JONATHAN ANTHONY CROWLEY v COMMONWEALTH OF AUSTRALIA, AUSTRALIAN CAPITAL TERRITORY and GLEN PITKETHLY 

 [2011] ACTSC 89 (27 May 2011)

 

 

TORTS – negligence – circumstances in which police may owe a duty of care – extent of police “immunity” in respect of investigations and suppression of crime – taking control of situation may constitute assuming a duty of care – coherence.

 

TORTS – negligence – relationship between common law doctor-patient duty of care and statutory power to compulsorily detain mentally dysfunctional or mentally ill person – common law duty of care may be associated with existence of statutory power to compulsorily detain.

 

 

 

Australian Federal Police Act 1979 (Cth), ss 4, 8, 38

Australian Federal Police Legislation Amendment Act 2000 (Cth)

Evidence Act 1995 (Cth), s 135

 

Community and Health Services Complaints Act 1993 (ACT)

Health Records (Privacy and Access) Act 1997 (ACT), ss 5 (IPPs 9 and 10), 6, 18, 19

Mental Health (Treatment and Care) Act 1994 (ACT), ss 7(a), 9, 37, 38, 40, 41

 

Compensation to Relatives Act 1897 (NSW)

Mental Health Act 1990 (NSW), ss 9, 10, 21, 22, 24, Part 1 of Chapter 4

Police Service Act 1990 (NSW)

Police Act 1990 (NSW)

Community Welfare Act 1972 (SA), s 25(a)

Mental Health Act 1986 (Vic), s 10

 

Australian Federal Police Regulations 1979 (Cth), Sch 1

Court Procedures Rules 2006 (ACT), Div 2.12.2, r 1241(1), 1242(5), Schedule 1, subr 1.2(3)

 

 

Ashley v Chief Constable of Sussex Police [2008] UKHL 25

Ansett Transport Industries (Operations) Pty Ltd v State of NSW (1998) 28 MVR 145

Batchelor v State of Tasmania [2005] TASSC 11

Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47

Chapman v Hearse (1961) 106 CLR 112

Chief Constable of The Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police [2008] UKHL 50

Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070

Cran v State of New South Wales (2004) NSWCA 92

Cumming v State of NSW (2008) NSWSC 690

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Ferroggiaro v Bowline (1957) 64 Am LR 2d 1355

Gibson v Orr [1999] SC 420

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Gruber v Backhouse [2003] ACTSC 18

Haber v Walker [1963] VR 339

Halech v SA (2006) SASC 29

Hill v Chief Constable of West Yorkshire [1989] 1 AC 53

Howard v Jarvis (1958) 98 CLR 177

Hunter Area Health Service v Presland (2005) 63 NSWLR 22

Jones v Dunkel (1959) 101 CLR 298

Kirkham v Chief Constable of the Greater Manchester Police [1989] EWCA Civ 3; [1990] 2 WLR 987

Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936

Knightley v Johns [1982] 1 WLR 349

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Manly Council v Byrne [2004] NSWCA 123

March v Stramare (1991) 171 CLR 506

New South Wales v Klein (2006) NSWCA 295

Osman v United Kingdom [1998] ECHR 101

Philips v William Whiteley Ltd [1938] 1 All ER 566

Rickard v State of NSW [2010] NSWCA 151

Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242

Rogers v Whitaker (1992) 175 CLR 479

Rush v Commissioner of Police (2006) 150 FCR 165

Schilling v Lenton (1988) 47 SASR 88

State of New South Wales v Fahy (2007) 232 CLR 486

State of NSW v Riley [2003] NSWCA 208

State of NSW v Spearpoint [2009] NSWCA 233

State of NSW v Tyszyk [2008] NSWCA 107

State of Victoria v Richards [2010] VSCA 113

Stuart v Kirkland-Veenstra (2009) 237 CLR 215

Sullivan v Moody (2001) 207 CLR 562

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

Tame v New South Wales (2002) 211 CLR 317

Thompson v Vincent [2005] NSWCA 219

Ticehurst v Skeen (1986) 3 MVR 307

Vairy v Wyong Shire Council (2005) 223 CLR 422

Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692

Wyong Shire Council v Shirt (1980) 146 CLR 40

Zalewski v Turcarolo [1995] 2 VR 562

 

 

Transcript of Proceedings, Tyszyk v State of NSW [2009] HCATrans 84 (1 May 2009)

 

 

Luntz H, Hambly D, Burns K, Dietrich J, Foster N, Torts: Cases and Commentary (6th edition, Lexis Nexis Butterworths, 2009)

 

 

Review of Fatal Shootings by Victoria Police (Report of the Director of Police Integrity, Office of Police Integrity, Victoria, November 2005)

 

Spigelman CJ, ‘Negligence:  The Last Outpost of the Welfare State’ (speech delivered at the Judicial Conference of Australia: Colloquium 2002, Launceston, 27 April 2002)

 

 

 

 

No. SC 367 of 2002

 

 

Judge:              Penfold J

Supreme Court of the ACT

Date:               27 May 2011


IN THE SUPREME COURT OF THE     )

                                                                        )           No. SC 367 of 2002

AUSTRALIAN CAPITAL TERRITORY            )          

 

 

BETWEEN:     JONATHAN ANTHONY CROWLEY

 

                                                                                                            Plaintiff

 

AND:                COMMONWEALTH OF AUSTRALIA

 

                                                First Defendant

 

AND:                AUSTRALIAN CAPITAL TERRITORY

 

                                                Second Defendant

 

AND:               GLEN PITKETHLY

 

                                                Third Defendant

 

 

ORDER

 

Judge:                                                              Penfold J

Date:                                                               27 May 2011

Place:                                                               Canberra

 

THE COURT ORDERS THAT:

 

1.                  Judgment is given for the plaintiff, in the action in negligence, against the first, second and third defendants, for an amount of damages to be ordered.

2.                  The parties be heard about the amount of damages and about the apportionment of damages among the defendants.

3.                  The parties have leave to apply to the court in respect of the claims not addressed in this judgment.

 


Part 1 – Introduction

The actions

1.                  Jonathan Crowley is seeking damages from the Commonwealth of Australia, the Australian Capital Territory (ACT) and Glen Pitkethly in respect of injuries Mr Crowley sustained in an incident in 2001.  There is a claim for contribution and indemnity by the first and third defendants (the Commonwealth and Mr Pitkethly) against the second defendant (the ACT), and a matching claim by the ACT against the Commonwealth and Mr Pitkethly.

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.

The judgment

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]

 

The incident

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.

Damages

17.              Before the hearing began, it had been agreed between the parties that questions of liability and quantum of damages would not be separated.  However, little if any evidence relevant to damages had been heard before the beginning of the third week of a six-week hearing, at which point the parties indicated that they had almost reached agreement on quantum of damages, and a draft agreement was provided to the court.  As already mentioned, this judgment does not deal with questions of quantum.

Communications

18.              It is ironic that the reason given by both police officers for getting out of the police car and engaging with Jonathan on Doyle Terrace was the need to communicate with him.  The irony emerges from the fact that this tragedy appears to have resulted from a series of communications failures, in circumstances where avoiding any one of those failures might have changed the course of events sufficiently to avoid the final disastrous outcome.  Communications within ACTMH, within the AFP, between the two agencies and by each agency with others outside the agency were too little and in some cases too late; finally, the two police officers involved failed to communicate properly, in particular with each other, about any aspect of the Crowley apprehension until it was all over, and their attempts to communicate with Jonathan were spectacularly unsuccessful.

Part 2 – The evidence

Oral evidence

19.              Evidence was given at trial by the witnesses listed in Part 1 of Appendix A.  The evidence of witnesses in the trial, together with legal argument and submissions, generated over 2,100 pages of transcript.

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.

Documentary evidence

26.              Documentary evidence totalling nearly 1,400 pages was also put before me. 

Police interview transcripts

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.

Official records

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).

34.              As to the CAD log, there was no evidence of the relationship between the times shown in the log and the entries recorded against those times.  A comparison of the early CAD log entries with Communications transcript of early reports of sightings of Jonathan shows the CAD log entries being made after the Communications records, but not with a regular delay so as to suggest that the clocks timing the two sets of records were not synchronised; rather the delay seems to be around two to three minutes but possibly as much as six minutes early on (perhaps before the matter took on any urgency).  This in turn suggests that the CAD log entries were made manually at the time recorded in the CAD log, soon after the information was received by Communications but not a fixed time afterwards.  That is, the CAD log showed the time records were made, not the time of the events recorded.

35.              Some of the deficiencies in the evidence were not of major importance, but some of them have significantly complicated the fact-finding task. 

Other issues

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.

Evidence relating to ACTMH

38.              Only one member of staff from ACTMH gave evidence, and he was called not by ACTMH but by the plaintiff.  He was Jason Morris, a rehabilitation worker who dealt with Jonathan’s brother Mark and had a brief and accidental encounter with Jonathan on the morning of the shooting. 

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.

43.              Several of the police interviews with relevant ACTMH staff members were conducted in the presence of other ACTMH staff members who were there to “support” the person being interviewed.  The interview transcripts show that those “supporters” participated in the interviews by correcting, or supplementing, the answers provided by the staff members being interviewed.

44.              In the police interview with Jason Morris, the “supporter”, a clinical nurse consultant identified in the transcript as Howard Lane Franchie but whose surname may in fact have been Lanfranchi, apparently took over the interview to such an extent that at one point the transcript-maker began treating him as the interviewee and identifying Mr Morris as an interjector whenever he got a word in.

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 ...”.   

46.              John Bubear, described as Team Leader, Mental Health Crisis Team, attended police interviews with other ACTMH staff members Jenny Williams and Karen Eggins, and showed the same tendency as Mr Franchie to intervene to “correct” information given by the interviewees.

47.              Counsel for the ACTMH explained in closing submissions that the various ACTMH staff involved in Jonathan’s care, and in dealing with the police on 11 December 2001, could remember very little of the events of that day, and for that reason there was no point in calling them to give evidence.  ACTMH staff may well face memory challenges, as did most of the witnesses.  There is no reason to believe that, with recourse to their interview transcripts if necessary, they could have given no useful evidence.  Quite apart from evidence of the events of 11 December, coherent evidence of how ACTMH records were created and what information could be extracted from them would also have been useful.  Such evidence could presumably have been given by a witness involved in either setting up or supporting that record-keeping system, whose memory could have been supplemented to a large degree by the specifications of the system and instructions or training materials on how to use it.

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.

49.              The material in the interview transcripts of police interviews with ACTMH staff is in many areas direct evidence of matters in issue, and possibly more reliable than the evidence that would have been given six or seven years later. As noted above, however, there are some areas in which evidence from ACTMH staff would have been useful, and I have to some extent relied on Jones v Dunkel to justify the drawing of inferences in relation to several issues, most notably for the purposes of my findings about the contents of the ACTMH telephone call to Keith Crowley shortly before Jonathan was shot (at [187] below).

AFP training material

50.              Two AFP recordings relating to Jonathan’s shooting were tendered in DVD form and shown in court.  One was a training DVD entitled Facing Fear, in which SC Willis described the incident and how he had experienced it, and the other was the unedited interview tapes from which the training DVD was made.  This material was interesting and often moving, and gave extra insights into how the events of 11 December 2001 and their aftermath have affected the police.  However, in the task of working out what actually happened on that day and why, the DVDs add little to the material available from the police interviews with the two officers and the evidence the officers gave at trial.  Where the DVD material appears to be inconsistent with that other evidence, I have relied on the information given to police investigators shortly after the incident, and the evidence given on oath during the trial, in preference to information in the DVDs that was provided in a very different environment and for very different purposes.  

Expert evidence

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.

56.              There were two general problems in this case with the expert evidence.

57.              First, for obvious reasons, all expert reports were prepared by reference to identified assumptions provided by the party who had engaged the witness.  Those assumptions reflected the evidence that was in due course given at the trial in many but not all respects.  I have had to make findings of fact on a number of significant and disputed issues involving conflicting evidence; to the extent that the witnesses relied on assumptions that were not borne out by the evidence or that are inconsistent with my findings, their opinions must be wholly or largely irrelevant.  In some cases assumptions about key facts seem to have affected expert opinions about undisputed facts as well.

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

59.              The two medical witnesses were Dr Jonathan Phillips, called by the AFP, and Dr James Telfer, called by ACTMH.  Their qualifications and experience are summarised at Appendix B.

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.

Experts in “policing”

61.              I am even less comfortable about the “specialised knowledge” of the witnesses called to give expert evidence about the appropriateness of the police response, being Richard Jennings, Norman Hazzard and Peter Smith (called by the plaintiff) and Darren Rath and Geoffrey Schuberg (called by the AFP).  Their qualifications and experience are summarised at Appendix B.

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. 

65.              Apart from Federal Agent Rath, the witnesses were consultants called to give evidence about a matter (specifically “general duties” or community policing) that might once have been part of their regular experience but was no longer either part of their experience or, in general, directly relevant to the expertise they were selling as consultants.

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.

