowley home, he learned that his colleagues in the Crisis Team were aware of
Jonathan’s condition, had already made a preliminary assessment of him, and had
planned an admission for him on that morning; and
(c)
he had his own immediate responsibilities to another group of ACTMH
clients.
1001.
In those circumstances I do not consider that Jason Morris breached
ACTMH’s duty of care in going on with his own work and assuming that Jonathan’s
care was being properly managed by the Crisis Team and that he did not need to
contact the Crisis Team.
1002.
As to the separate failure by Mr Morris to speak to the Crowley family
before he drove off with Mark, I note that going to the Crowleys’ front door
and telling a family member that he had just seen Jonathan behaving oddly and
with a weapon would have taken only a couple of minutes, and it was a couple of
minutes that might easily have been spared; Mark Crowley was the first person
to be picked up that day, there was no need to keep any other clients waiting
in the van while he spoke to Crowley family members, and Mr Morris had not yet
reached the point of being responsible for supervising the whole group at the
golf course, which might have required him to remain focused on the group
rather than allowing him to distract himself by making phone calls.
1003.
My finding that Mr Morris was aware of the Crisis Team’s involvement in
Jonathan’s care was the basis on which I have concluded that Mr Morris
legitimately did not see a need to contact the Crisis Team urgently about
Jonathan’s behaviour, but that knowledge has a different impact in relation to
the Crowley family. Without knowing the details of the Crisis Team’s
involvement, Mr Morris had no reason to believe that telling the Crisis Team
that Jonathan was behaving oddly, outside his house, with a weapon, would add
usefully to their management of his crisis. In contrast, Mr Morris might
reasonably have assumed:
(a)
that if a hospital admission was planned for Jonathan but he was still
at home, someone should have been keeping an eye on him but apparently wasn’t;
and
(b)
therefore that his odd behaviour should be brought to the attention of
the family, who were presumably the people still taking responsibility for him.
the information Mark had given me was that his father was,
you know, kind of keeping an eye on how things were going, developing. If there
was a need to have more involvement, less involvement, it was just to provide
additional information.
1005.
The cross-examination continued:
In that answer, I respectfully suggest, Mr Morris, you’ve
identified the real reason why at least for a moment you thought you’d better
speak to his father - and that is, “If his father was meant to be keeping an
eye on him, his father should know about what I’ve just seen”. That is the way
your mental process went, isn’t it?---Not that I recall.
1006.
I am satisfied, given Mr Morris’s explanation set out above and despite
his non-committal answer to the following question, that Mr Morris did, however
briefly, recognise a risk arising from what he had seen and what Mark Crowley
had told him, and did contemplate doing something about it.
1007.
I am satisfied that, even if Mr Morris was not a member of the Crisis
Team, ACTMH’s duty of care to Jonathan encompassed a duty on the part of its
staff to report, to an appropriate person, a person known to be a Crisis Team
patient about to be admitted to hospital who was both behaving oddly and
apparently not being properly supervised.
1008.
Counsel for ACTMH relied on Philips v William Whiteley Ltd
[1938] 1 All ER 566 to argue that what could be expected of Jason Morris was
limited by his role as a rehabilitation officer and certainly did not include
giving psychiatric advice. The case cited involved a woman who had contracted an
infection after having her ears pierced by a jeweller; Goddard J held that even
though the jeweller was performing a minor surgical procedure, the standard of
care expected of him was not the same as the standard expected of a surgeon.
Accepting the principle that the standard of care expected depends on the role
of the person concerned, I am nevertheless not convinced that the duty I find
applicable to Jason Morris, that is the duty to report to an appropriate person
(in this case to responsible family members) the odd unsupervised behaviour of
a person who to his knowledge is intended by his ACTMH colleagues to be admitted
to hospital for psychiatric assessment that day, is a duty that cannot properly
be imposed on a rehabilitation worker employed by a mental health service.
1009.
Mr Morris’s recognition of the reasons for concern about Jonathan’s
behaviour is consistent with the fact that when he dropped Mark home some time
later, he encouraged Mark to tell his father what Mr Morris had seen. Keith
Crowley’s evidence was that Mark had mentioned Mr Morris’s observations to him,
but he did not specify when, and the implication was that this might have
happened only after Jonathan was shot. I am satisfied that once Mr Morris
became aware that Jonathan was a current patient of the Crisis Team, he did owe
a duty of care to pass on to the Crowley family information relevant to
Jonathan’s care at a point at which Jonathan, as a patient of ACTMH, had been
left in the care of his parents.
1010.
Accordingly, I find that Jason Morris breached ACTMH’s duty of
care to Jonathan in failing to pass on to the Crowley family the odd,
unsupervised behaviour of a family member who to his knowledge was already the
subject of an ACTMH plan for admission to hospital.
1011.
The plaintiff says that ACTMH breached its duty of care to Jonathan in
its handling of the information it had about Jonathan and his condition. The
most significant issue arises from the failure of ACTMH staff to respond
properly to the police request for information about a man with a sword and
writing on him. However it is also claimed that ACTMH was negligent in not
passing on Jason Morris’s report to the police in accordance with the MoU between
ACTMH and the AFP, and (by the police for the purposes of their cross-claim)
that ACTMH was negligent in failing to understand the significance of Jason
Morris’s report and generally failing to act on it properly.
1012.
The claim that ACTMH breached its duty of care to Jonathan by not
telling the police of Jason Morris’s report in accordance with the MoU is
easily disposed of. The relevant duty of care is the doctor-patient duty of
care to Jonathan; whatever the real nature of the obligations owed by the
parties to the MoU to each other, I cannot see that of themselves they form any
part of the duty owed by ACTMH to its patients. As discussed at [950] above,
the doctor-patient duty of care owed to Jonathan might well have extended to
the reporting of information to the police in certain situations, being
situations in which Jonathan’s interests would have been served by such
reporting to the extent necessary to exempt ACTMH from the restrictions imposed
on it by the Health Records Act. However, if reporting information to
the police was part of ACTMH’s duty to Jonathan, that resulted from his
position and the doctor-patient relationship, not from ACTMH’s arrangements
with the AFP.
1013.
I note also that the relevant provision of the MoU (numbered as 2.1 at [209]
above) does not even purport to impose an obligation on ACTMH, but merely to
set out a process by which ACTMH can make urgent referrals to police. Given
that by the time Crisis Team members became aware of Jason Morris’s
observations, the episode (apparently never very dramatic) had been resolved
for two hours, it is hard to see that, in the abstract, this would have
justified an urgent referral to police, or produced anything like an urgent
police response. Of course, if such a referral had enabled the police to
identify Jonathan, it might have made a difference—but the fact that such a
referral might coincidentally have helped to avoid the shooting does not
establish that a referral in those circumstances was in fact contemplated by
the MoU, or that a failure to make it breached a duty of care to Jonathan.
1014.
The claim that ACTMH breached its duty of care in its response to Jason
Morris’s report was the subject of comment by Dr Telfer, who initially said
that not contacting the Crowley family for 35 minutes after that report was
received was “not entirely unreasonable” having regard to Mr Morris’s report of
Jonathan’s condition. In support of this opinion he noted:
(a) that only Mr Morris’s
reference to Jonathan having a samurai sword was new information beyond what Mr
Wells had reported on the previous night; and
(b) that the lack of any
violence or harm to others in Jonathan’s medical history was relevant, since
psychosis as such is rarely associated with violence to others, and previous
aggression is a much better predictor of violence than a psychotic episode.
1015.
Dr Telfer’s reasons included some incorrect factual premises,
specifically that only Mr Morris’s reference to the sword was new information,
and that there was a lack of violence in Jonathan’s history. Mr Morris’s
reference to “psychotic symptoms”, as shown in the ACTMH record of his call, is
technically new, since Jon Wells’ report implies rather than specifies a
diagnosis of psychosis, but for the reasons noted at [964] above I am satisfied
that Jason Morris’s reference to psychotic symptoms was not genuinely new
information. What is explicit in Mr Wells’ record is a reference to the family’s
report that “when Jon is coming off marijuana he is usually angry and
aggressive, punching holes in walls as he demands money”, indicating that there
was not in fact an absence of violence in Jonathan’s history.
1016.
Dr Telfer did concede that staff should have been concerned by the
reference to the samurai sword; he said that this did not require action within
a couple of minutes, but he also said that when Keith Crowley was contacted, he
should have been asked to check where Jonathan was and to check whether he had
any weapons.
1017.
Dr Telfer also said that if, after contacting Keith Crowley, ACTMH staff
had made the connection between Jonathan and the police enquiries about a man
with a weapon, they should not have accepted Mr Crowley’s assurances that
Jonathan was at home and had no weapons; given that I have found that Andrea
Twell heard about the police inquiry shortly after she had called Mr Crowley,
the import of Dr Telfer’s view is that after learning about the police question
and making the connection with Jonathan, an ACTMH staff member should have
contacted Mr Crowley again and quizzed him more carefully about Jonathan’s
behaviour and his access to weapons.
1018.
I am satisfied that ACTMH’s doctor-patient duty of care included a duty
to deal appropriately with information relevant to Jonathan’s status as a
patient. Putting aside the question whether Ms Twell’s call to Keith
Crowley was sufficiently timely, I am convinced by Dr Telfer’s view that
Ms Twell should have questioned Mr Crowley far more carefully than she
apparently did about Jonathan’s exact whereabouts and about the scope and
currency of Mr Crowley’s advice that Jonathan had handed over his weapons,
and in particular that if necessary, a second call should have been made for
that purpose after receipt of the police inquiry. Nor has anyone put a
contrary view on those matters.
1019.
The two doctors agreed that ACTMH had not responded properly to the
police request for information about a man with a sword.
1020.
Dr Phillips said that in attempting to answer the police inquiry, Crisis
Team members should have asked themselves two questions, being:
(a) is there someone who has
been causing problems or concerns in the last 24 hours? and
(b) are there any of our
patients with chronic conditions who have recently become seriously unwell?
1021.
Dr Phillips suggested that this would not describe a large group, noting
that a community mental health service might have only three or four clients in
any 24-hour period with an acute disturbance who had not been fully assessed
and had the potential to be a risk. Dr Phillips did not put a figure on the
number of long-term patients who might recently have become seriously unwell,
and nor did he identify the size of a community that might produce three or
four clients with acute disturbances in a 24-hour period; however, no-one
challenged the implicit suggestion either that community mental health services
in Australian cities service roughly similar populations or alternatively that
Dr Phillips was specifically aware of the size of the population serviced by
the Woden Mental Health Team.
1022.
Dr Phillips noted, however, that if Jonathan’s condition was regarded as
serious enough for Mr Wells to have gone out “at 9 o’clock at night to assess
him” and to report a “first episode psychosis”, Jonathan should have been taken
into account by ACTMH in responding to the police enquiries. As already noted
at [961] above, Jon Wells’ record did not explicitly provide even a provisional
diagnosis of psychosis, but the implications of his assessment would, I am
satisfied, have been clear to his colleagues.
1023.
Dr Phillips noted that the various phone calls taken by Jenny Williams
and Karen Eggins, mentioning swords in the possession of people who were or
might have been mental health clients, should have been shared within the team
so as to enable a possible connection to be identified. He said that a man
with a sword is not an everyday event even for a mental health team, and in
those circumstances it would not have been unreasonable for ACTMH staff to
check their records and make the connection between Jonathan and the man with
the sword. At that point, he said, someone should have called the police back
as a matter of urgency, especially in relation to Jonathan’s recorded
significant dislike of police, because that put the police at risk in dealing
with him.
1024.
Dr Telfer’s evidence on this topic was somewhat confusing. He said that
the Crisis Team members should have shared the information that the police were
looking for someone with a sword, and made the connection with their collective
knowledge (that there was a patient suffering a psychosis who had a lethal
weapon and did not get on with police), to ensure that information was passed
on to police as quickly as possible. The team should have made these
connections, and should have advised the police urgently, especially about
Jonathan’s significant dislike of police.
1025.
However, he also said that as long as they had not made the connection
between Jonathan and the man being sought by police, members of the Crisis Team
had no reason to suppose that Jonathan was a danger to others. This does not
seem to be correct. Even if the fact that police were looking for a person
with a sword had been linked with Jonathan, this would not seem to have added a
major new element to the worrying information that ACTMH already had about
Jonathan, namely that he appeared to be suffering a psychosis, that there had
been previous aggressive and angry behaviour, and that he had been seen
unsupervised and with a sword. I am satisfied that, even without knowing that
the police might have been looking for Jonathan, ACTMH knew quite enough about him
to be concerned that he might be a danger to others.
1026.
Dr Telfer also pointed out, however, that the particular information
that Jonathan did not get on with police would not necessarily have required
the police to be any more cautious than they should in any case have been in
dealing with any psychotic person who had a lethal weapon. One of the
fundamental principles taught to police in relation to dealing with people with
mental illnesses or disorders is that such people may be unpredictable (see for
instance at [630] above). Even without any specific information about Jonathan’s
attitude to police, the police should always have been aware of the possibility
that their approach would provoke a negative response.
1027.
Dr Telfer was also persuaded by counsel for the police to agree
generally with the proposition that:
if a Mental Health authority has undertaken to provide
important information in respect of its patients to a police force under a
formal agreement ... the intended recipient of that information is more
vulnerable in dealing with a psychotic patient who is known to the Mental Health
authority than the police would be if the patient were not known.
1028.
Counsel was keen to establish police vulnerability, presumably for
purposes related to the respective liabilities of the several defendants;
however Dr Telfer’s agreement to this rather obscure proposition does not make
it either comprehensible or convincing.
1029.
I have found at [242] above that ACTMH’s failure to respond properly to
the police inquiry was due to Andrea Twell’s belief that in her then recent
conversation with Keith Crowley, she had established that Jonathan was at home
safe and without weapons. Mr Crowley could not honestly have made these exact
assertions to Ms Twell at that point, and there is no evidence that he did
so. Ms Twell should not have relied on whatever more general statements might
have been made to her (for instance, it is possible that Mr Crowley said that
Jonathan was “at home” in the sense that he had not yet been taken to hospital)
as a basis for not bothering to pursue, either with the AFP or with Mr Crowley,
the possibility that Jonathan was the person who was, or had been, at large in
Chapman with some kind of weapon. As a patient, Jonathan had been recognised
as a person whose presentation and likely diagnosis required an assessment of
the risks of him harming himself or others. Ms Twell’s comments in her police
interview were quite inadequate to explain why such a potentially vital piece
of information as the possibility that Jonathan was the person being sought was
not pursued with the Crowley family, and was casually withheld from police
without any inquiry, by any of the ACTMH staff involved, about the
circumstances that had led the police to ask about a man with a weapon. I have
already noted at [956] above that ACTMH should have been well aware of the
dangers to mentally disturbed people who come to police attention.
1030.
There is no evidence before me to suggest that there was any kind of
problem of resource shortages or conflicting priorities that explained the
failure by ACTMH staff to treat the police inquiry seriously; the statements of
ACTMH staff that are in evidence suggest that staff had things to do but that
no-one was under any particular pressure.
1031.
I find that by the failure of ACTMH staff, namely Andrea Twell
and her colleagues, to pursue the reasons for the police interest in the person
the police had asked about, and to raise the possibility that Jonathan was the
person police were interested in, with the police, either immediately or after
pursuing that possibility with the Crowley family, ACTMH breached its duty of
care to Jonathan as its patient.