69.              Counsel for the police went to some trouble to establish that the policing experts called by the plaintiff should be given less credence than those called by the police, because of asserted differences in their experience and status. He submitted that serving police officers (among whom he included Mr Schuberg, who retired in 1997) were the people who could best inform the court about appropriate standards for police conduct, rather than the “security experts” called by the plaintiff.  To some extent these comments reflected the concerns I have expressed at [61] to [65] above about the existence of a relevant recognised field of expertise in relation to policing.  They also, however, underscored those concerns, to the extent that two of the witnesses relied on by counsel for the police were serving police officers with the AFP, one of whom (DCS Carnall) was not, as mentioned above, bound by the Expert Witness Code of Conduct.

70.              The other difficulty with counsel’s submission was that the evidence given by both Federal Agent Rath and Mr Schuberg, unsurprisingly, reflected some assumptions that were not borne out by the evidence and the facts as I have found them.  Furthermore, Mr Schuberg’s evidence at trial provided several remarkable examples of question-begging reasoning; examples will be provided in relation to particular issues.

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.

The view

73.              Early in the trial, the Court conducted a view of relevant areas of Chapman, being the Chapman shopping centre, Perry Drive, Bertel Crescent where the Crowley family then lived, Rickards Street, and Doyle Terrace where the shooting took place.  No measurements were taken and no contemporaneous record was at any stage tendered by the parties.  The view gave me a general understanding of the scene of the shooting and other relevant sites, but I have not relied on any specific observations.  

Part 3 – The events of December 2001

The chain of events

74.              There were many points in the 24 hours before Jonathan Crowley was shot at which a different decision or action on the part of one of the participants in the unfolding tragedy might have changed the outcome, but the chain of events can usefully be considered in three chapters.

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.

Jonathan Crowley’s evidence

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. 

Jonathan’s life before the shooting

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.

Health problems

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.

Attitude to police

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.

88.              In 2000, Jonathan was involved in a road accident, and he had been visited at home by a police officer investigating the accident.  Mr Crowley reported Jonathan’s view of the interview:

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).

94.              Accordingly, I find that as at the day of the shooting, Jonathan had a negative attitude to the police.

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.

The sword and the stick

98.              Some 10 years before the shooting, Jonathan had acquired a samurai sword, which had a fairly straight blade and a sheath.  Mr Crowley gave evidence that some days before the shooting he had at Jonathan’s request taken the samurai sword, which Jonathan usually kept in his caravan, and had hidden it away (in a sheath and wrapped in some sort of cloth) under the carpet under a bed in his study.  There was no evidence that Mr Crowley had checked its presence at any later stage, and the sword remained under the bed until Mr Crowley produced it in accordance with a police requirement after Jonathan was shot. 

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.

100.          The kendo stick as exhibited at the trial consisted of several strips of bamboo tied together, and a leather handle described by Jonathan’s counsel as looking “like an old tennis racket handle”.  There were no sharp edges.  It was 120 cm long and about 3 cm wide at its thickest point.  There was expert evidence that these sticks weigh up to 750 gm (my own assessment is that Jonathan’s stick was somewhat lighter than that, which would be consistent with the evidence that some of its original leather covering was missing).  The stick had writing on it making both religious and possibly military allusions, such as “God loves you forever”, “Joan of Ark’s [sic] sword”, and “To smite the nations to save them”.  

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”. 

Emergence of Jonathan’s mental health crisis

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.

ACTMH – organisation and operations

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. 

106.          In the course of Jason Morris’s police interview, some information was given by Mr Franchie, who attended the interview to “support” Mr Morris (see [44] above).  That information was somewhat incoherent in the form in which it emerged, and it was not clarified in the interview.  Nor was it clear whether Mr Franchie in any way spoke for ACTMH management.  What seemed to emerge from his comments, however, was that an ACTMH staff member who made an electronic record could override the automatic recording and manually input the date or time of the incident recorded (although Mr Franchie did say that “if somebody selects a different time they usually have zero zero zero zero”).  Mr Franchie might also have intended to convey that in such a case the record would retain an automatic date stamp, but this was not clear.  He seemed also to suggest that a record being made could remain open for some time and that the automatic date stamp would reflect when the data entry was completed rather than when it was begun.

Monday – a problem is recognised

The Crowley family

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.

ACTMH is called in

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.

113.          Jon Wells came to the Crowley house at about 9.00 pm.  Mr Wells was described as “Clinician” in the forms he completed for ACTMH records, one of which was a Canberra Hospital Patient Progress form and the other of which was headed “ACT Mental Health Services, Module B”.  The fact that Mr Wells identified himself in a letter to the police investigators as “Psychologist”, but that Jenny Williams, a registered mental health nurse, also operated as a clinician on some shifts, suggests that “Clinician” was a functional description, referring to field workers who conducted mental health assessments, rather than an indication of the qualifications of particular staff.  No evidence of Mr Wells’ relative seniority or status was drawn to my attention.  

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.

115.          Following his visit to the Crowley home, Jon Wells completed two forms as mentioned at [113] above.  The Patient Progress Form included the following material:

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.

118.          Mr Crowley stayed with Jonathan that night until around 1:00 am or 2:00 am, at which stage Jonathan seemed to be sleeping soundly. 

119.          Mr Crowley’s evidence was that there was agreement between Mr Wells, Mrs Crowley and himself that he (Mr Crowley) would “keep a close eye on [Jonathan]”.  He also gave the following evidence:

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. 

Tuesday – Jonathan is still unwell

124.          Keith Crowley set his alarm for 6:00 am on the Tuesday and went back to see Jonathan then, finding him listening to the radio.  Jonathan told his father that “I’ve never been so happy in all my life”.  At that point Keith Crowley still believed that Jonathan would need to be hospitalised, but having got through the night it seems that he considered there was no ongoing need to keep a particularly close eye on Jonathan (see [119] above).

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. 

Keith Crowley telephones ACTMH

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.

Michael O’Connor’s visit

134.          By mid-morning on the Tuesday, except that Mrs Crowley had begun to do Jonathan’s laundry so that he would have clean clothes to take with him, Jonathan’s parents had not done anything about getting him to hospital; this was because, in Mrs Crowley’s words, “unfortunately this visitor had come”. 

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.

136.          Mr Crowley said that Michael O’Connor had come over “late morning” (around 11:30 am) and stayed until lunchtime (a bit after 1:00 pm), leaving then because he had an appointment at 2:00 pm.   

137.          Mr Crowley said that Jonathan had come in to say hello about 10 minutes before Mr O’Connor left.  He noted that Mr O’Connor in his “report” had mentioned that Jonathan “looked a bit stressed”.  He did not appear to Mr Crowley to be holding the kendo stick at that point.  Mrs Crowley confirmed that while Mr O’Connor was there, Jonathan had come in to say hello to him, without anything in his hands. 

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. 

Jason Morris’s observations of Jonathan

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.

145.          It seems likely that Mr Morris’s recollections shortly after the event were more accurate than those of six years later.  Furthermore, since the original recollection provides a better explanation for his failure to warn the Crowleys of Jonathan’s behaviour, there is no reason to suspect that his evidence at trial had been changed for a particular purpose.  Accordingly, I find that Mr Morris did not drive away from the Crowley home until he was aware that Jonathan was under the care of the Crisis Team.

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.

The Crowley family’s supervision 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.

151.          As mentioned, Mr and Mrs Crowley had lunch with their visitor, and when Mrs Crowley took some food out to the caravan for Jonathan she discovered that he was not there.  Some minutes later Mr Crowley set out in his car, intending to drive around the streets, apparently towards the hills above Chapman where family members often walked, in the hope of tracking Jonathan down.  Before he got to Doyle Terrace, only one block up the hill, he was stopped by police, and soon learned that Jonathan had been shot.

Significant phone calls

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.

Police Call 1

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.

159.          The other exhibit that was said to show that two calls were made by the police is a document tendered by ACTMH which is described as an audit of phone calls from the AFP Communications extension to the number of the Crisis Team Mental Health Triage Service on the day of the shooting.  It shows a call from the Communications extension to the Triage Service at 1:26 pm, lasting for 35 seconds (this appears to be Police Call 2).  It also shows a call from a different extension, identified as belonging to one P Lamont, made at 1:19 pm and lasting 4 minutes 36 seconds.  There is no evidence before me identifying P Lamont, suggesting that he or she was in any way involved in the search for Jonathan, or otherwise indicating that the call was relevant to that search.  In the absence of such material, noting that the P Lamont call is recorded as taking place 40 minutes later than the call shown in the ACTMH records, and noting that if the call was as brief as the ACTMH record suggests, it is unlikely to have taken roughly four and a half minutes, I can see no basis for treating this document as confirming the ACTMH record of Police Call 1. 

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).

164.          Counsel for the police, with some support from counsel for the plaintiff, sought to construct an elaborate argument to the effect that the phone call recorded at 12:39 pm had taken place, and that the failure by ACTMH to discover either the 12:39 pm record, or one of the 1:14 pm records, until shortly before the trial began, or alternatively the recent creation of those records by ACTMH in an alleged attempt to replace the original record for an unspecified purpose, showed a consciousness of guilt on the part of ACTMH staff.  Counsel for ACTMH pointed out that the simplest explanation for why the two records were not produced until much later than other documents was that there had in fact been only one phone call and that, having found a record relating to a phone call (one of the 1:46 pm records), ACTMH staff simply stopped looking, but then produced the other records when they did come to light much later.  In the absence of any other rational explanation the latter suggestion strikes me as more likely that those advanced by counsel for the police or counsel for the plaintiff, although I accept that it does not explain how or more importantly why the other records came to be made at all (a vice it shares with the suggestions put forward by counsel on behalf of the police and the plaintiff).

165.          I find that the 12:39 pm phone call from the police shown in ACTMH records did not take place.  I see no need to consider whether the call was recorded in error or with the intention of misleading.  Counsel for the police, in arguing that the 12:39 pm phone call was made, referred to the possibility of the record being a deliberate fabrication (without attempting to identify a motive for such conduct) but was not inclined to accept the possibility that it was simply an inaccurate record of a later call.  I find it hard to imagine what dishonest motive ACTMH could have had for incorrectly recording an additional AFP request for information that, if it had been made, was not adequately responded to by ACTMH.  I have no difficulty in imagining that records were made innocently but inaccurately.

Jason Morris’s call

166.          According to ACTMH records, Mr Morris’s report to Karen Eggins was received at 12:52:55 pm; that timing is consistent with evidence that Mr Morris had another work-related appointment at 1:00 pm.  The making of the phone call and its timing were not disputed. The record of the call is in the following terms:

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.

167.          In his police interview on 22 January 2002, Mr Morris initially confirmed the contents of the ACTMH record until Mr Franchie (see [44] above) intervened.  Mr Franchie queried the reference to “psychotic symptoms”, at which point Mr Morris said that he wouldn’t have said those words.  Mr Franchie then pointed out that “symptoms” should not have been mentioned in that situation (because a symptom is something the patient complains of, as distinct from a sign which is what an observer sees) and that it was not Mr Morris’s role to make comments distinguishing between signs and symptoms. 

168.          At trial Mr Morris denied having said “psychotic”, denied saying the samurai sword was “large”, and denied any mention of “large quantities of cannabis” or “smoking”; he did seem to concede that he might have mentioned (perhaps using the word “cannabis”) that Jonathan had given his marijuana to his parents.  Despite Mr Franchie’s enthusiasm to establish that Mr Morris did not say “psychotic” in his phone call to the Crisis Team, and despite Mr Morris’s denials at trial, I find that Mr Morris did say something of the sort.  I base this conclusion on:

(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). 

Andrea Twell’s call

169.          Andrea Twell was a psychologist and a mental health officer under the Mental Health (Treatment and Care) Act 1994 (ACT) (the ACT Mental Health Act).  She worked for the Crisis Team doing morning shifts.

170.          There was uncertainty about whether Andrea Twell’s phone call was made at all, and, if it was made, uncertainty about its timing and its contents.

171.          The call was entered in ACTMH records by Ms Twell as having taken place at 1:28 pm (36 minutes after Jason Morris’s call was recorded) in the following terms:

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.

Was there new information in the ACTMH record?

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. 

Keith Crowley’s recollection

173.          In his second police interview in March 2002, Keith Crowley was told by a police officer that a phone call from ACTMH to him at 1:19 pm was recorded in Telstra records.  No such records were put in evidence, and 1:19 pm is not shown as the time of a call from ACTMH in any record that is in evidence.  However, Telstra phone records are mentioned in the Operation Houdan report as confirming calls to and from the Crowley home and Mr Crowley’s mobile phone, and there was no apparent reason for investigating police officers to deliberately mislead Mr Crowley.  For these reasons, I consider it is probable that Telstra records showing a call from ACTMH to a relevant phone number did exist, although whether they showed 1:19 pm or another time that was mis-stated by the police investigator is another matter.

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. 

Andrea Twell’s recollection

177.          Ms Twell said in her police interview that she might not have known immediately of the call from Jason Morris taken by Karen Eggins, because she thought she had some other things to do elsewhere, and nor does Ms Eggins claim to have passed it on immediately (see [194] below).  However, Ms Twell conceded that when she did hear about the report from Mr Morris she was not unduly concerned and did not feel that it was a big emergency, so did not “race to the phone”.   

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).

Can these recollections be reconciled?

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.

Conclusions

186.          Despite the absence of new information in the ACTMH record, and despite Mr Crowley’s evidence at trial, it seems more likely than not that a call was in fact made by Ms Twell, and I find that such a call was made. 