1032.
The plaintiff alleged negligence on the part of ACTMH constituted by a
failure to accurately keep registers of persons in relation to their mental
health, a failure to register Jonathan in ACTMH records and a failure to
register Jonathan in records so as to enable a quick and accurate response to
enquiries.
1033.
To the extent that these alleged breaches stand separately from the
ACTMH failure to identify Jonathan to police, I cannot see why record-keeping
to the extent necessary to enable proper patient care should not be covered by
the common law duty of care to a patient that I have identified. However,
there is evidence before me of quite detailed record-keeping by ACTMH (albeit a
lack of explanation of how aspects of the record-keeping system worked). There
is evidence of detailed records about Jonathan, his circumstances and his needs
(subject only to the inconsistencies within and between the records about
whether or not Jonathan was suffering a first onset psychosis), no evidence
that either the record-keeping arrangements or the capacity for staff to use
those records contributed to any failure to pass on information about Jonathan,
and evidence that not only was all relevant information entered in ACTMH
records but that relevant staff were aware of the information.
1034.
The problem was not the recording or accessibility of the information
but the failure of individual staff to take proper steps to check that all the
information they had was confirmed and passed on to all the people
(specifically the Crowleys and the AFP) to whom it could and should have been
passed on. This failure cannot be attributed to record-keeping failures. That
is, assuming there was a duty of care in relation to maintaining and using
record-keeping systems in the interests of patients, that duty was not
breached, and needs no further consideration.
1035.
The plaintiff says that ACTMH was negligent in its failure to have
protocols and manuals, and to provide lectures and training, dealing with how
AFP officers in community policing should deal with persons acting in an
aberrant manner, and in its failure to train or advise AFP officers in the
appropriate use of OC spray on persons acting in an aberrant manner.
1036.
This allegation was not supported by evidence or submissions, so I say
no more about it, except to note that it is hard to see how a duty of care owed
to Jonathan, whether as a patient or as a possible subject for involuntary
admission, could have encompassed a duty, arising long before he acquired any
such status, to provide advice and training to AFP officers in general.
1037.
I have already found that Jonathan’s injury was caused by the negligence
of the police, and that ACTMH breached its duty of care to Jonathan in several
respects in connection with Jonathan’s psychotic illness and his behaviour on
the Tuesday. The question is whether any of ACTMH’s breaches were also causes,
in legal terms, of Jonathan’s injury.
1039.
The kinds of acts that have been held to break a chain of causation that
has survived the “but for” test were identified by Smith J in Haber v Walker
[1963] VR 339 at 358 as:
(a) human action that is
properly to be regarded as voluntary, or
(b) a causally
independent event the conjunction of which with the wrongful act or omission is
by ordinary standards so extremely unlikely as to be termed a coincidence.
1040.
In Luntz H, Hambly D, Burns K, Dietrich J, Foster N, Torts: Cases and
Commentary (6th edition, Lexis Nexis Butterworths, 2009) it is
suggested that “Whether as a species of ‘coincidence’ or as a separate
category, subsequent negligent conduct may in some instances sever the causal
connection”, but most of the authorities cited (including March v Stramare)
involve cases in which subsequent negligence (even “a very marked departure
from the standard of reasonable care” as the authors at 286 describe the
subsequent negligence in March v Stramare) did not in the circumstances
sever the causal connection.
1041.
In Haber v Walker Smith J explained the test of whether human
action was “properly to be regarded as voluntarily” when he said at 358-359:
In some contexts expressions such as “voluntary act” and “act
of volition” are construed so widely as to cover any act which cannot be said
to have been reflex or done without understanding of its nature and quality or
due to irresistible impulse. In relation, however, to the principle of
causation now in question, the word “voluntary” does not carry this wide
meaning; and for an act to be regarded as voluntary it is necessary that the
actor should have exercised a free choice. This of course, is a conception
involving question of degree: ... . But if his choice has been made under
substantial pressure created by the wrongful act, his conduct should not
ordinarily be regarded as voluntary: (citations omitted).
1042.
I am satisfied that the actions of the police officers in getting out of
their car and starting a confrontation with Jonathan were voluntary in one
sense (while noting SC Willis’s comment about his reflex being to stay with his
partner); however I do not consider that they were voluntary so as to break the
chain of causation. That conclusion is in part based on the view that the
police officers acted under substantial pressure created by ACTMH’s wrongful
act in permitting the development of a situation in which Jonathan, in an
increasingly disturbed and dangerous condition, was at large in the streets of
Chapman. It also reflects my view that although the acts of the police
officers in getting out of the car immediately, calling on Jonathan to drop his
weapon, and so on, were voluntary acts, the act of generating a confrontation
with Jonathan that within seconds deteriorated to the extent that SC Pitkethly
felt obliged to shoot Jonathan to save his own life, was clearly not a
voluntary act in the sense of being intended by either police officer. The
wrongfulness of their acts was undoubtedly negligent rather than intentional.
Finally in this context I note the comments of Mason CJ in March v Stramare
when he said at 517-518, referring to Chomentowski v Red Garter
Restaurant Pty Ltd (1970) 92 WN (NSW) 1070:
The fact that the intervening action is deliberate or
voluntary does not necessarily mean that the plaintiff’s injuries are not a
consequence of the defendant’s negligent conduct. In some situations a
defendant may come under a duty of care not to expose the plaintiff to a risk
of injury arising from deliberate voluntary conduct or even to guard against
that risk ... To deny recovery in these situations because the intervening
action is deliberate or voluntary would be to deprive the duty of any content.
1043.
As to coincidence, there is in my view no sustainable argument that the
police actions were causally independent of ACTMH’s actions or that they were
in any sense coincidental upon the actions that led to Jonathan being at large
in the streets of Chapman causing concern to members of the public. The police
presence in Doyle Terrace, and the police response to Jonathan, was a direct if
not immediate result of the situation that ACTMH’s negligence had allowed to
develop.
1044.
The remaining question then is whether the police negligence, even if
not “voluntary” or coincidental, should be held to break the chain of
causation. As mentioned at [1038] above the question seems to come down to one
of common sense and policy.
1045.
The High Court in Chapman v Hearse (1961) 106 CLR 112, focusing
on whether negligent driving that killed a doctor who was attending to a victim
of a road accident was a reasonably foreseeable consequence of the road
accident, noted at 120 that reasonable foreseeability does not require the
foreseeability of “the precise sequence of events” which caused the damage but
only the foreseeability of “a consequence of the same general character”, and
at 125 adopted the proposition from Ferroggiaro v Bowline (1957) 64 Am
LR 2d 1355 that:
the fact that the intervening act of a third person is a
negligent one will not make it a superseding cause of harm to another for an
injury which the original actor helped to bring about if the original actor at
the time of his negligent conduct should have realized that a third person might
so act.
1046.
The negligence of ACTMH resulted in Jonathan being, while in the grip of
a developing psychotic episode, unsupervised and at large in Chapman by 1:30 pm
on the Tuesday, and the negligence of ACTMH left police unaware of the identity
or likely diagnosis of a person whom they were pursuing as a real threat to the
safety of Chapman residents that day. I am satisfied that both of those
outcomes were genuine contributors to the situation in which the police found
themselves when Senior Constables Pitkethly and Willis came across Jonathan on
Tuesday afternoon and, through negligence of their own, turned the situation
into a dangerous confrontation. As already mentioned, I am also satisfied that
ACTMH should have realised the risks arising from police action in relation to
a mentally disturbed person. I cannot see any reason of common sense or policy
why the agency responsible for providing mental health services in the ACT,
being the agency with the greatest expertise in providing such services in the
interests of both sufferers and the community in general, should escape
liability where that agency has negligently left a less well-equipped agency,
the AFP, to address a difficult and dangerous situation that ACTMH could and
should have prevented from arising. Accordingly, I am satisfied that the
negligence of the police has not broken any chain of causation connecting ACTMH
with Jonathan’s injuries.