187.          I further find that, whatever the exact content of the call, it was not effective to alert Mr Crowley to important information that was by then not just known to an ACTMH staff member (Mr Morris) but also recorded on ACTMH’s call register, being that Jonathan had been seen, less than three hours earlier, with something described in ACTMH records as “a large samurai sword”, and, as also noted in ACTMH records, “displaying psychotic symptoms”. 

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.

Police Call 2

Records of call

189.          ACTMH records show a call received at 1:14:46 pm as follows:

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”. 

Timing of call

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).

193.          The Communications transcript shows:

(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.

194.          The audit document referred to at [159] above shows a phone call from Communications to the Mental Health Triage Service at 1:26 pm for 35 seconds.  Police interviews with the ACTMH staff also suggest that the police phone call was made at or after 1:14 pm.  Karen Eggins, for instance, described the following series of events:

(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. 

195.          The call to Mr Crowley is recorded in the ACTMH records at 1:28 pm, which may well have been several minutes after the call finished, allowing for the time it would have taken for Ms Twell to type up a reasonably long file note (see [171] above); she said in her police interview that she believed she did that very shortly after having the conversation with Mr Crowley.  Ms Twell also said that she was told about the police call after she spoke to Mr Crowley, although she was not absolutely certain whether she had heard about it before or after typing up the record of the conversation with Mr Crowley.

196.          Ms Williams said that she did not know about either Jason Morris’s call to Karen Eggins, or about Andrea Twell’s resulting call to Keith Crowley, until after she had received a phone call from the police, but this would not rule out one or both of these calls having been made before the police phone call. 

197.          That is, all the evidence except the ACTMH record of the 12:39 pm call points to the first and only police request for information having been made no earlier than 1:14 pm and no later than 1:28 pm.  Only the ACTMH record and Ms Eggins’ reference to “about 1:15 pm” put the call close to 1:14 pm.  Noting the evidence that the CAD log times may well be several minutes later than the times of the events recorded in the CAD log, and the audit document showing what seems likely to be the relevant call at 1:26 pm, and allowing for the possibility that the time stamps of the phone records being audited might not align exactly with the time stamps on either the Communications records or the CAD log, all the police records suggest that the police phone call to ACTMH was made close to 1:25 pm, with a margin of error of one or two minutes either way, and I so find.

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.

Contents of call

199.          Jenny Williams, who took Police Call 2, said that she wasn’t given any more information than she had noted in the ACTMH record, but that she “didn’t ask for any more, I just didn’t know anyone”.  She did not think the police caller had mentioned Chapman. 

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. 

202.          As already mentioned, the Communications transcript prepared during the trial records a suggestion to check with ACTMH, apparently made at about 1:25 pm by an officer identified by Mr Tillmanns later as a Sergeant from Tuggeranong, Alf Turketo; Sgt Turketo mentioned the possibility of a client in the suburb who was schizophrenic or delusional.  Mr Tillmanns, who received the call from Sgt Turketo, contacted ACTMH but, in his words:

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”.

204.          In March 2002, two months after his police interview, Mr Tillmanns provided a description in writing to the best of his recollection of the contents of the phone call.  The exchange as recollected was as follows:

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.

206.          Simon Tillmanns claims to have specified Chapman in his call to ACTMH.  Having regard to Ms Twell’s vague and inconsistent comments in her police interview (at [232]-[233] below), this is not impossible.  He did not, however, claim to have referred to the possibility that the person was schizophrenic or delusional, or to have passed on any of the physical descriptions available to the AFP since 12:07 pm, namely that the male was tall and had dark curly shoulder-length hair (at [254] below).  This description, of course, exactly matched the description of Jonathan recorded by Jon Wells after his Monday night visit to the Crowley home (at [115] above).  I note that no explanation was given for the failure by the police to call Mr Tillmanns – Jones v Dunkel is also relevant in relation to this matter, but since neither party to the phone call has given evidence, neither the police nor ACTMH would seem to be advantaged in respect of the inferences I might draw from the evidence that is before me.

The MoU between the AFP and ACTMH

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.

209.          The relevant provisions of the MoU are as follows (they are not numbered in the MoU, so I have assigned them numbers for ease of future reference):

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.

216.          There is no hint in the evidence that any of the police dealings with ACTMH were conducted through a Mental Health Liaison Officer at the relevant (presumably Woden) patrol as contemplated by Item 3.4, or even that such an officer existed.

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.

Conclusions

218.          I find:

(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.

ACTMH records of police calls

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).

222.          In any case, even if the use of different signatures indicated something more sinister, for instance that one kind of record had been made by someone other than Ms Williams, it is not clear what the significance of that would be.  In particular, the only difference between the content of the two records of the 1:14 pm call seems to be that the later record does not identify the source of the call, in contrast to the earlier record which begins “Call From Police”.  What anyone might have thought they could achieve by creating, nearly two months later, a new record of a call from an unidentified caller, but at the same time and with the same content as the call already recorded in the ACTMH system as coming from the police, is beyond me (see also my comments at [164]-[165] above).

ACTMH’s response to Jonathan’s crisis

Response to early morning call

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.

Response to police inquiry

228.          The police inquiry that I have found was made around 1:25 pm went to Jenny Williams, and was passed on to Karen Eggins, who passed it on to Andrea Twell. Andrea Twell’s response was passed back to Karen Eggins who in turn reported back to Jenny Williams. No-one reported back to the police.

Jenny Williams to Karen Eggins

229.          Ms Williams said to Ms Eggins that “police were just asking there’s someone with a sword”.

Karen Eggins to Andrea Twell

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.

Andrea Twell to Karen Eggins

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. 

232.          Ms Twell in her police interview said that shortly after she spoke to Mr Crowley, Ms Eggins had come out of the triage room to report on the call from the police and to ask the Crisis Team workers about the police call:

[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.

233.          Asked about whether she had thought the person might be Jonathan Crowley, Ms Twell said:

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.

235.          Later in the interview Ms Twell said:

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.

Karen Eggins to Jenny Williams

238.          Jenny Williams said that Ms Eggins had “verified that there was a situation that was under control”. She believed that Ms Eggins had said something to her like “the swords weren’t on the fella anymore”, and Ms Williams believed “it was all okay”. 

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. 

240.          At this point in Ms Williams’ police interview, John Bubear interrupted to say that the wooden sword incident had not been associated by ACTMH with Jonathan, and that in fact the team thought it was a coincidence when Andrea Twell commented on Jonathan’s father having taken his weapons away.  He went on to make further remarks that appeared to be aimed at establishing that, despite what Jenny Williams had said in the interview (and presumably despite what both Andrea Twell and Karen Eggins said in their interviews), the connection between Jonathan and the person being asked about by the police had not been made by ACTMH and that if it had been, the police would have been contacted.  In an earlier police interview, with Karen Eggins, Mr Bubear said that “because there was no association between Jonathan and the call from police ops”, the record of the police call was identified as “anonymous male”.

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.

242.          Accordingly, I find that Andrea Twell, Karen Eggins and Jenny Williams had all recognised the possibility of a connection between their patient Jonathan Crowley and the man with the sword being sought by the police, but that none of them raised this possibility with the police (directly or indirectly) because of Ms Twell’s belief that as a result of her conversation with Keith Crowley, she knew that Jonathan “was at home and has handed in his weapons ... [and] was quite safe”, and despite Ms Twell’s belief that Jonathan had “a significant dislike of the AFP”.

243.          Ms Twell said in her police interview that in hindsight she remained happy with the decision she made to allow Mr Crowley to continue to monitor Jonathan’s situation instead of pursuing an involuntary admission, saying that, having regard to the potential for a siege situation if police had been called to the Crowley home, her decision “was probably the best decision I could have made”. 

Privacy requirements affecting the passing on of information

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.

The Crowley family – expectations and assumptions

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).

The police become aware of Jonathan Crowley’s disturbed behaviour

Reports from members of the public

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.

254.          At 12:07 pm according to the Communications transcript, an unidentified female reported having seen at the Chapman shops:

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”.

256.          At 12:11 pm the Communications transcript shows a report from an unidentified male of a man with a golden-covered samurai-type sword walking down the middle of Perry Drive looking “very grumpy”.  The man was described as wearing a “white-ish T-shirty sort of thing” and having “dark hair, very woolly”.

257.          At about 12:30 pm Jonathan spoke to a 15-year-old boy out the front of his house, telling the boy he was the son of God, that he had saved the earth and that if the boy disagreed with him he would strike him down.  The boy responded with “Yeah, ok” and Jonathan walked off.  The boy said in his police interview that he was not in fear at any stage, but he was watching the stick because he thought Jonathan might have been drunk or on drugs and “usually when someone tells you that they’re the son of God, you ... think, okay, that’s a bit weird”.

Bill Atkinson

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.

260.          At trial Mr Atkinson said that he had no training or experience in mental health matters.  He noted Jonathan’s “apparent appearance of unawareness of where he was and disconnection with the situation and the environment around him” and said that his approach to Jonathan on the road was “not to provide anything that might aggravate the situation, so I slowed down and tried to minimise my impact on his space as much as I could”.  Because of Jonathan’s behaviour on the road he was a risk to himself and possibly to the traffic.  Because of the potential for the stick to be used as a weapon, and the likelihood that there would shortly be a lot of children out in the playground of the nearby Chapman Primary School, Mr Atkinson thought Jonathan was also a risk to others. 

The initial police response

261.          The Communications transcript records a broadcast at 12:10 pm of the information provided by the unidentified female at 12:07 pm; the broadcast refers to Jonathan “playing chicken with the cars driving along Perry Drive just near the school”.  This broadcast was heard by SC Pitkethly, among others; he responded to Communications saying he was on Perry Drive and would take the job.  His call sign was Tango 84. 

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.

Andrew Oakley

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. 

264.          Mr Oakley described the following exchange:

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.

266.          Mr Oakley had trained with a wooden kendo training sword and knew that they did hurt when used in training, “let alone someone swinging them hard”.  For this reason he did not want to agitate Jonathan.  Jonathan made no specific threats, but Mr Oakley felt threatened and unsafe, and was quite worried for himself, even though he was wearing a helmet.  Mr Oakley thought Jonathan was agitated and obviously mentally unstable, judging by the writing on his chest and the fact that he was wielding a weapon.

267.          Mr Oakley used the phone number for non-emergency police attendance, but his reason for calling was that he felt threatened for himself and for the safety of other people in the street.  Those people, he said, included elderly people and young schoolchildren, although Mr Oakley conceded that it was then just before lunchtime rather than close to when school finished. 

Mrs Healy of Lincoln Close

268.          At about 1:10 pm, as a result of Mr Oakley’s report that the man he had encountered had come from 5 Lincoln Close, SC Pitkethly went to that address with another officer in another vehicle.  The house was occupied by an 82-year-old woman, Mrs Healy, but had been the Crowley family home for 20 years while Jonathan was growing up (there is no evidence that either Mrs Healy or the police knew this).  Mrs Healy did not give evidence, but in her police interview she described seeing Jonathan sitting on her front steps.  She spoke to him from inside her house, and locked the screen door as he approached.  He told her that he was “from Jesus Christ”, and that she had two hours to get out.  She told him to go away, threatened to call the police, and closed the front door.  While Jonathan bashed at the door, she picked up the phone, but didn’t call the police because when she turned around he had gone.  Mrs Healy had been almost immediately suspicious about Jonathan’s mental state; her first reaction to his reference to Jesus Christ had been “Well look ... what have I got here?”.  During the police interview she said that she had formed the opinion that there was something wrong with him:

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.

273.          Constable Paul Bailey had been on a motorbike doing traffic duties in the area.  He had heard some of the reports about Jonathan, although he was not aware of details.  He explained that:

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.

Police gather at Chapman

Involvement of OSG

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.  

Role of OSG

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.

Rendezvous point

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. 

278.          A map was spread out on the boot of a police car and there was discussion involving at least Senior Constables Pitkethly and Willis, Constable Bailey, DSC Carnall and Sgt Morris about how the search might be conducted and how Jonathan might be contained.  SC Willis understood that Sgt Morris had initiated attempts to get information from ACTMH about the identity of the person they were seeking.  Sgt Morris began to organise a systematic search by allocating streets for searching to some of the officers there.  It seems that there was no specific discussion, and no orders were given, about what to do if Jonathan was located, but Sgt Morris said in her first police interview (given on the Tuesday afternoon) that she had instructed everyone to “just use the utmost caution”.

279.          There was also some general discussion about the possible use of the OSG, and some specific discussion about that issue between Sgt Morris and DSC Carnall.  It is not clear from the evidence before me that these two officers had the same view about what the OSG members should or would do.  In her first police interview Sgt Morris recalled saying to DSC Carnall “We want to just take it slowly slowly, ... not escalate the situation, we want to negotiate”.  She also recalled mentioning “the general principles of safety” in connection with what OSG should do.  In her second police interview, Sgt Morris said that she was treating the OSG people as “just bodies for a search” who happened to be handy.  She believed she had told DSC Carnall that she wanted “none of this ... OSG stuff”, that OSG members taking part in the operation to deal with Jonathan were not to escalate the situation and were to take things “slowly slowly” or “softly softly” (both expressions were used by Sgt Morris at different points in her police interview), and to negotiate.  She believed that her intention to use the OSG members purely as extra resources was relayed to all officers present including Senior Constables Pitkethly and Willis.  She also believed that both officers were aware of her plan to “contain, negotiate etcetera”.

280.          At trial SC Pitkethly said that he didn’t know what was in Sgt Morris’s mind, but he assumed that she would have wanted the suspect cordoned, contained, and negotiated with, although not in any particular order. 

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.

282.          In his police interview, DSC Carnall gave a different impression of his discussion with Sgt Morris.  Among other things he said that she had agreed that the OSG officers would be “fully-kitted up”, including with helmets and shields, because he would not deploy his teams any other way.

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.

284.          Sgt Morris said that she didn’t have time to say anything because “everybody had sort of ... dispersed really quickly ... they just started - under their own initiative they all jumped”. 

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. 

286.          SC Pitkethly did not recall any other discussion with SC Willis after the broadcast came through.  In particular neither he nor SC Willis recalled Sgt Morris saying anything as they packed up, although SC Willis attempted to re-construct what Sgt Morris would have said if she’d said anything, and made the rather startling comment that he might have left the meeting place at that time even if Sgt Morris had in fact tried to have a discussion about what to do if Jonathan was located.  That comment was, however, qualified by SC Willis’s further comment that if Sgt Morris had in fact said “Don’t go yet, I’ve now got Mental Health on the phone”, he would have waited for the information they could give.

287.          Sgt Morris said she did not have a problem with the two officers leaving without speaking to her after the Communications broadcast, because SC Pitkethly had been in on the matter since the beginning and had the best relevant knowledge, and she believed they knew that the plan was to contain and negotiate.

288.          The question whether Sgt Morris had established a command post at the Chapman shops was raised in cross-examination at various points in the trial, and at one point counsel for the plaintiff sought leave to amend the pleadings in relation to this issue, but the application was withdrawn before it needed to be ruled on.  There were hints that whether there was a command post was relevant to whether Senior Constables Pitkethly and Willis acted inappropriately in leaving the gathering of police at the Chapman shops without any specific orders.  Mr Hazzard and Mr Jennings criticised the police officers for leaving a command post without instructions, but no evidence was put before me of what is involved in establishing a command post or how a command post can be recognised.  As well, in his closing submissions, counsel for the plaintiff indicated that he did not rely on any alleged negligence of the two officers in leaving the Chapman shops without detailed instructions.  In those circumstances, I can see neither a basis, nor a purpose, for making a finding about whether or not a command post had been established.  Accordingly, I merely use the term “rendezvous point” as used by some of the witnesses; I do not regard this as meaning anything more than simply the place at which police officers had agreed to gather.

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.

The events in Doyle Terrace

The location

291.          Perry Drive is the main street of the suburb of Chapman.  It curves through Chapman between Namatjira Drive in the east to Darwinia Terrace to the north-west with the local shops roughly halfway along Perry Drive.  Doyle Terrace runs south off Perry Drive at the eastern end.  It is a loop street, running in almost a complete circle, partly around the side of a reasonably steep hill to the south, until it meets Perry Drive again about 300 metres further west.  Lincoln Close is also a loop street, running off the eastern end of Doyle Terrace to the south.  Further along Doyle Terrace to the northwest, Hertz Place, a cul-de-sac, runs uphill, and almost opposite, Rickards Street runs downhill, from Doyle Terrace.

292.          The area above the residential blocks on the high (south) side of Doyle Terrace is part of Canberra Nature Park, designated as a reserve, which has walking trails used by members of the public.  The reserve is accessible from Doyle Terrace via walkways at the end of several cul-de-sacs including Hertz Place, via a walkway from Lincoln Close, and also from the back yards of the houses on the high side of Doyle Terrace.  In Doyle Terrace the numbers start at No. 1 at the eastern end.  In the stretch of Doyle Terrace where Jonathan was shot, the even-numbered blocks are on the low side of the street.  Jonathan was shot outside 54 Doyle Terrace, opposite the boundary between Nos 63 and 65.  That part of Doyle Terrace runs roughly south-east to north‑west between Hertz Place and Rickards Street to the north‑west and the western end of Lincoln Close to the south‑east.  From shortly after the Rickards Street intersection, Doyle Terrace has a gentle downhill slope in the direction of Lincoln Close.  

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.

Civilian witnesses

Allan Richter

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. 

295.          Mr Richter’s story as told in court seemed almost to consist of two different stories, a bare narrative conveying one impression that was being embellished in the telling to convey a rather different impression.  My impression that Mr Richter had a tendency to exaggerate is relevant to assessing his description of the subsequent encounter between Jonathan and the two police officers, so it needs to be explained.

296.          Mr Richter’s bare narrative covered the following events:

(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.

297.          In summary, when Mr Richter mocked Jonathan and told him to bugger off, Jonathan reacted by hitting him with the stick; in his police interview, Mr Richter noted that Jonathan had probably harassed him “for a good five to fifteen minutes before anything happened”.  When Mr Richter began to treat Jonathan’s religious delusions seriously (albeit unintentionally in the first instance), Jonathan calmed down or relaxed, continued with his religious exhortations and, having obtained Mr Richter’s repentance, moved on.  The overall impression conveyed by this story is of Mr Richter as a down-to-earth person who was initially disinclined to waste his time with a religious fanatic, who quite quickly realised that this was no ordinary religious fanatic but an armed and probably disturbed one who should perhaps be humoured rather than argued with, and who then did a fairly successful job of humouring Jonathan until he went away.  In his police interview on the afternoon of the shooting, Mr Richter said that the prodding had left neither marks nor any sensitivity anywhere on his body, and that the blow with the stick had left a red mark which he expected to turn into a bruise.  Mr Richter gave evidence that he had not felt threatened until Jonathan actually hit him, that Jonathan could have hit him a lot harder if he’d wanted to, and that he had challenged and rebuked Jonathan.

298.          Mr Richter’s basic narrative, however, was embellished with descriptions of him being terrorised by a big man who was “ranting and raving”, “yelling and screaming at the top of his voice” or “at the top of his lungs”, becoming more disturbed, becoming “more aggressive, to the point that he wanted to cause damage”, with a mad facial expression, giving the impression that he “was going to bite [Mr Richter’s] face off”, who “needed to cause damage to somebody” and who “very very definite[ly]” in Mr Richter’s view, “wanted to take a life”.  Mr Richter felt his life was threatened because Jonathan twice said to him that as Jesus Christ he had given Mr Richter life and that he could take it away when he felt like it.  Contrasting with some of his other evidence, Mr Richter said that he had never in his life been frightened like that.  

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.

Andrew Oakley

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. 

Discrepancy in Allan Richter’s evidence

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.

307.          It seems likely that after leaving Mr Richter on his hands and knees on the ground, Jonathan turned right towards Rickards Street and went some way down before turning back and heading up to Doyle Terrace again just as Mr Oakley rode along Doyle Terrace after coming down the hill from the reserve.  Mr Richter’s police interview suggests that his observation of Jonathan’s progress was similar to that of Mr Oakley, although he may in fact have inferred Jonathan’s detour down Rickards Street when he saw him come back along Doyle Terrace from Rickards Street.  It also seems likely that Mr Oakley and Jonathan came back past 58 Doyle Terrace, heading along Doyle Terrace away from Rickards Street, shortly after Mr Richter had recovered his composure and walked towards the nature strip to see whether anything was going on in the street. 

Leonard Richter

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. 

314.          However, it seems unlikely that Leonard Richter was in fact observing events in Doyle Terrace before the police car arrived.  In the statement he made to police less than three hours after the shooting, he said that when he left the house at No. 58, he could not see his father in the front yard, but then found him standing on the nature strip looking down Doyle Terrace, saying:

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.  

316.          It is hard to imagine that Leonard Richter was watching Jonathan in the street before the police arrived, but somehow failed to notice the police car travelling past him and coming to a stop between himself and Jonathan, and the police officers getting out of the car and engaging with Jonathan.  It seems far more likely that Leonard first joined his father on the side of Doyle Terrace after the police car stopped and the two officers got out; if that is correct, he was not there to see Jonathan walking down the street away from his father and towards a person on the other side of Doyle Terrace as the police car arrived. 

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. 

321.          I further find that apart from Jonathan, the only people in the relevant area of Doyle Terrace when SC Pitkethly stopped the police car were Allan Richter, who despite his earlier experience with Jonathan had gone out to the street to watch, from a distance he put at about 70 or 80 metres, as Jonathan walked down the street away from him, and Andrew Oakley, who was further down the street, 20 or 30 metres beyond Jonathan and riding his motorbike deliberately slowly ahead of Jonathan so he could keep an eye on him.  Only after the police car stopped and Jonathan turned away from Mr Oakley and towards the police car did Mr Oakley turn his motorbike around towards Jonathan and the police car, stop the bike and get off it.  Mr Oakley agreed that while he was “safely on the motorbike”, he had no reason to fear Jonathan.  I further find that at the time the police arrived, neither Allan Richter nor Andrew Oakley was in any immediate danger from Jonathan.  To the extent that either man suggested, either in a police interview or at trial, that he thought his life was in danger, I reject that evidence as inconsistent both with other evidence they gave about their views and, more importantly, with their actions on the day.

The police officers travel to Doyle Terrace

322.          From the rendezvous point at the Chapman shops, SC Pitkethly drove east along Perry Drive, then turned right into the first entrance to Doyle Terrace.  He was travelling faster than the 50 kph speed limit but not at “a terrific speed” and turned his roof bar lights on as a warning to other drivers and pedestrians in the area.  SC Pitkethly did not activate the siren, partly because, he said, in a search the siren might alert the person who is the subject of a search, but also because the siren can create a sense of urgency that “doesn’t really need to be there”. 

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. 

The police car is brought to a stop

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. 

The surveyor’s evidence

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).

333.          After argument, limited parts of Mr Quinn’s report, and related oral evidence, were admitted, on the basis that it was not expert evidence; while a surveyor might be slightly more reliable than a layperson about measuring distances, there was nothing in Mr Quinn’s evidence that could not have been given by any witness who had made the same measurements, without having to demonstrate any particular expertise.  The evidence admitted consisted of a map of the relevant part of Doyle Terrace on which were marked Jonathan’s notional location, and the three points along Doyle Terrace (towards Rickards Street) from which Mr Quinn’s colleague, standing at that notional location, could be seen (head and shoulders only, from the waist up, and from the ankles up) by Mr Quinn sitting in his car.  There were also photographs, taken from the “ankles up” observation point, of Mr Quinn’s colleague standing at Jonathan’s notional location.

334.          The relevant stretch of road, from a crest in the vicinity of Rickards Street, runs downhill at a fairly even slope until some way past the scene of Jonathan’s encounter with the police officers, so the accuracy of the distances given for the visibility of the person is not significantly dependent on the particular location chosen as Jonathan’s notional location.  On that basis, the marked map and the photographs suggest that on the relevant stretch of Doyle Terrace, in March 2009, a person of roughly Jonathan’s height standing in Jonathan’s notional location could have been visible to the occupant of a car from approximately 75 to 90 metres away.

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.  

Radio call about the sighting

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. 

341.          The failure to identify their location or call sign could have indicated a desire on the part of the two police officers to apprehend Jonathan without the involvement of the other police officers.  However, I am satisfied that there was no such motivation, and that there were other reasons for Senior Constables Pitkethly and Willis simply abandoning the radio when they got out of the car without, in effect, having finished their call.  My reasons relate to their general failure to plan or even discuss their next steps (see [436] below), which seems to rule out a deliberate mutual plan to hide their identity and location for whatever reason, SC Pitkethly’s comment in his second police interview that “we just both got out” (at [712] below) and SC Willis’s claim that once SC Pitkethly got out of the car, his “trained response” was to follow his partner (see [365] below). 

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.

The police officers encounter Jonathan

Witnesses to the encounter

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.

Timing of events

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.

The police car arrives

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.

351.          I have already noted Allan Richter’s tendency to exaggerate; having regard to SC Pitkethly’s evidence that he was driving at more than 50 kph but not at “a terrific speed”, I am inclined to accept the lower end of Mr Richter’s estimate and I find that the speed of the police car when SC Pitkethly saw Jonathan was about 60 kph.  As to the distance between the police car and Jonathan when the police car stopped, Mr Oakley’s evidence, which is supported by SC Willis’s evidence, seems more likely to be correct than Allan Richter’s evidence that the police car almost touched Jonathan, since Mr Richter was much further away from Jonathan and his view of Jonathan would have been blocked by the police car itself, whereas Mr Oakley’s view was of Jonathan with the police car behind him.  On that basis I find 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.

The police see 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. 

354.          In these circumstances there is no point in looking for any sinister explanation for the car stopping quite close to Jonathan.  Nor does it seem likely that SC Pitkethly consciously risked hitting Jonathan by intentionally failing to brake until he was close enough to Jonathan to ensure a threatening approach by the police car.  SC Pitkethly has denied this in his evidence, and there is no other evidence to suggest that SC Pitkethly had any desire to harm Jonathan, or even to frighten him.  Accordingly, I find that SC Pitkethly did not deliberately stop the police car dangerously or threateningly close to Jonathan. 

Jonathan’s reaction to the arrival of the police car

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.