1047.
The next step in the inquiry is whether such a chain of causation exists
in relation to any of the particular breaches of duty pleaded against ACTMH.
(a)
the failure to pursue Jonathan’s admission to hospital on Tuesday
morning;
(b)
Jason Morris’s failure to report Jonathan’s odd behaviour to the Crowley
family; and
(c)
the failure of Ms Twell and her colleagues to pursue the reasons for the
police interest in the person the police had asked about, and to raise the
possibility that Jonathan was the person police were interested in, with the
police, either immediately or after pursuing that possibility with the Crowley
family.
1049.
Counsel for ACTMH says that the Crisis Team’s failures on Tuesday
morning cannot be said to have caused the damage suffered by Jonathan. His
argument is that:
(a) the Crisis Team would
only have made a difference if they had detained Jonathan; and
(b) if the Crisis Team had returned to the Crowley home on Tuesday
morning, Jonathan would not have been in a condition that justified involuntary
detention and the Crisis Team would have had no practical choice but to leave
again.
1050.
In support of this argument counsel points to what he calls the “resolute
opposition” of Mr and Mrs Crowley to any
involuntary removal of Jonathan.
1051.
This argument cannot be sustained,
for several reasons. First, I am satisfied that on Tuesday morning
Jonathan would probably have been in a condition justifying involuntary
detention. In reaching that conclusion I note
that in his Module B report made on Monday night, Jon Wells recorded the
following:
[Jonathan] is euphoric and graniose [sic], and states that he
feels better than he has ever felt. He stated that he has no intention to self
harm and expressed universal love.
1052.
He summarised his report as follows:
Jon is a 34 year old single male living with his parents and
brother. He is unemployed and on a Disability Support Pension. He has been a
heavy marijuana smoker for many years but has had no previous psychotic
episode. He apparently believes he is Jesus and that he has to fix the world.
He announced this to his father by waking him from his sleep early this morning.
He stated that he feels better than he ever has and that he has thrown away his
marijuana because he no longer needs it. Jon appears totally convinced of his
delusions and his parents and I agreed that he is unlikely to agree to
psychiatric treatment. I advised them that I considered an involuntary
admission would probably be required to assess and control risk and commence
treatment, after which he could possibly become a voluntary patient or be
managed in the community. I advised that if it was necessary to take Jon to
hospital involuntarily police would have to be involved and suggested that CATT
could visit after about 9am tomorrow to see if we could get him to agree to
come to hospital voluntarily for a psych reg assessment. I advised them that
if Jon was unwilling to go voluntarily we would most likely leave and return
with police to take him to hospital.
Family stated that they would prefer that police not be
involved but were aware that they may be required.
PLAN: AM dom to assess. P/C to father (Keith) on his mobile
(0421 xxxxxx) first.
1054.
There has been no challenge to the soundness of Jon Wells’ assessment on
Monday night.
1055.
Neither doctor criticised the actions of Mr Wells in his visit to the
Crowley home on Monday night, his diagnosis, his report, or the treatment plan
he laid out for the Tuesday morning. Both doctors noted that Mr Wells had
indicated that Jonathan would have to go to hospital for assessment, whether
voluntarily or involuntarily. Dr Phillips noted the difficulties of a
late-night involuntary admission and said that it was reasonable for Mr Wells
to treat Jonathan’s admission as an urgent matter for the following morning.
1056. Dr
Telfer said that he could not infer from Mr Wells’ approach that he had formed
the view that the conditions for an involuntary admission under s 37 of the ACT
Mental Health Act had been satisfied in relation to Jonathan.
1057.
I cannot see that it matters whether Mr
Wells had at that point formed a definite view that an involuntary admission
was authorised by s 37; the important thing was that admission, if necessary
involuntarily, was what he had indicated to his colleagues in ACTMH, and they
should not have ignored that indication without specifically querying it and
then (if necessary and by an appropriately authorised or qualified person)
making a new, considered decision. Since the evidence is that on Tuesday
morning Jonathan was in very much the same condition that Jon Wells had
previously assessed as probably requiring an involuntary admission, I am
satisfied on the balance of probabilities that on Tuesday morning a proper
assessment of Jonathan would also have found him to require admission,
involuntarily if necessary.
1058.
Submissions were made that if Jonathan had been found to need
involuntary admission, with police involvement, the likely outcome would have
been the same, that is that he would in the end have been shot by the police.
I am, however, satisfied that even if Jonathan had still had his kendo stick at
the point when police arrived to effect an apprehension with a view to
involuntary admission to hospital, the police operation:
(a)
would have been properly planned and resourced;
(b)
might have involved some use of force; but
(c)
noting the limited scope for doing serious damage with a kendo stick
(see [760] above), would not have ended with police officers feeling obliged to
use their guns.
1059.
Even if I am wrong in concluding that on Tuesday morning a proper
assessment of Jonathan would have found him to require admission, involuntarily
if necessary, that is not the end of the matter. While Mr Wells had recorded a
view that an involuntary admission would probably be required, his written
report proposed that the Crisis Team “could visit after about 9 am tomorrow to
see if we could get him to agree to come to hospital voluntarily for a psych
reg assessment”. That is, the purpose of the first visit was to try to arrange
a voluntary visit to hospital. Mr Wells had advised Jonathan’s parents that
only if Jonathan refused to go voluntarily would the Crisis Team “most likely
leave and return with police to take him to hospital”. A refusal by Jonathan
to go voluntarily would therefore not have brought the Crisis Team’s task to an
end as submitted by counsel for ACTMH, it would simply have required moving to
the next stage as envisaged by Mr Wells.
1060.
As to the significance of the views of Jonathan’s parents, the record
available to the Crisis Team on Tuesday morning said that “they would prefer
that police not be involved but were aware that they may be required”. Those
views cannot fairly be described as amounting to “resolute opposition” to any involuntary removal of Jonathan. It cannot
be said that if the Crisis Team had gone to the Crowley home on Tuesday
morning, “they would have had no practical choice but to leave again”.
1061.
I am also satisfied on the balance of probabilities that if on Tuesday
morning Jonathan had not been in a condition justifying involuntary detention,
and if, as seems likely, he had refused a voluntary admission to hospital, a
visit and assessment by the Crisis Team would nevertheless have alerted the
Crowley family to the need for continued supervision of Jonathan until his
condition was resolved one way or the other. Even if nothing explicit had been
said, a Tuesday morning insistence by the Crisis Team on pursuing the plan
developed by Mr Wells on Monday night would have ensured that the Crowley
family were not left on Tuesday morning believing that it was safe to leave
Jonathan to his own devices that day until it was convenient to try to take him
voluntarily to Calvary hospital.
1062.
Counsel for ACTMH conceded that the Crowley family were entitled to
infer, from ACTMH’s response to the early phone call on Tuesday morning, that
deferring the ACTMH visit was a safe thing to do. In contrast, a Crisis Team
visit on Tuesday morning (even one that did not result in them returning with
police as foreshadowed by Mr Wells on Monday night), and subsequent phone
contacts to check progress, would have reinforced to the Crowley family Mr
Wells’ Monday night view that Jonathan needed an assessment in hospital
(however that was to be achieved). I am satisfied on the balance of
probabilities that in the latter situation, Jonathan’s parents would have
sought to ensure that Jonathan was not thereafter left unsupervised until his
condition had resolved.
1063.
There would have been two possible outcomes of such efforts on the part
of Jonathan’s parents.
1064.
One possibility is that they would have succeeded in their attempts to
supervise Jonathan, such that he would not by 11:30 am have been wandering the
streets of Chapman without his parents’ knowledge and behaving in a way that
led various members of the public to report his activities to the police, and
would not by 1:30 pm have been the subject of a major search by police officers
concerned about his potential to do serious harm.
1065.
The other possibility is that despite his parents’ efforts, Jonathan
might have escaped their supervision and disappeared, whether in anticipation
of a visit by the Crisis Team or simply because he felt like wandering the
streets. However, the circumstances in that case would have been different in
important respects from the circumstances in which he was in fact at large in
Chapman on Tuesday afternoon. In particular, both his parents and in due
course the Crisis Team would have recognised him as an “escapee” with the
potential to cause concern to members of the public. Even if he was not found
by his parents, or reported to the police, before he separately became an
object of police attention, then at the very least ACTMH would have been able
to provide more useful advice to the police when asked. In either circumstance,
I am satisfied that police would have handled his apprehension differently and
in a way that made a shooting improbable.
1066.
Furthermore, if the Crisis Team had pursued Jonathan’s admission to
hospital conscientiously, they would not simply have abandoned any role in
Jonathan’s care on Tuesday morning without satisfying themselves that he was in
a fit state to take responsibility for himself, or to be looked after entirely
by his parents despite their lack of expertise and experience in managing
sufferers of psychosis.
1067.
One of the medical experts, Dr Phillips, gave evidence to the effect
that Jonathan’s reported calm and peace on the Tuesday morning should have been
seen by ACTMH not as a sign of impending recovery but as possibly the “prodrome”
or warning symptom for a sudden burst of psychotic behaviour in which the
patient becomes a danger to himself or others. This suggestion was rejected by
Dr Telfer in his second report, tendered after he had given evidence without
being cross-examined about Dr Phillips’ evidence. However, both doctors
expressed their opinions on the basis that the reported euphoria, peace and
calm were a change from Jonathan’s previous behaviour. It may be true that
Jonathan was calmer and happier than at some points in the previous few days,
but as noted at [1053] above, his euphoric state of mind was the same as that
observed, and recorded, by Jon Wells on the Monday night. For that reason it
should not have been interpreted by the Crisis Team as a sign that his
condition was changing, and should not have been accepted in support of Keith
Crowley’s view that there was no urgency for the Crisis Team to pursue Jonathan’s
admission to hospital. In those circumstances I do not need to make any
finding about what might be signified by a euphoric state in a person suffering
a psychotic episode.
1068.
It is likely that if Jason Morris had, before driving away with
Mark, alerted Jonathan’s parents to the fact that Jonathan was outside the
front of the house, behaving oddly and waving a stick at people (even a stick
which Keith Crowley did not appear to regard as a dangerous implement), they
would have responded by supervising him more carefully and possibly even by
re-engaging with the Crisis Team. At trial, Mr Crowley said that if Jason
Morris had come in and said that Jonathan was outside “ with what looks like a sword and he’s behaving in a strange way”, he
would have gone straight out, assessed what was wrong, confiscated the weapon
and called the Crisis Team.
1069.
I have found that Jason Morris did not breach ACTMH’s duty of care in
his delayed reporting of Jonathan’s behaviour to the Crisis Team. In case I am
wrong about that I note the submission by counsel for ACTMH that an earlier
report from Jason Morris would not have made any difference to ACTMH, because
even if Ms Twell had spoken to Keith Crowley earlier than she did, the outcome
of the conversation would have been the same.
1070.
This submission appears to be correct. The real problem with Ms Twell’s
phone call to Mr Crowley was not its timing but its contents. I cannot
identify any aspect of the relevant events or circumstances that would probably
have caused the conversation to be different in a significant way if it had in
fact taken place earlier in the day. I note in particular that at the time Mr
Morris made his report, Mr O’Connor was still at the Crowley home having lunch
with Mr and Mrs Crowley; if Ms Twell had contacted Mr Crowley as soon as
she was aware of Jason Morris’s report, thus interrupting lunch with his
visitor, she might have had the same conversation with Mr Crowley, or perhaps a
shorter one; it seems unlikely that the conversation would have been prolonged,
or otherwise different, in any way that would have led to the emergence of
facts that should have alerted either of them to the urgent need to check on
Jonathan’s whereabouts and condition or to the need to respond more
energetically to the subsequent police inquiry. Even if Mr Morris had reported
his observations almost immediately, and Ms Twell had contacted Mr Crowley
almost immediately after that, there is no reason to assume that at that point
the conversation would have taken a different course that would have resulted
in Mr Crowley actually checking Jonathan’s immediate whereabouts.
1071.
Finally, counsel for ACTMH says that even if the Crisis Team members had
made the connection between Jonathan and the person being sought by the police,
and had passed on their suspicions to the police, it would not have made any
difference. This, he says, is because:
(a) only basic information such as name,
address and the general nature of Jonathan’s condition would have been passed
on;
(b) the details of Mr Wells’ assessment
would not have been passed on, if only because it would have taken time to find
the information in the file and pass it on;
(c) even if details had been passed on,
very little would have been taken in by police officers in the field (this
submission was based on Constable Bailey’s evidence about how he listened to
the police radio, at [273] above);
(d) even if details had been passed on
and taken in, they would probably not have made any difference to the course of
events, because:
(i) the police already knew enough
about Jonathan to know that they should approach him with care; and
(ii) knowing personal details such as
his name would have made no difference, since calling him Jesus Christ was in
fact what worked (this submission was based on Allan Richter’s experience
described at [296] above); and
(iii) there is no basis in the police
evidence for saying that involving Jonathan’s parents would have changed the
outcome (in support of that submission, counsel said that Senior Constables
Pitkethly and Willis were not asked how they might have acted differently if
they had been given the information known to the Crisis Team).
1072.
Some of the reasons advanced by counsel for saying that it would have
made no difference to the police if the Crisis Team had identified Jonathan as
the person they were looking for are easily disposed of.
1073.
There is no basis for finding that if any information had been passed
on, it would only have been Jonathan’s name, address and general condition,
since the Crisis Team members who made the connection between Jonathan and the
man with the sword, in particular Ms Twell and Ms Williams, were both well
informed about Jonathan’s circumstances and relevant history, and there is no
basis for finding that they would have had any difficulty in accessing the
relevant records in the ACTMH system. It would have taken no more than a
minute or so for either of them to convey their suspicions about the person’s
possible identity and the likelihood that Jonathan was suffering a psychotic
episode.
1074.
Nor is there any reason for finding that very little of any information
passed on to the police would have been taken in by police officers. There is
no reason to believe that the “key words” approach taken by Constable Bailey
while riding his motorbike was also taken by all other police officers involved
in any or all circumstances. There is no reason to believe that information
passed on to Communications would not have been properly passed on to the
police officers in the field. For instance, the following is the description
of Jonathan broadcast at around 1:20 pm on the Tuesday afternoon; it shows the
level of detail that could be given in brief general broadcasts:
Look out to be kept for a male person in relation to the
disturbance in Perry Drive and Lincoln Close in Chapman. The person we are
looking for is a male 5’11” to 6 feet in height. Has shoulder length dark wavy
hair. He’s of tanned complexion. He’s got a light blue shirt opened at the
neck and he’s got “love/hate” texta’d all over this light blue shirt. Carrying
a wooden sword. He was last seen in Lincoln Close in Chapman, probably in the
last 10 minutes.
1075.