356.          Jonathan turned to face the police car.  Mr Oakley believed that Jonathan had heard the police car, and turned around before it stopped.  As the car was stopping, Jonathan put his hands up in what Mr Oakley described as a “surrendering manner”.  He had his stick above his head, holding it with both hands horizontally; Mr Oakley agreed it was “like a weightlifter with dumbbells at full extension”, and this description was confirmed by SC Willis’s evidence, although SC Willis did not comment on the interpretation of this as a sign of surrender.  Allan Richter also said that he believed Jonathan to be surrendering when Jonathan first saw the police car.

357.          The evidence given by Mr Oakley and Mr Richter to the effect that they interpreted Jonathan’s actions on first seeing the police car as indicating a willingness to surrender is not sufficient for a positive finding that this was in fact Jonathan’s initial attitude to police.  On the other hand, the perceptions of Mr Oakley and Mr Richter are relevant to my consideration (at [759] below) of the police perceptions of Jonathan’s role in the incident. 

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). 

360.          SC Pitkethly’s evidence that Jonathan first approached SC Willis after the car stopped, Mr Oakley’s evidence that Jonathan “moved towards SC Willis”, and Allan Richter’s comment in his police interview that Jonathan approached SC Willis first support a finding that Jonathan advanced towards the passenger side of the police car after it stopped.  At [387] below, I reject SC Willis’s evidence at trial that Jonathan “headed for SC Pitkethly first”.  I find that Jonathan advanced towards the police car after the police car stopped, and that he advanced towards SC Willis’s side of the car. 

What else did the police officers see?

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.

The police officers try to communicate with Jonathan

365.          Both the two police officers and the two civilian witnesses agreed that the police officers got out of the car as soon as it stopped.  SC Willis gave evidence that once SC Pitkethly made the first move to get out of the car, “it was a trained response.  My partner went, I went.  It was just a matter of ... go.”

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]”.

372.          SC Pitkethly denied that he and SC Willis got out of the car yelling and screaming at Jonathan to drop his weapon.  In particular SC Pitkethly said that he didn’t believe they were actually yelling, although he conceded their demands were “loud enough for someone to hear”.  SC Pitkethly was vague about his role in the initial “negotiation” with Jonathan.  In his first police interview he said:

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.

377.          Accordingly, I find:

(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.

The reactionary gap

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.

The OC spray is used

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. 

387.          In his police interview, SC Willis had said that he and SC Pitkethly were both advancing on Jonathan, but at trial he said that he couldn’t explain why he said this, because it couldn’t have been the case given that Jonathan advanced on them to where his shins were touching the front of the police car and that “we were retreating basically the whole time”.  SC Willis said that he was trying to calm Jonathan down while Jonathan was advancing on SC Pitkethly who was retreating to the rear of the car.  Neither of SC Willis’s descriptions was confirmed by any other witness, and SC Pitkethly said that he didn’t think he backed off at all before spraying Jonathan.  Accordingly I disregard both what SC Willis told the police investigators about advancing on Jonathan and what he told the court about Jonathan initially pursuing a retreating SC Pitkethly to the rear of the car.  I am also unconvinced by SC Willis’s claim to have had his hands open and empty when he first got out of the car, but even if this is true, it must have been for no more than a few seconds before he took out his OC spray—not nearly long enough to constitute any serious “soft empty hands” negotiation (especially given my findings at [377] above about the nature of the “communication” with Jonathan).

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.

391.          I find:

(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.

Jonathan attacks SC Willis

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. 

396.          Andrew Oakley at trial and Allan Richter in his police interview both said that SC Willis had come out from behind his car door.  Jonathan hit SC Willis in the arm or shoulder region with a blow that seemed to Mr Richter to be a fairly heavy, forceful blow.  Mr Oakley said that SC Willis was still using the spray when he was hit.  He described SC Willis turning and putting his arm up in defence, and being struck around the back by a very heavy blow; Mr Oakley said the blow was aimed at SC Willis’s head but hit him across the back of his head and shoulder.  Mr Richter could not recall how many times the stick came into contact with SC Willis.  He didn’t know whether SC Willis “stumbled, tripped, or what”, but he went out of Mr Richter’s sight down into the bushes beside the road. 

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.

SC Pitkethly takes on Jonathan

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”. 

404.          SC Pitkethly said that Jonathan had the kendo stick raised above his head.  SC Pitkethly backed away around the front driver’s side of the car and towards the rear of the car.  Jonathan followed him, waving or swinging the kendo stick, to a point where the two men were about 10 metres further up the street beyond the rear of the car.  During their progress up the street, Allan Richter said, SC Pitkethly was yelling at Jonathan to drop his weapon and Jonathan was “challenging him with the stick ... pushing him backwards”.  Mr Richter said that SC Pitkethly again sprayed Jonathan at some point while he was being driven back, but that the spray didn’t seem to have any effect and that he heard what he believed was a can falling on the ground. 

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”. 

406.          At some point SC Pitkethly took out his baton, flipped it open and held it horizontally over his head to defend himself.  Andrew Oakley said that SC Pitkethly used it to block “the first head blow” which came from above Jonathan’s head and downwards, aiming for the top half of SC Pitkethly’s body.  SC Pitkethly then blocked another blow on his right hand side and possibly a third blow, which Mr Oakley thought had either just missed or had connected with the baton.  SC Pitkethly described this last blow as “a fairly forceful overhead strike”.  The kendo stick hit the baton, which in turn hit SC Pitkethly on the head, but with relatively little force, since the baton had already absorbed most of the force of the blow.  SC Pitkethly said that without the baton, he would have been hit by the kendo stick directly on the top of his head.  The baton landed on the ground.  SC Pitkethly could not remember whether he dropped the baton or whether it was knocked out of his hand, and Mr Oakley was not sure how SC Pitkethly had lost the baton either.

407.          Constable Bailey arrived in time to see Jonathan bring the kendo stick down and to see SC Pitkethly stumble slightly backwards and lose his baton.

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.  

SC Pitkethly uses his gun

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.

418.          An ambulance was called, and soon arrived.  Jonathan told the first ambulance officer on the scene that his name was Jonathan, but also that he was God and he wasn’t going to die.  The conversation between ambulance officers and Jonathan as he was transported to hospital was recorded and a transcript was in evidence.  During the trip Jonathan made, as well as rational responses about his physical condition, numerous comments indicating that he was still in the grip of his religiose delusions, including in the following exchanges with intensive care paramedic Greg Addison (I have corrected Mr Addison’s name in the following extract from the transcript of Jonathan’s trip to hospital):  

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.

Where was SC Willis?

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).  

423.          SC Willis said that while in the 10 to 2 position, he saw SC Pitkethly take out his gun.  He was still concerned for SC Pitkethly’s safety, and thought that he might have to take a shot at Jonathan if SC Pitkethly didn’t manage to stop him.  Once SC Pitkethly had drawn his gun, however, SC Willis dismissed any thought of running in and trying to tackle Jonathan, because this would have put him in the line of fire.  After Jonathan dropped to the ground, SC Willis went over to him and pulled the kendo stick away, not realising at that stage that Jonathan had let go of the stick and it was only held down by the weight of his body.

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.

425.          Having regard to:

(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. 

What planning had the two police officers done?

426.          Andrew Oakley’s reported sighting of Jonathan was broadcast by Communications while a group including Senior Constables Pitkethly and Willis, Constable Bailey and Sgt Morris were looking at a map and discussing how Jonathan might be located and contained.  No specific plans had been made, and no orders had been given, about what should be done when Jonathan was located, although Sgt Morris believed she had made it clear that her plan was for the police to contain and negotiate.  As already described, Senior Constables Pitkethly and Willis got straight into SC Pitkethly’s car and headed towards Doyle Terrace.  It was agreed at the trial that their 800 metre trip would have taken roughly 48 seconds (800 metres at 60 kph) depending on their speed.  It seems that they did not spend any of that time discussing what they might do if they did locate Jonathan.

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.

429.          SC Willis agreed that during the drive he hadn’t made any plan with SC Pitkethly as to what they would do if they found Jonathan.  He explained their failure to plan as follows:

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. 

431.          SC Pitkethly said that when he left the rendezvous point at Chapman shops, his aim was to find Jonathan and then to try to cordon and contain the incident.  He had wanted OSG to help with the search and to provide enough people to “cordon and contain” Jonathan when he was located.  SC Pitkethly said in cross-examination that he didn’t think he and SC Willis ever had any intention of approaching Jonathan and that he had no intention of trying to have any sort of physical conflict with Jonathan. Counsel noted that SC Pitkethly had been looking for Jonathan on and off for some time before he found him, much of that time without a partner, and asked how SC Pitkethly had thought he would deal with Jonathan if he found Jonathan while he had no police support.  SC Pitkethly said that if he had found Jonathan, he would have tried to communicate with him and get other police there to assist; asked whether he would have confronted Jonathan while on his own, SC Pitkethly said that perhaps he would have been comfortable, at a distance, standing outside the car and speaking to him.

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.

434.          At the trial, SC Willis initially said that when he and SC Pitkethly left Chapman shops, all they intended to do was to “get an eyeball” on Jonathan.  In cross-examination, SC Willis said that he knew what “eyeballing” meant, but that was not all he and SC Pitkethly intended to do; they also intended to cordon and contain Jonathan and await the arrival of other police officers.  SC Willis had earlier agreed that it could be physically impossible to contain a person in the street if they could run off down the street or into a house or a yard.

435.          It is clear, and unsurprising, that both police officers were hoping to find Jonathan or, in SC Willis’s words, to “get an eyeball” on him.  It seems, however, that each of them also had a very general expectation, or perhaps assumption, that if they found Jonathan, the next step would be to “cordon and contain” him.  It also seems that neither of them had articulated even to himself what cordoning and containing might require in the particular case; if this had been done, it should have produced a recognisable conflict between that expectation and their more general understanding that, on the one hand, it would be difficult if not impossible for two officers alone to cordon and contain a person in a public street with many possible escape routes, and on the other hand that the person they were looking for was heavily-built, armed and apparently mentally disturbed.

436.          I find that, as SC Pitkethly and SC Willis travelled along Doyle Terrace, they had no intention of trying to apprehend Jonathan and accordingly no thought that any discussion about how to do so might have been worthwhile.  At most they were each assuming that once Jonathan had been found, the next step would be to cordon and contain him.  By the time they found Jonathan in Doyle Terrace, they had made neither joint plans nor individual (even unspoken) plans about how to deal with Jonathan if and when they found him. 

Summary of findings and impressions

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.

445.          Finally, as noted above, SC Pitkethly’s single-handed struggle with a much larger and much enraged Jonathan Crowley would have been both dramatic and frightening for participants and onlookers alike.  However, I suspect that the events leading up to the point at which the police officers themselves initiated a dramatic confrontation were rather less dramatic than the two officers and Allan Richter have reported.  I have not been convinced by the descriptions given by the police officers or Mr Richter, not so much because they are at odds with the descriptions given other witnesses but because they are at odds with the behaviour of other witnesses, or in the case of Allan Richter, at odds with the witness’s own behaviour.     

Part 4 – The negligence claims

446.          The plaintiff identifies multiple instances of negligence by each of the several defendants.  There are also several claims among the three defendants, being claims for contribution or indemnity in respect of damages payable to the plaintiff, and also a separate claim in negligence by the second defendant against the first and third defendants in respect of the ongoing costs of care provided to Jonathan by the second defendant.  Except as mentioned below, these other claims are not dealt with in this judgment, and may be the subject of further submissions.

447.          Although in closing submissions counsel for the second defendant said that its case against the police is “on all fours” with the plaintiff’s claim against the police, and that if the police are not liable to the plaintiff then they will not be liable to the second defendant, the second defendant’s pleading in fact particularises several further instances of negligence by the police that have not been raised by the plaintiff.  I propose to address these particulars in the course of considering the plaintiff’s claims rather than risking the possibility that they will need to be addressed separately at a later stage.

448.          In relation to each of the negligence claims addressed in this judgment, there are three questions that need to be answered:

(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?

449.          Although the elements of a negligence claim can theoretically be analysed into a series of separate questions as set out above, it is well recognised that the questions cannot always be addressed separately and that sometimes the elements may be interrelated (for instance, a duty of care may be owed but only in respect of some kinds of damage).  It is also common for the issues to be considered in an order different from the one I have set out above.  I have however generally used that order as a framework for considering the claims.

Part 5 – Claims against the police – the applicable law

Do police officers ever have a duty of care?

450.          Counsel for the police made submissions to the effect that the police were not liable to Jonathan because police do not owe a duty of care in respect of any action taken in the course of police investigations or the suppression of crime.  I have concluded that the circumstances of this case do not preclude the existence of a duty of care owed by the police to Jonathan or, in the language used particularly in some of the English cases, do not give rise to an immunity from liability for negligence.

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.

Hill and the earlier English cases

452.          In Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (Hill), the House of Lords considered an action in respect of the allegedly negligent conduct of a police investigation into certain offences, said to have had the result that the offender remained undetected and committed a further offence.  Lord Keith of Kinkel, with whom Lords Brandon of Oakbrook, Oliver of Aylmerton and Goff of Chieveley agreed, at 59 described the question raised in the case as:

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.

453.          Lord Keith answered that question in the negative, both by reference to matters such as the difficulty of limiting the class of persons to whom the asserted duty would be owed (at 62) and by reference to public policy grounds, which can be summarised as the negative impact of such a duty of care on the proper conduct of the investigative operations of the police.  At 63 Lord Keith said:

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.