It is of course possible that if Senior Constables Pitkethly and Willis
had, on their way to Doyle Terrace, heard a similarly brief message giving
Jonathan’s name and address, his parents’ names and phone numbers and their
recent involvement in his care, his diagnosis, the fact that he didn’t like
police officers, the fact that he was unlikely to have a real sword and the
fact that ACTMH did not consider him a danger to others, it would have had no
effect at all on how they confronted Jonathan when they found him. I consider,
however, that it is probable that such a message would have raised questions in
their minds about their expectation that they could communicate with Jonathan
and that he was likely to be cooperative, but would at the same time generally
have reduced the sense of urgency that they were apparently affected by as they
approached the scene of the sighting. If the two police officers had been not
just under-prepared, over-anxious and generally confused but actually looking
for an opportunity to cause harm, then it would be reasonable to conclude that
this new information would have had no effect on them. Having rejected that
possibility, I find it more probable than not that the receipt of significant
new and relevant evidence about Jonathan would have induced the police officers
to think again (or perhaps for the first time) about how they should deal with
Jonathan if they found him and whether it was necessary or appropriate to try
to contain him before any other police officers arrived.
1076.
As well, if such a message had been broadcast, or even just passed on to
Sgt Morris a few minutes earlier when she asked Communications to check
with ACTMH, it might have changed the whole tenor of the police activity by
turning it from an urgent search for an unidentified and potentially dangerous
offender into an operation to take into mental health detention a known patient
of ACTMH, who was probably not armed with a bladed weapon and whose family
could be brought in to help with his apprehension. Among other things, this
would have emphasised the importance of proceeding carefully and would have
provided a framework for Sgt Morris to manage the execution of an informed
plan to apprehend Jonathan in a “slowly, slowly” manner such as she had
described to DSC Carnall.
1077.
This possibility is confirmed by SC Willis’s comment quoted at [286]
above that he would not have left the rendezvous point immediately if Sgt
Morris had told him she had Mental Health on the phone again.
1078.
It is true that Senior Constables Pitkethly and Willis did not at trial
specify how they would have used extra information about Jonathan, but they both
agreed that it might have been useful.
1079.
SC Pitkethly gave the following evidence:
In dealing with any arrest situation, but particularly where
someone is extremely disturbed from a mental illness, it’s of great assistance
to police officers in making their operational decisions and in working out
tactics to know about the prior antecedents of the person and who that person
is, is that right?---Yes. Background information’s extremely important.
Yes, yes. And you were a police officer performing your duty
with the best information that you had available, but not having the advantage
of this extra information that ACT Mental Health would have had?---I - yes, I
wasn’t aware of the information at the time, certainly.
And if you’d had that information a lot earlier, the manner
in which the event in Chapman most likely would have been - well, if you’d had
that information, the manner in which this event in Chapman was managed most
likely would have been quite different?---We would have certainly made
different critical decisions.
Yes. And there would have been a much better outcome in
terms of Mr Crowley not getting shot?---I can’t guarantee what the outcome
would have been no matter what, but it certainly would have been of great
assistance.
1080.
SC Pitkethly agreed that in dealing with mentally disturbed persons it
would be helpful to know their names, and also said that if ACTMH had
identified Jonathan, “everything would have fallen into place” and the
situation “could have been handled much differently”. In particular, he said,
he would have tried to contact Jonathan’s family before leaving the Chapman shops,
noting that “trusted figures ... are very important ... in bringing about a
peaceful and safe resolution ... where a mentally disturbed person has come to
the notice of police”.
1081.
SC Willis gave the following evidence:
If at the time when you were at that rendezvous point you
were aware of the name and address of the person in question, with his family
and contact details for the family, such as a mobile phone number, would that
have been important information, in terms of the way in which the whole problem
that he posed would have been approached?---I can’t say with certainty it would
have changed how we approached, but certainly any information you can get
improves our chances of being able to deal with the situation. The more we
know about anyone the better position we’re in to ... know ... what might scare
them, or ...
Set them off ...
For instance, if you’d known that he wasn’t a generally
violent person but he was having a psychotic episode and that his parents lived
quite close to where he’d last been, in the general area of where he’d been
seen. Would that have been important information, in terms of decisions as to
how the whole thing needed to be resolved?---Certainly. ... if the information
had come across that he was normally not violent, but obviously was getting
violent ... it would have probably increased the imperative for us to try and
locate him, but it would have given us some guidance as to trying to speak to
the parents, or ... trying and ascertain where he might be going, if he was
going to return home. ... As it was we were flying blind. ...
But things such as knowing his name and the names of his
relatives you say could have been of assistance?---Well, certainly, if you can
address someone by their name it may well assist open the lines of
communication. I mean, if I’d been able to say ‘Jonathon, what’s going on?’, I
don’t know, but that may have been the circuit breaker that calmed things down,
rather than saying ‘Mate’ to him. (T1193)
1082.
It is true that in the unedited interview tapes from which the AFP
training DVD was made, SC Willis said that having relevant information from
ACTMH wouldn’t have changed anything. However, as mentioned at [50] above, I
have placed more weight on SC Willis’s sworn evidence and his early police
interviews than on his comments in the training material. In any case, as
already mentioned, the Crisis Team information was not only relevant to how the
two police officers acted when they reached Doyle Terrace but also possibly to
whether they would nevertheless have chosen, or been permitted, simply to
travel to Doyle Terrace in a hurry, in advance of all their colleagues and apparently
without any understanding that they had a particular role in a larger exercise
to apprehend Jonathan safely.
1085.
None of these claims was argued in the trial or in subsequent written
submissions. The concession made on behalf of the plaintiff that there was no
criticism of SC Pitkethly’s use of his gun in the circumstances in which
it was used may have been intended as a withdrawal of the plaintiff’s claims in
respect of battery constituted by shooting, but nothing was conceded about the
claims based on the use of OC spray or the baton, there was no equivalent
concession made by the second defendant about any of the weapons in respect of
any of its claims, and there was no amendment to the pleadings filed
subsequently. For those reasons, I simply note at this stage that in the
absence of submissions I have reached no conclusions about any of the claims
based on an alleged assault and battery of the plaintiff.
(a)
by the third defendant and SC Willis confronting Jonathan without having
done, either alone or together, any useful planning or risk assessment, in
particular having regard to their knowledge that Jonathan was armed and
mentally-disturbed, that a large number of other police officers were closely
behind them on the way to Jonathan’s location, and that there were particular
risks associated with the apprehension of mentally-disturbed people, and having
regard to their belief that Jonathan had already attacked Andrew Oakley twice;
(b)
in the manner in which the third defendant and SC Willis confronted
Jonathan, specifically by getting out of the car as soon as it stopped and
effectively simultaneously, by adopting a threatening pose in standing behind
their car doors with OC spray in their hands ready for use, and by shouting at
Jonathan (simultaneously, until SC Pitkethly realised that was inappropriate)
to drop his weapon and get on the ground.
1089.
The second defendant breached its duty of care by:
(a)
the failure of ACTMH staff to pursue Jonathan’s admission to hospital on
Tuesday morning;
(b)
Jason Morris’s failure to report Jonathan’s odd behaviour to the Crowley
family; and
(c)
the failure of ACTMH staff, namely Ms Twell and her colleagues, to
pursue the reasons for the police interest in the person the police had asked
about and to raise the possibility that Jonathan was the person police were
interested in with the police, either immediately or after pursuing that
possibility with the Crowley family.
1090.
The first, second and third defendants are liable to the plaintiff for
the injuries suffered when he was shot by the third defendant.
1091.
There will be judgment for the plaintiff against all three defendants
for an amount of damages to be ordered; as noted at [17] above, I understand
that the amount of damages will be agreed between the parties, and I shall hear
the parties as to the agreed amount.
1092.
Although counsel for the first and third defendants made brief
submissions about the appropriate contributions of the several defendants if
all of them were found liable, those submissions were made on the basis of
assumptions that do not accord in all respects with my findings of fact and
conclusions. Counsel for the second defendant did not make any submissions
about apportionment. Accordingly, I shall hear the defendants about the
appropriate orders in respect of apportionment.
I certify that the preceding one thousand and ninety
two (1093) numbered paragraphs are a true copy of the Reasons for Judgment
herein of her Honour, Justice Penfold.
Associate:
Date: 27 May 2011
Counsel for the plaintiff: Mr
Gross QC with Mr Dixon
Solicitor for the plaintiff: Collaery
Lawyers
Counsel for the first defendant: Mr
Semmler QC with Mr Stretton
Solicitor for the first defendant: Australian
Government Solicitor
Counsel for the second defendant: Mr Molomby
SC with Mr Watts
Solicitor for the second defendant: ACT
Government Solicitor
Counsel for the third defendant: Mr
Semmler QC with Mr Stretton
Solicitor for the third defendant: Australian
Government Solicitor
Dates of hearing: 19, 20,
21, 22, 23, 26, 27, 28, 29 May, 6 June 2008
24, 25, 26, 27
February 2009
2, 3, 4, 5,
10, 11, 12, 13, 16, 17, 18, 19 March 2009, 7 May 2009
23
November 2010 (mention)
Date of judgment: 27
May 2011
Appendix A –
Witnesses and evidence
The witnesses named below gave oral evidence in the order
listed.
|
|
Name
|
Description
|
Called by ...
|
|
1
|
Keith Hamilton Crowley
|
Father of plaintiff
|
P
|
|
2
|
Paloma Crowley
|
Mother of plaintiff
|
P
|
|
3
|
Norman Hazzard
|
Expert witness
(policing)
|
P
|
|
4
|
Jonathan Anthony
Crowley
|
Plaintiff
|
P
|
|
5
|
Mervyn John Carnall
|
Police officer (OSG
team leader)
|
P
|
|
6
|
Jonathon Phillips
|
Expert witness (mental
health)
|
D1&3
|
|
7
|
Richard William
Jennings
|
Expert witness
(policing)
|
P
|
|
8
|
Jason John Morris
|
Employee of ACTMH
|
P
|
|
9
|
William Reginald Arthur
Atkinson
|
Member of the public
|
D1&3
|
|
10
|
Leonard Benjamin
Richter
|
Air-conditioning
installer (son of Allan Richter)`
|
D1&3
|
|
11
|
Peter Mark Parker Smith
|
Expert witness
(policing)
|
P
|
|
12
|
Allan Charles Richter
|
Air-conditioning
installer (father of Leonard Richter)
|
D1&3
|
|
13
|
Andrew David Oakley
|
Postman
|
D1&3
|
|
14
|
Glen Thomas Pitkethly
|
Police officer
|
D1&3
|
|
15
|
Benjamin Jeffrey Willis
|
Police officer
|
D1&3
|
|
16
|
Paul Adrian Bailey
|
Police officer
|
D1&3
|
|
17
|
Geoffrey Esmond
Schuberg
|
Expert witness
(policing)
|
D1&3
|
|
18
|
Darren John Rath
|
Police officer/Expert
witness (policing)
|
D1&3
|
|
19
|
James Archibald Telfer
|
Expert witness (mental
health)
|
D2
|
|
20
|
Anthony Quinn
|
Surveyor
|
D2
|
The people named below took part in police interviews,
transcripts of which were in evidence.
|
Name
|
Date of interview
|
|
Plaintiff
|
11 December 2001
|
|
Plaintiff
|
7 March 2002
|
|
Mr Keith Crowley (father)
|
14 January 2002
|
|
Mr Keith Crowley (father)
|
7 March 2002
|
|
Mrs Paloma Crowley (mother)
|
14 January 2002
|
|
Ms Camille Corson (sister)
|
12 December 2001
|
|
Katherine Arnold
|
11 December 2001
|
|
Angela Badalassi
|
12 December 2001
|
|
Michele Belford
|
12 December 2001
|
|
Roslyn Brice
|
12 December 2001
|
|
Varvara Carl
|
16 December 2001
|
|
Margaret Day
|
12 December 2001
|
|
Peter Day
|
12 December 2001
|
|
Diane Exon
|
11 December 2001
|
|
Paul John Foley
|
16 December 2001
|
|
Maria Ghyson
|
11 December 2001
|
|
Akim Halank
|
11 December 2001
|
|
Roma Hatchard
|
12 December 2001
|
|
Margaret Healy
|
11 December 2001
|
|
Desmond Linehan
|
11 December 2001
|
|
Don McLaglan
|
11 December 2001
|
|
Mark Norman
|
11 December 2001
|
|
Andrew Oakley
|
11 December 2001
|
|
John Payne
|
11 December 2001
|
|
Sandra Payne
|
11 December 2001
|
|
Allan Richter
|
11 December 2001
|
|
Leonard Richter
|
11 December 2001
|
|
Nicole Scargill
|
11 December 2001
|
|
Oranuch Sparke
|
11 December 2001
|
|
Sue Stanwell
|
11 December 2001
|
|
James Wright
|
13 December 2001
|
|
Senior Constable Glen Pitkethly
|
11 December 2001
|
|
Senior Constable Glen Pitkethly
|
25 March 2002
|
|
Senior Constable Ben Willis
|
11 December 2001
|
|
Senior Constable Ben Willis
|
21 March 2002
|
|
Senior Constable Paul Bailey
|
11 December 2001
|
|
Constable Phillip Eagles
|
14 December 2001
|
|
Constable Julian Mann
|
14 December 2001
|
|
Sergeant Geraldine Morris
|
11 December 2001
|
|
Sergeant Geraldine Morris
|
19 March 2002
|
|
Sergeant Geraldine Morris
|
20 March 2002
|
|
Det Snr Con Mervyn Carnall
|
19 December 2001
|
|
Det Snr Con Mervyn Carnall
|
20 March 2002
|
|
Snr Con Martin Beresford
|
13 December 2001
|
|
Snr Con Martin Beresford
|
21 December 2001
|
|
Det Snr Con Thomas Charles-Jones
|
13 December 2001
|
|
Det Snr Con Thomas Charles-Jones
|
18 December 2001
|
|
Constable Guy Davy (missing
pages 2, 4, 6 and 8)
|
19 December 2001
|
|
Det Snr Con John Dougan
|
23 December 2001
|
|
Constable Mark Richardson
|
21 December 2001
|
|
Constable Craig Skinner
|
12 December 2001
|
|
Constable Michael Towart
|
19 December 2001
|
|
Simon Tillmanns
|
3 January 2002
|
|
Jeffrey Linkston
|
11 March 2002
|
|
Serena Buxton
|
7 January 2002
|
|
Edwin Fuderer
|
23 January 2002
|
|
Rebecca Kirk
|
24 January 2002
|
|
Paul McFawn
|
20 February 2002
|
|
Gareth Williams
|
23 January 2002
|
|
Sarah Benson
|
5 March 2002
|
|
Benjamin Kwok
|
13 March 2002
|
|
David Royds
|
15 March 2002
|
|
Peter Collins
|
25 February 2002
|
|
Stephen Fekete
|
13 December 2001
|
|
Greg Addison
|
13 December 2001
|
|
Michelle Blewitt
|
12 December 2001
|
|
Phillip McHugh
|
13 December 2001
|
|
Howard Wren
|
12 December 2001
|
|
Jason Morris
|
22 January 2002
|
|
Andrea Twell
|
23 January 2002
|
|
Karen Eggins
|
4 February 2002
|
|
Jenny Williams
|
27 February 2002
|
Richard Jennings
Richard Jennings works as a security and safety risk analyst. He was a
member of the London Metropolitan Police Service
from 1963 until 1978. He worked initially on “general crime duties” but later
as a senior detective attached to specialist investigative units dealing with
matters such as burglary, robbery, fraud, organised crime, murder and counter
terrorism. Mr Jennings’ experience included a number of situations involving
persons displaying “unstable psychiatric behaviour”; at one stage he was in
charge of a police station covering London’s largest psychiatric hospital, and
on a number of occasions personally attended incidents in which hospital
patients had got themselves into violent situations and need to be taken back
to hospital.