454.          Having posed the question in terms of whether there is “a duty of care to individual members of the public who may suffer injury ... through the activities of criminals”, Lord Keith pointed out at 59 that:

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.

455.          In Knightley v Johns [1982] 1 WLR 349 (Knightley), a police officer was found liable for his negligence in failing to close a tunnel after an accident, leading to a further accident in which another police officer was injured.  In Rigby v Chief Constable of North Hamptonshire [1985] 1 WLR 1242 (Rigby), police officers dealing with a siege in a gunsmith’s shop were found liable in negligence for damage caused by a fire because, in order to bring the siege to an end, they took action that they knew involved a risk of fire, knowing also that fire-fighting equipment that had earlier been at the scene had been taken elsewhere.  The fact that the defendant was, in effect, a police force was not seen as having any particular significance in argument.  For present purposes, it is also relevant to note that Taylor J accepted in Rigby (at 1254) that “there was a dangerous armed psychopath whom it was urgently necessary to arrest”, but nevertheless found the police negligent in taking the risky action in the absence of fire-fighting equipment.

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.

Zalewski v Turcarolo

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”.

The position in 1995

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”.

Uncertainties about the current position

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.

Recent cases relating to investigative powers

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

469.          Sullivan v Moody (2001) 207 CLR 562 involved actions brought by two men who had been accused of sexual abuse of their children, such accusations having been made as a result of the allegedly negligent actions of doctors who had examined the children and suggested that there had been sexual abuse.  Both doctors were performing their duties in the context of s 25(a) of the Community Welfare Act 1972 (SA), which required them to “regard the interests of the child as the paramount consideration”.

470.          The High Court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) at [57] referred to Hill, noting that:

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.

472.          As to the possibility of a duty of care being owed, the Court said at [60]:

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”.

480.          Santow JA mentioned two relevant exceptions to investigations immunity, being:

(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).

Police negligence in other contexts

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.

Klein—doubts expressed about Zalewski

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. 

NSW consideration of Klein

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”.

511.          In the course of discussing the need for coherence in the law and the problems raised by the recognition of conflicting or incompatible duties, Campbell JA noted the remarks of the High Court in Sullivan v Moody quoted at [470] above, and said at [128]: “Those remarks in no way suggest that, in all their activities, police have immunity from action for negligence.”  At [129] Campbell JA said that the only factor raised in Tyszyk as requiring a denial of a duty of care in the interests of coherence was that the police officers on the scene “were faced with a choice between continuing to give all their attention to the drainpipe, and dealing with the fallen tree”.  His Honour went on at [129]-[130]:

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.

Victorian consideration of Klein

521.          Richards was an appeal against a refusal to strike out a statement of claim.  The plaintiff had been injured by the allegedly negligent use of OC spray by police officers arresting an offender.  The plaintiff had been present in the shop where the offender was arrested and was exposed to the OC spray used by the police officers.

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.

525.          Redlich JA at [19]-[20] referred to the appellant’s “extreme proposition that the police were not by law constrained to exercise their powers in a reasonable manner”, and responded in these words:

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.

527.          The Court declined to find that the plaintiff’s pleading of a duty of care on the part of police was unarguable or untenable.  In doing so, the Court:

(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”.

Recent English decisions—Ashley and Van Colle/Smith

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.

529.          Action was taken by the deceased’s father and son. The causes of action relied on were assault and battery, or alternatively negligence, by the police officer in his shooting of the deceased; negligence and misfeasance in public office in relation to the police’s pre-shooting investigations and the briefing that was given to the officers who were to take part in the armed raid; and negligence and misfeasance in public office in relation to the post-shooting conduct of the police.

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]). 

535.          Lord Bingham of Cornhill (in dissent as to the result, but not apparently in relation to this aspect of his analysis) outlined the public policy justifications advanced in Hill that were still seen as relevant, being that the imposition of a duty of care in relation to police investigations:

(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]).

Conclusion – authority of Klein

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.

Stuart v Kirkland-Veenstra

538.          The case of Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 was raised in submissions made before an appeal from that decision was decided by the High Court in Stuart v Kirkland-Veenstra (2009) 237 CLR 215.  The case concerned the actions of two police officers who came upon the plaintiff’s husband apparently making preparations to commit suicide. They talked to him, and formed the view that he was not mentally ill but rational, cooperative and responsible.  He declined all offers of help made by the police officers, and said that he was going home, which they permitted him to do. Later that day he committed suicide in the same manner as he had apparently been contemplating before talking to the police officers.

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. 

Conclusions – the current 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).

547.          The relevant principles may be summarised as follows:

(a)      With some narrow and specific exceptions, police are not subject to a duty of care in relation to the conduct of investigations, including the identification and in certain contexts the apprehension of offenders, or in relation to the suppression of crime (Hill, Tame, Cran, Brooks, Cummins, Rickard and Van Colle/Smith).

(b)     Apart from situations involving the conduct of investigations or the suppression of crime in general terms, police may in some situations:

(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.

552.          Thus it appears that the existence of, or likely need for, a police investigation is not as such the factor that justifies the exclusion of a police duty of care in relation to the conduct of such investigations.  The relevant factors relate, rather, to the difficulty of identifying the class of persons to whom the duty would be owed, to the risk of subjecting police to irreconcilably conflicting duties, and to the public policy impacts such as the constraining effect of such a duty on the proper and effective conduct of investigations (see [535] above).  Those reasons have, in Hill and the cases in which it has been followed, justified the exclusion of a duty of care in circumstances which generally relate to claims arising from the nature, content or consequences of police investigations, including:

(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).

553.          The cases dealing with the civilian duty of care or an assumed duty of care, however, have in general not addressed the relevance or otherwise of an existing or potential investigation to the circumstances in which the duty of care has arisen or been assumed.  This seems likely to have been because, before Klein, such cases were easily distinguished from the investigations immunity cases.

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”.  

560.          If it is accepted that police who take control of a situation have generally assumed a duty of care to anyone directly caught up in the exercise of their authority, I do not see that a sensible distinction can be drawn between “innocent bystanders” so caught up and those who might be more directly the targets of the police activity (for instance a person whom police are seeking to apprehend). 

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.

563.          A finding of negligence may be less likely the more urgent and potentially dangerous the situation in which a police officer finds him or herself required to act; this should not mean that an actual, apparent, alleged or suspected offender has, in relation to his or her physical integrity, no claim to be treated with such care as is appropriate and possible in the particular circumstances, having regard among other things to the needs of other people involved.  The soundness of this principle is in my view even more apparent in relation to an offender who as a result of mental illness is not in any real sense in control of his or her actions.

Coherence

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.

565.          The preservation of coherence in the common law seems to require that a claim based on negligence should not be upheld if that would somehow cut across the operation of other parts of the law; for instance if the circumstances giving rise to the claim were such that:

(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.

575.          The proposition that the duty of care is not unqualified may seem to be trite; in fact, however, submissions made on behalf of the police to the effect that any duty of care to Jonathan would be irreconcilable with duties owed to other participants in the events in Doyle Terrace seem to imply that such a duty of care, and the duties owed to other participants in the events, would have been unqualified by the immediate circumstances and would not have been able to be prioritised as circumstances developed.  Counsel for the police sought to identify the duties owed by the police that would have been irreconcilable with a duty of care to Jonathan, as follows:

[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.

580.          I am satisfied that the other police responsibilities identified by counsel were not “irreconcilable” with a police duty of care to Jonathan in the Sullivan v Moody sense, and nor did they “trump” any such duty in the Fahy sense.

581.          I am accordingly satisfied that a finding that police may assume a duty of care in taking control of a situation, and that the duty of care so assumed may extend to all individuals caught up in that assumption of control, would not subject police officers to irreconcilably conflicting duties, and would not on that ground detract from the coherence of tort law.

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.

583.          I do not see any need to respond to counsel’s reliance on these comments in the specific contexts in which counsel referred to them.  Instead, I simply note that the comment that sometimes a plaintiff with “very good reason to complain of the police handling of matters affecting them will not have a remedy in negligence” may be a useful reminder to courts not to be led astray by hard cases, but it is not helpful in determining whether the law provides a remedy in negligence in any particular case.

Part 6 – The plaintiff’s claims against the police

Did the police owe a duty of care to Jonathan?

Relevance of Jonathan’s cannabis use

584.          In considering whether police owed a duty of care to Jonathan, it is useful to deal first with the implication running through the defence made on behalf of the police that Jonathan had caused, or at least contributed to, his psychotic episode (and therefore to its tragic outcome) by his long-term and substantial use of cannabis.  It was not disputed that he had been a regular user of the drug in reasonable quantities, and the implication that this had contributed to the psychotic episode, while not supported by any expert evidence, was not challenged.

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.

Assumption of duty of care

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. 

588.          This does not mean that the arrival of the police officers as such was an assumption of control; if SC Pitkethly had reversed the police car back up Doyle Terrace to a point from which they could simply observe Jonathan until other police officers arrived, they might well not have assumed any duty of care at that stage (Tyszyk; Ansett). However, as soon as the two officers got out of the car and starting giving orders to Jonathan, they were clearly exercising their authority as police officers and taking control of the situation.  I am satisfied that in taking control of the situation, Senior Constables Pitkethly and Willis assumed a duty of care to those willingly or unwillingly caught up in that situation, being at least Jonathan and Mr Oakley and probably the Richters and any other member of the public who strayed into the immediate vicinity of the confrontation.

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.

595.          Accordingly, I am satisfied that a finding of a police duty of care in the current case is not inconsistent with any sustainable basis that has been advanced for not subjecting police to such duties.

Did the police breach their duty of care?

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.

599.          The negligence alleged against SC Willis reflects some elements of the negligence pleaded against SC Pitkethly in relation to the manner and circumstances in which Jonathan was confronted by the two officers, including a specific reference to the use of OC spray.

600.          The second defendant added several further particulars of negligence for the purposes of its claims against the first and third defendants.  They concern further failures in relation to SC Pitkethly’s dealings with Jonathan, SC Pitkethly’s failure to call for help from SC Willis and Constable Bailey, and the failure of those two officers to come to the aid of SC Pitkethly.

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.

The significance of training and instructions in relation to breaches of duty

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. 

AFP training

AFP protocols, policies, guidelines and training documents

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.

612.          The following provisions are directly relevant in this case: 

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.

614.          There seems to have been a considerable degree of overlap between the various “safety” documents, apparently reflecting a tendency to refine and re-badge essentially the same material for different audiences or different purposes.  The Ten Safety Principles for Operational Policing (the Ten Safety Principles) and the ACT Region 10 Point Safety Plan (ACT 10 Point Plan) both consist of the following material (neither of them has a date, a source, or anything indicating their status, but counsel for the police said in court that the ACT 10 Point Plan was in force as at 11 December 2001, the day of the shooting):

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.

615.          The Police Safety Principles (Circular Model) (the Safety Principles Circular Model), sets out, around a circle, a list of options for police responses, being (from the top moving clockwise) Presence; Cordon & Contain; Firearms/Lethal Force; Soft Empty Hands; Police Dogs; Batons/Impact Weapons; Hard Empty Hands; Tactical Disengagement; OC Chemical Munitions.  Within the circle are the words “Communication” and “Assess and Re-Assess” in large font, and in much smaller font (starting from the left side) the words Reasonable; Evaluation; Safety; Preparation; Objectives; Negotiation; Sensitivity; Empowerment, the initial letters of which spell out “RESPONSE”. 

616.          Underneath this circle is a more obvious version of the RESPONSE mnemonic, as follows:

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

617.          Also in evidence was a document headed AFP Response Options: Conflict De-escalation Model, which, it emerged, was prepared by Federal Agent Ben McDevitt of the Defensive Skills Training Section and considered by senior AFP officers as early as 1997, but never formally adopted; in 1997 the obstacle seemed to be lack of resources, but Federal Agent Rath said at trial that at some point before 2001 the AFP had adopted a different model, being the Safety Principles Circular Model.  The use of the draft document in the trial was a significant distraction in the efforts of counsel to establish SC Pitkethly’s understanding of relevant requirements as at December 2001 (see [639] below).  

618.          As to the significance of the various AFP documents, Federal Agent Rath said that breaches of CO3 could attract at least disciplinary action.  Compliance with other principles and guidelines in force was required to the extent that circumstances permitted, but it was recognised that sometimes different principles or guidelines could be in conflict with each other, and there was no expectation that all such principles or guidelines could be applied in all cases.  As an example he noted the possible conflict between the requirement for police on urgent driving duty to use flashing lights and sirens in the interests of traffic safety, and the need to avoid approaches that could exacerbate a situation involving a mentally ill or dysfunctional individual.  Documents such as the Ten Safety Principles offered, in Federal Agent Rath’s words, a compendium of skills for handling potential conflict situations, from which an officer needed to choose through a process of assessment and re-assessment. 

619.          Federal Agent Rath said that the Safety Principles Circular Model was “perhaps the most useful tool for describing the link between the operational safety technique(s) and the principles prescribing their application”, in that it emphasised the need to use the various techniques (eg communication, police dogs, and empty hands) through a continual process of assessment and re-assessment against the “principles” of reasonableness, evaluation, preparation, objectives, negotiation, sensitivity and empowerment.

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).