In 1978 he came to Australia to join Websters
Investigation and Security Group. In 1998 he became Managing Director of
Jennings Security Risks, a private security consultancy business, and began
giving evidence as an expert witness. In 1993 he worked on contract as
Security Project Manager for the NSW Police Service, reviewing and reorganising
the Security and Safety Department of the NSW Police Service, and providing new
training and crisis management plans for high risk facilities such as police
premises.
Mr Jennings holds various certificates including
Certificate IV in Security Risk Management and an Advanced Diploma in Risk
Management, as well as security and private inquiry agent licences under NSW
legislation.
Tertiary study
- Bachelor of Arts (Archaeology and
Paleoanthropology) – University of New England
Relevant employment
- 1963-1978 – London Metropolitan Police Service
- 1978-2005 – employment as investigator and security
consultant.
Mr Smith is the managing director of Ulong Risk Management,
where he works as a senior consultant and senior defensive tactics instructor.
He was a member of the AFP for five years, resigning in 1988; he had little
operational policing experience while in the AFP and has had none since. His expertise
is in the use of force in the apprehension of mentally ill persons and more
generally in the use of force to deal with resistive behaviour in making
arrests. Mr Smith holds various certificates including Certificate IV in
Security Risk Management and in Investigative Services and Certificate III in
Security Guarding.
Tertiary study
- Bachelor of Science (Security) –
Edith Cowan University
Relevant employment
- 1983-1988 – Australian Federal Police (general duties
policing, Organised and Major Crime Units)
- Since 1988 – Security Consultant to a wide range of
public and private sector clients
- Since 1988 – Training provider (design, development
and delivery) to public and private sector clients, including law
enforcement organisations, relating to operational safety and defensive
tactics, critical incident and emergency management, counter-terrorism,
security risk management and investigations
Mr Hazzard was a member of the New South Wales Police Force
for 41 years and retired in March 2006 as the Assistant Commissioner, Counter
Terrorism. He has developed a university course for police negotiators to a
Masters degree level, which is now part of the university program for police
across Australia. His work has included consideration of cases involving
responses by police to a situation where someone has to be arrested.
Mr Hazzard has not operated as a general duties police
officer since 1969, but he was involved with the NSW State Protection Group
until around 2001, during which time he interacted frequently with general
duties police officers. Most of his experience has been in specialist groups
which were better resourced and operated with more planning than is the case
for general duties policing.
Relevant employment
- New South Wales Police Force for 41 years
- 1974 – Special Weapons and Operations Squad (SWOP)
- terrorism training and high-risk incident resolution
- 1979-1979 - Police Negotiator – New South Wales
Police Negotiation Unit
- 1988-1991 – Head police negotiator – New South
Wales Police Negotiation Unit
- 1991 – Tactical Operations Commander – State
Protection Group
- 1992 – Commander – State Protection Group
- 2003 – Assistant Commissioner – Counter Terrorism
- 2006 – Consultant to Commissioner of Police to
conduct review into police response to the “Cronulla Riots”
Geoffrey Esmond Schuberg
Mr Schuberg is a retired Assistant Commissioner of Police, New South
Wales. He began his career doing general uniformed duty, spent some time in
Vietnam with the Australian Military Police, and returned to general duties
policing. He is a qualified weapons instructor. He has instructed many police
in the use of firearms, including by reference to the use of force protocols.
From 1991 until he retired in 1997, he was involved, both as Director of
Investigations at ICAC and from 1994 as Commander Professional Responsibility
(at Assistant Police Commissioner level), in investigating complaints about the
use of force by police officers. In 1997 he was awarded an Australian Police
Metal for integrity and good police work over a number of years.
In 2001 he was appointed to the NSW Police Minister’s
Advisory Council, which provided advice on critical areas of operational
policing in order to increase police effectiveness and boost public confidence
in policing.
Relevant employment
- From 1973 – General investigative duties, later
specialising in investigation of organised crime
- Mid-late 1980s – Senior Investigator – National
Crime Authority and NSW State Crime Commission. At this time he was
trained and qualified in all aspects of operational policing
- 1991 – Independent Commission Against Corruption
(ICAC)
- 1993 – Commander, Police Internal Affairs Branch
(Chief Superintendent)
- 1994 – Commander, Professional Responsibility
(Assistant Police Commissioner), Police Internal Affairs Branch
Federal Agent Darren Rath has been a member of the AFP since
1984. When he gave evidence in 2009 he was Senior Liaison Officer – Australian
Federal Police HCMC Post, Vietnam. As a member of the AFP, Mr Rath had had
considerable experience, and has acquired more structured knowledge, of the
appropriate standards for police in operational roles. He had conducted
reviews into two police shootings, including one in the ACT in 1995, and had
also been involved, sometimes as the leader, in developing training and
operating principles for the AFP. From 1996 he led a project to re-vamp the
AFP’s operational safety training program and to implement it into the AFP’s
operating doctrine, which he said was “well embedded” by December 2001.
Tertiary study
- Bachelor of Engineering (Chemical)
– University of Wollongong and University of New South Wales.
Relevant employment
- 1985, 1986-1987 – General Duties – ACT Policing
- 1994-1997 – ACT Policing (including conducting the
review of the shooting by police of Warren I’Anson)
- 1998-1999 – Training Delivery Team, Australian
Federal Police College, Barton. Included designing and developing the “Defensive
Skills/Firearms Instructor Program” and “Police Negotiation Team Training
Program”.
- 2001-2002 – Team Leader – School of Operational
Safety and Police Practice
- 2002-2004 – Duties included conducting the review
of the police shooting of Malcolm Albert Hay in North Ryde, NSW on 13
December 1999
- 2004-2005 – Officer in Charge, Tuggeranong Police
Station
Dr Phillips has been a psychiatrist since 1973. He has
worked as a general psychiatrist and now practices in Sydney as a consultant
psychiatrist, continuing to see some patients. In 2008 he was constructing a
Master’s degree course in forensic mental health for the University of NSW.
Positions held (as at 2008):
- Clinical Associate Professor, University of Adelaide
- Associate Professor, James Cook University
Previous positions and offices
- Director of Mental Health and Chief Psychiatrist, South
Australia (for 2 years; this involved Dr Phillips in developing a
Memorandum of Understanding between Mental Health South Australia and the
South Australian police service)
- President of the Royal Australian and New Zealand College
of Psychiatrists;
- President of the Committee of Presidents of the Australian
Medical Colleges (which involved Dr Phillips in overseeing standards to be
applied by practitioners in the mental health area in Australia).
- Part-time consultant to the North Shore Community Mental
Health Service, Sydney. (T327)
Dr Telfer is a medical practitioner specialising in
psychiatry. He has had many roles at Royal North Shore Hospital. Since 1999 he
has worked with three community health teams in a service integrating the
Hospital Admission Unit at RNSH with the community health services under a
single administration. Dr Telfer has also consulted to community health teams
in western New South Wales. (1632)
Positions held (as at 2009):
- Consultant Psychiatrist, Royal North Shore Hospital and
Ryde Mental Health Service (seeing about 40 outpatients each month)
- Since 1999 – Director of Psychiatric Services,
Emergency Department, Royal North Shore Hospital
- Since 1999 – Clinical Lecturer, Faculty of
Medicine, University of Sydney (Northern Clinical School)
- Since 1983 – Medical Superintendant, CJ Cummins
Unit, RNSH (responsible for up to 14 in-patients, mostly detained under
the NSW Mental Health Act; the unit serves a population of about
200,000).
Previous position
- 1991-1998 – Deputy Director, Royal North Shore
Hospital and Community Health services.