621.          A careful comparison of the Ten Safety Principles and the Safety Principles Circular Model indicates that essentially the same concepts are reflected in both.  To my mind the Ten Safety Principles does a better job of conveying the important messages, perhaps because each principle consists of an instruction or statement with a verb, while the Safety Principles Circular Model provides less explicit advice in some cases, and a less clear sense of priorities, possibly to satisfy the need to shoehorn the relevant concepts into a mnemonic.  For instance, the Ten Safety Principles gives very explicit directions about the importance of avoiding the use of force:

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.

629.          Module 106 contains detailed training material about dealing with persons suffering mental illness, with a focus on violent behaviour by the mentally ill.  It notes, among other things, that “in the absence of explicit threats, predicting violence in somebody who has never been violent in the past is virtually impossible” and that “Mental health and other professionals are very inaccurate when predicting violence in the mentally ill, usually achieving a success rate of less than one third”.  The module refers to examples of previous police involvement with mentally ill persons, including fatal and other shootings of the mentally ill in Victoria and in the ACT, and deals with matters including the nature of mental disorders, common symptoms of serious mental disorders, precipitating factors, skills for managing violence, operational safety principles (using the same headings as in the Ten Safety Principles and the ACT 10 Point Plan), attitudes and thinking styles, communication, and suicide.  “Key points” for effective communication are listed, both in the main document and in the Participant Handout, as follows:

 (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.

630.          The Participant Handout also notes in its second paragraph that “Dealing with persons suffering a mental illness/disorder may be both unpredictable and difficult”.

Training – general

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. 

632.          Federal Agent Rath said in his written report that:

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.

SC Pitkethly’s familiarity with AFP documents

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.

639.          SC Pitkethly’s familiarity with particular AFP documents was tested extensively in cross-examination.  An inordinate amount of time was spent, and a lot of confusion generated, in the course of establishing that although he was familiar with the Safety Principles Circular Model, he was not familiar with the Conflict De-escalation Model mentioned at [617] above or, more significantly, with the Ten Safety Principles, the effectively identical ACT 10 Point Plan, or the documents in evidence relating to dealings with mentally disturbed people.

640.          If the Conflict De-escalation Model was only ever a draft under consideration, SC Pitkethly’s ignorance of it is hardly surprising.  What was surprising was the treatment of that document and the Safety Principles Circular Model by the parties.  The Conflict De-escalation Model was apparently produced by the AFP as part of the pre-trial discovery process, and it was used at length in cross-examination of SC Pitkethly.  The Safety Principles Circular Model was apparently not specifically discovered, although that document was attached to both reports provided by Federal Agent Rath, dated 14 March 2002 and 25 January 2009 respectively.  Federal Agent Rath’s first report was in fact a witness statement, and it is not clear whether it was produced in the course of routine discovery, but the second report, which complied with the requirements for expert reports, appears to have been made available to the plaintiff well before SC Pitkethly was cross-examined.  SC Pitkethly had been extensively cross-examined about other documents, and had repeatedly denied having seen the Conflict De-escalation Model and repeatedly insisted that the material he regarded as authoritative was different from any of the material drawn to his attention by counsel. Only after this, several weeks into the trial and following a call by the plaintiff for its production, was the Safety Principles Circular Model formally put in evidence.

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.

642.          One significant difference between the two models was that the Conflict De‑escalation Model set out the response options around a half-circle and apparently in order of severity (beginning with “Presence” and ending with “Firearms/Lethal Force”), whereas the Safety Principles Circular Model described at [615] above sets the response options around a full circle. 

643.          SC Pitkethly saw this distinction as important, because it reflected the distinction between what he said was the old approach to the use of force as a linear stepped process (under which, he said, each force option had to be tried before an officer could abandon it and move to a more serious kind of force) which he believed had been abandoned in the early 1990s, and the new approach in which force options were not seen as sitting within a hierarchy but as simply equal options, to be used as considered necessary through a constant process of assessing and re-assessing the particular situation as it developed (889).  This distinction might have been important in any argument about whether SC Pitkethly had applied his options in the required order.

644.          As already mentioned, it emerged at trial that SC Pitkethly was unaware of the existence of the Ten Safety Principles or the effectively identical ACT 10 Point Plan and the material contained in those documents (at [614] above).  It is unnecessary to describe how this emerged, but the effect was that SC Pitkethly was not willing to concede that he had ever used the principles set out in the Ten Safety Principles and the ACT 10 Point Plan, and distinguished the Ten Safety Principles from “the more modern document that I’ve seen”.  He did, however, agree that he had heard of all the 10 principles as principles to be applied for safety when dealing with suspects and that they were generally reflected in the Safety Principles Circular Model.  He said he had been fully and regularly trained in understanding those latter principles and applying them in police work, including in conjunction with CO3. 

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.

Training—use of OC spray

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.

653.          Federal Agent Rath gave evidence about what was known in 2001 about OC spray and its use, and what would have been included in police training.  He said that in 2001 police would have been taught:

(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.

Training—OSG members

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.

Findings about training

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.

Determining breaches of duty—general principles

662.          The principles for determining whether any duty of care to the plaintiff has been breached were set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, as follows:

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.

663.          Those comments were affirmed by a majority of the members of the High Court (although not the same members who made up the majority in the decision) in Fahy (Gleeson CJ at 490-492, Gummow and Hayne JJ at 504-506, Kirby J at 518-528).  In Fahy, Gummow and Hayne JJ approved Hayne J’s earlier comments in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124] that:

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).

Foreseeability in police dealings with mentally disturbed people

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. 

666.          Several witnesses mentioned Project Beacon, initiated in 1994 by the Chief Commissioner of Victoria Police to implement the “Safety First Philosophy”.  That initiative was reviewed in 2005 in the Review of Fatal Shootings by Victoria Police (Report of the Director of Police Integrity, Office of Police Integrity, Victoria, November 2005)(the Review), which reported that there had been 16 fatal shootings by Victoria Police in the 10 years since Project Beacon (1994) and 32 shootings in the 15 years before then.  The Review noted at page 2 that:

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.

667.          Those figures suggest that Victoria Police had between 1980 and 2001 fatally shot at least 10 mentally disturbed people, and possibly as many as seven more (the total number shot between 1994 and 2005).  No figures were available from any other jurisdiction, but mention was also made in evidence of the police shootings of Roni Levi on Bondi Beach in 1997 and of Warren I’Anson in Canberra in 1995.

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.

Failures relating to procedures for dealing with persons acting in an aberrant manner

671.          The plaintiff says that the AFP was negligent in failing to have a working protocol allowing effective inquiries to ACTMH about persons acting in an aberrant manner, failing to train AFP officers in the appropriate inquiries to be made of ACTMH about such persons, and failing to supervise and enforce orders and protocols for dealing with such persons.

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.

Failures in relation to the use of OC spray

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.

Negligence alleged against SC Pitkethly

Role of expert witnesses

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.

Preliminary failures

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.

Negligence in relation to the use of the police car

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.

Negligence in confronting Jonathan

690.          The plaintiff says that SC Pitkethly breached his duty of care in a number of respects in confronting Jonathan (whom he saw as a “mental patient”), as follows:

(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.

691.          The plaintiff also asserts vicarious liability on the part of the AFP for the actions of SC Willis, whose negligence is particularised, in terms similar to those used in relation to SC Pitkethly, as described in paras [690](b), (c), (d) and (e) above. 

692.          The second defendant, in its claim for contribution and indemnity and its further claim for damages against the AFP in respect of the costs of providing ongoing health care to the plaintiff, particularises several further acts of negligence, as follows:

(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.

Planning and risk assessments

The evidence of the two police officers

699.          Possibly as a result of excessive examination, cross-examination and re-examination, and the tendering of several earlier descriptions of their experiences that had been provided by each officer on different occasions since the shooting, it is difficult to define the assumptions, beliefs, intentions and thought-processes of the two police officers.

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”. 

704.          Both police officers also seem to have believed that in the second encounter between Andrew Oakley and Jonathan, Jonathan had attacked Mr Oakley, although it is clear that the message broadcast by Communications (at [283] above) said nothing of the sort.  SC Pitkethly had mentioned in his first police interview his belief that in Doyle Terrace Jonathan “had attacked the postman again”. In his second police interview he had said that Jonathan “didn’t seem to have any purpose just apart from chasing the postman and trying to kill him”.  At trial he recalled making that comment in the interview, but he didn’t know if that was really what he thought at the time of the incident.  SC Willis had also told investigating police that the postman “had already been attacked once before, said he’d been hit by this male again”.  At trial, SC Pitkethly said that no-one had ever pointed out to him that he appeared to have misunderstood the Communications message, and he didn’t know where he had got the idea that Mr Oakley had been attacked in his second encounter with Jonathan. 

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).

712.          SC Pitkethly’s failure to advert to these risks is reflected in his comments in his second police interview:

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). 

714.          One of the issues that should have played a key role in planning and risk assessment was the clear recognition by both police officers that the person they were looking for was mentally disturbed.  

715.          SC Pitkethly gave evidence that he thought the person was probably a “mental patient” and that it was obvious to him that the person had some significant mental problems; in his second police interview he said “[a mental patient was] the only thing it could’ve been”.  SC Pitkethly said in that police interview that he had dealt with “hundreds of mental patients”, and at trial that he had previously “almost always  ... had success with mental patients”, that in his experience “police generally do get on quite well with them” and that he had in the past “got on quite well”; he was confident he could “effect some communication” with Jonathan.  He knew there was a chance they would be attacked, but police weren’t generally attacked by mental patients because communication was quite often very effective.  Normally, if communication and negotiation didn’t work, police would try to back off and take it from there. 

716.          SC Willis said that before they left the Chapman shops “it was blatantly obvious that [the person] was suffering a severe psychotic episode and was a general danger to the public”.  He believed that Jonathan’s religiose delusions indicated a severe mental dysfunction.  SC Willis had had a lot of previous encounters with mentally disturbed people, and demonstrated some recall of the general principles for dealing with such people that were taught to AFP officers, including trying not to be threatening but setting clear ground rules.

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.  

718.          SC Pitkethly’s failure to seek advice from ACTMH before getting out of the police car is appropriately considered as an element of planning. Counsel for the police gave the following explanation for why the police only asked ACTMH for help in identifying Jonathan rather than help in dealing with him, as contemplated by the MoU:

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.

720.          The role of OC spray in any apprehension does not seem to have been the subject of any real planning or risk assessment. Rather, both officers seem to have assumed that OC spray would be used if required.  SC Willis said that when he and SC Pitkethly got out of the car they didn’t intend to use anything, and the OC spray was just a tool they had available if necessary.  They did not consider, before getting out of the car, whether they could sensibly place any reliance on OC spray to facilitate the apprehension of Jonathan if he did not cooperate with their initial demands.  They did not take account of police training to the effect that OC spray worked on 80% of people 80% of the time.  They did not think about the fact that given Jonathan’s mental state, he was quite likely to be in the 20% of people not affected (not specifically because he was mentally disturbed but because he was not functioning normally and might well have been “task-focussed”). 

The views of the expert witnesses

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”.  

731.          Mr Schuberg noted that the two police officers knew that Jonathan had frightened an old lady and the postman, but that he hadn’t caused any injury; on this basis, he said, it was reasonable for them to expect that Jonathan would not attack them.  Mr Schuberg was sure that the two police officers would not “have wanted that incident to go the way it did”, but he conceded that he didn’t know what they intended to do and didn’t believe they had any clear idea themselves about what they would do.  Mr Schuberg said that the police officers got out of the car, he assumed, to attempt a peaceful negotiation, but Jonathan’s actions in “advancing on them in a very menacing and aggressive manner took them by surprise and put them on the back foot”.  The situation, he said, was out of control from the start through no fault of the police; “the officers had no control over the situation because of Crowley’s reaction”.

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”. 

737.          In relation to whether Senior Constables Pitkethly and Willis could have hoped to contain Jonathan while there were only two of them, Federal Agent Rath pointed out that it was possible for a police officer to “exert dominion” over a person, as long as the person “submits to dominion”; thus, it would not have been impossible for containment to be effected by one or two police officers.  He did not, however, comment on whether the two police officers had any basis for expecting that Jonathan would “submit to their dominion”. 

738.          Federal Agent Rath and Mr Schuberg both conceded that Jonathan’s behaviour was unpredictable and that a violent response was one of the possibilities. Despite this, neither of them seemed to accept that the police officers’ failure to anticipate (or at least allow for) Jonathan’s violent reaction reflected a failure in their planning and risk assessment; if anything, the impression conveyed was that their failure to anticipate accurately was Jonathan’s fault, as for instance in Mr Schuberg’s comment that “the officers had no control over the situation because of Crowley’s reaction” and Federal Agent Rath’s reference to Jonathan’s “uncompromising” manner.  SC Willis took a similar approach; in explaining why the original intention to just “eyeball” Jonathan and then await the arrival of other police officers was not maintained, he said “It was Mr Crowley’s actions that changed the course of events”.

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.

744.          In Kirkland-Veenstra v Stuart there is a description at [9] of the approach taken by the two police officers on observing Mr Veenstra’s car parked in a remote location with a tube running from the car’s exhaust to the rear window.  Warren CJ said: “Evidence at trial revealed that [the police officers] discussed, for reasons of risk management and safety, how they would approach the car.”  At trial I pointed this out to counsel for the police in the context of the planning that might have been done by the two police officers in this case.  Counsel’s comment on this example of police planning and risk assessment in what might well have been a life and death situation might fairly have been described as “non-responsive”; he said that “In terms of what police do ... common experience tells us ... They enforce the law, they prevent crime, they look after property ... they act in accordance with their training and experience”.

Findings

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.

747.          It is clear from the evidence, and accordingly I find, that no worthwhile planning or risk assessment, however brief or informal, took place before Senior Constables Pitkethly and Willis got out of the car.

748.          I further find that the mismatch, between Jonathan’s behaviour and the police officers’ unarticulated assumptions that (despite all their training) they could predict Jonathan’s response and that it would be benign, cannot be attributed to Jonathan’s behaviour rather than to the police officers’ inadequate consideration of all the relevant circumstances.

Reasons for getting out of the car

Danger to members of the public

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.

753.          It is important to distinguish the urgency of locating Jonathan (which was undisputed) from the urgency of apprehending him once he had been located.  The urgency of apprehending him, once located, could only be based on imminent danger to someone, whether a member of the public, a police officer or Jonathan himself.  This was expressly stated by Mr Jennings, and implicitly conceded by Mr Schuberg and Federal Agent Rath in their emphasis on the imminent danger to Andrew Oakley.  This distinction might also have been relevant in Rigby, in which, as noted at [455] above, police were found to have been negligent in acting in the absence of fire-fighting equipment even though there was “a dangerous armed psychopath whom it was urgently necessary to arrest”; there was apparently no evidence in Rigby that anyone had been at immediate risk from the dangerous armed psychopath (such evidence might have produced a different result in that case).

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.

756.          When Senior Constables Pitkethly and Willis reached Doyle Terrace, they knew, or could have known (in the sense that the information had been broadcast by Communications or, in relation to Mrs Healy, had been acquired by SC Pitkethly personally) that:

(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).

757.          The two police officers did not know that Mr Richter was in the street observing Jonathan’s progress.  As to whether they knew of Mr Oakley’s presence, the information they knew or could have known included that Mr Oakley had located Jonathan and intended to keep him under observation. If they had thought about this, they would have realised that this meant Mr Oakley was likely to be fairly close to where they found Jonathan; however both their immediate reactions to the Communications broadcast, and their later reports of what they understood from that broadcast, indicated that what they had taken from that broadcast was not an additional incorrect understanding that Mr Oakley had been attacked but an alternative incorrect understanding to that effect.  That is, there is no reason to believe that they expected to find Mr Oakley anywhere near Jonathan when he was located.

758.          Whether or not either of the two police officers actually believed at that time that Jonathan had tried to kill Mr Oakley (either at all or for the second time) does not seem to matter, given that I have found that neither of the two police officers was aware of Mr Oakley’s immediate presence before they got out of the police car. There is no evidence at all that imminent danger to Mr Oakley was in their minds at that time.

759.          Furthermore, both Mr Oakley and Allan Richter interpreted Jonathan’s initial response to the police arrival as showing an intention to surrender (at [357] above); whatever Jonathan’s real intention, the two police officers presumably saw the same actions that the two witnesses saw.  Those initial actions did not apparently convey an impression of aggression, and accordingly should not have led the two police officers to believe either that Jonathan’s apprehension was urgent in the interests of public safety, or that any such apprehension was best achieved by initial aggression from them.  In either case, once Jonathan had turned towards the police car, it would have been clear that no-one else was in immediate danger from him.  

760.          There is also the question of the level of danger posed by Jonathan’s possession of the kendo stick.  As noted at [100] above, the kendo stick was made of bamboo and leather with no exposed sharp edges, was about 1.2 metres long and weighed something less than 750 grams; unlike a gun or another weapon that launches projectiles, the kendo stick realistically had no potentially dangerous operation to a person who was further away from the person with the stick than the length of the stick plus an arm’s length (a maximum of about 3 m) – I discount the possibility of the stick inflicting any serious injury if used as a javelin, even assuming it could have been thrown with any degree of accuracy.  Unlike a knife or other bladed weapon, the kendo stick would have needed a fair bit of force behind it to make it dangerous, and had little or no potentially dangerous operation in a close encounter unless the person wielding the stick had the opportunity to take a high or wide swing with it, probably using both hands; this particular feature seems to exclude it being of any real use to a person simultaneously trying to restrain a hostage.  I do not see any need to make a finding whether a kendo stick could ever be used to inflict a fatal injury, but the having regard to the attributes of the kendo stick that I have mentioned, I find that when the two police officers came upon Jonathan in Doyle Terrace, he had no immediate capacity to inflict a fatal injury on, or to take as a hostage, any member of the public, whether or not such a person was visible to the two police officers.

The views of the expert witnesses

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. 

Findings

767.          I find that when the police car stopped, there was no imminent threat to Andrew Oakley or to anyone else, and there was nothing that required Senior Constables Pitkethly and Willis to get out of the car immediately. Whether getting out of the car immediately was the only option open to the two police officers is considered further at [778]-[785] and [841]-[844] below.

Availability of extra police

Significance of extra police approaching

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”. 

769.          Evidence from police interviews with officers such as Sgt Morris indicated that many if not all of the police officers reached the scene of the shooting within seconds after it happened.  Constable Phillip Eagles said in a police interview that he and Constable Julian Mann were driving along Doyle Terrace behind an OSG vehicle and that they heard the radio report that Jonathan had been shot just before their car came over the crest in Doyle Terrace, at which point they could see Jonathan on the road; he believed they arrived within five seconds of hearing the report of the shooting. Constable Mann said that it was within about three seconds after they heard the radio transmission that they came over the crest of the hill and saw Jonathan on the ground. Noting that an OSG vehicle was in front of the car containing Constables Eagles and Mann, and that Sgt Morris said in a police interview that her car was right behind the OSG vehicle and another police car, this means that a substantial group of police officers (around seven on the assumption that each OSG vehicle contained four OSG members) reached the location in Doyle Terrace less than a minute after Senior Constables Pitkethly and Willis had arrived there.

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.

Scope for staying in the car

778.          When the police car pulled up close to Jonathan in Doyle Terrace, several other courses of action were theoretically available to the two police officers as well as the one that they took, namely getting out of the car immediately.  One was to reverse the car some distance away from Jonathan and watch him until reinforcements arrived.  Another was simply to sit in the car where it had stopped, and either observe Jonathan, or to try to communicate with him, from the safety of the car. 

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.

783.          Federal Agent Rath said that retreat or “tactical disengagement” is one of the options available to police officers, and that in dealing with mentally disturbed offenders the possibility that some forms of police presence might unduly escalate a situation is a consideration. Asked about a statement in the explanatory notes for the AFP Conflict De-escalation Model that “Risk taking and the ‘courage culture’ are discouraged”, Federal Agent Rath agreed that this meant that “you shouldn’t let bravado take over from the proper assessment and reassessment of the situation”. He noted the “overwhelming expectation from the community that police will take action to protect”, but said that “in today’s culture”, there was no risk of police officers overcome by excessive bravery deciding “to take on an offender or suspect, and put themselves and the offender, and everyone else, at unnecessary risk”, although there had been such a risk in the past.

784.          Mr Schuberg said that Jonathan could have run into the bush or into a nearby park or house and escaped completely, or he might have taken a hostage or assaulted someone.  In support of his view that getting out of the car was appropriate, Mr Schuberg also said, without explanation, that two police officers might well have been enough to cordon and contain Jonathan.

785.          Mr Schuberg said that no reasonable police officer would have even considered the option of withdrawing, because this would have been a cowardly act and a serious neglect of their duty to protect others.  This is a possibly quaint view which, in the absence of evidence that anyone needed immediate protection, does not sit well with:

(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

(c)      the evidence given by Federal Agent Rath about  retreat and tactical disengagement, and about the AFP position of discouraging the  “courage culture” (at [783] above).

Had Jonathan tried to “elude” police?

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.

Findings

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.

Negotiations with Jonathan

Communication and negotiation

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.

Need to communicate with Jonathan

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”. 

Use of “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.

Findings

804.          I have already found that neither of the two police officers, nor anyone else, was in a “life-threatening situation” before Senior Constables Pitkethly and Willis got out of the car.  I have also found at [94] above that Jonathan had a negative attitude to the police.  Accordingly I find that Senior Constables Pitkethly and Willis, identified by their vehicle and their clothing as police officers, were disadvantaged by comparison with ordinary members of the public in their capacity to engage in a peaceful negotiation with Jonathan.  However I further find:

(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.

Use of OC spray

Relevance of use of OC spray

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. 

808.          As well, I cannot see that the exact timing of the use of OC spray, or even the appropriateness of its use, is as such relevant to an assessment of the actions of the two police officers in Doyle Terrace.  I have no doubt that the use of OC spray contributed to the deterioration of the encounter between the police officers and Jonathan, but it seems on the one hand that the real damage to the scope for communication and negotiation had been done before the OC spray was used, and on the other hand that once that damage had been done, the use of OC spray, or some of its use, might in fact have been justified under CO3. 

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.

Findings

811.          I find that the use of OC spray by Senior Constables Pitkethly and Willis as such was not a breach of the duty of care owed to Jonathan, but that the ill-considered reliance on OC spray was an element in the more general failure of the two police officers to plan and assess risks, as required by their training, before confronting Jonathan.

Did the police officers act in accordance with their training and instructions?

Specific instructions

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.

Views of Senior Constables Pitkethly and Willis

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.

814.          SC Pitkethly was confident that he had applied the applicable principles in dealing with Jonathan, saying in particular that his actions and those of SC Willis in jumping out of the car and telling Jonathan to put his weapon down did not constitute “confrontation”; that the safety of a person being apprehended needs to be considered “amongst other things”; that there was no need for him to wait for more resources; and that he disagreed that there was no legitimate reason to elevate the risk of Jonathan escaping to a point where he ignored other available police resources.

815.          SC Willis said at trial that in making decisions about police actions:

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.

817.          Later, describing why he and SC Pitkethly had abandoned the intention just to find Jonathan, SC Willis said that “our overriding duties were to maintain the safety of the public and – and indeed, Mr Crowley himself”.

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.

Assessment by reference to AFP safety principles

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.

821.          EVALUATION: Prior intel gathering and evaluation may reduce the need for later use of force; Conduct risk assessments (2. Risk Assessment: Risk assessment is to be applied to all incidents and operations.): The risk assessments, if any, conducted by either of the police officers were inadequate.  While accepting that the police attempt to gather “intelligence” from ACTMH was frustrated, I note that there is no evidence of any serious attempt to evaluate the information that was available to police (or even to listen to it properly, at some points), and there is evidence of an unduly casual attitude to that information (exemplified by SC Pitkethly’s apparent belief that the Communications broadcast about Andrew Oakley’s second sighting of Jonathan said that Jonathan had attacked Mr Oakley and tried to kill him, at [704] above, but also by the apparent failure of both police officers to take in the Communications reference to Mr Oakley following Jonathan, at [283] above).

822.          SAFETY: The primary consideration must be the safety of all persons involved (1. Safety First: The safety of police, the public and offenders or suspects is paramount.): While the two police officers paid lip-service to this principle (at [814]–[817] above), there is no evidence that they gave any serious thought (however brief) to what approach would best protect the safety of everyone involved. However, I make no criticism of SC Pitkethly in the actions he took to preserve his own safety once the confrontation with Jonathan had escalated to the level where the baton and then the gun were used.

823.          PREPARATION: Mental and physical; Planning is critical; Consider limitations and parity/disparity (4. Planned Response: Every opportunity should be taken to convert an unplanned response into a planned operation. ...):  As noted at [747] above, neither police officer appeared to have engaged in any mental or physical preparation (even to the extent of checking their accoutrements and those of their partner), neither police officer had engaged in any planning, and there had been no consideration of limitations or parity/disparity. In particular, there was no consideration of the difficulties (known to both police officers) facing two officers attempting to “cordon and contain” an armed person in a public street; no consideration of the issues raised by the likely physical disparity between the reportedly tall and well-built person of interest and the two relatively smaller police officers, or by the confirmation of that disparity when the two officers encountered Jonathan in the flesh; and no consideration, especially in the context of physical disparity, of the particular issues involved in trying to apprehend a person who was apparently mentally disturbed, armed and potentially violent.

824.          OBJECTIVES: Should be continually re-assessed; Do not lose sight of aims & objectives merely because of confrontation: The apparent confusion of each of the police officers about what they planned to do if they found Jonathan (summarised at [435] above) may be evidence of re-assessment of objectives, but if so, it seems to be evidence of irrational re-assessments, given that the evolution of their objectives from “eyeballing” Jonathan to “cordoning and containing” him was contra-indicated by what they knew of the process of cordoning and containing, and what they discovered when they came upon him in Doyle Terrace about both the need to apprehend him and the potential difficulty of doing so.

825.          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 (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. 9. Forced Entry Searches: Forced entry searches are to be used only as a last resort.): The attempts by the two officers to negotiate and communicate were quite inadequate (at [804] above).  I make no criticism of their focus on “cordon and containment” (although there was in any case no “forced entry” option as such), but their apparent belief that the two of them could safely cordon and contain was irrational, despite Federal Agent Rath’s optimism about the capacity of police officers to “exert dominion” and Mr Schuberg’s unexplained suggestion that two officers might have been enough for cordoning and containing.  Instead of avoiding a violent confrontation, the two officers immediately initiated such a confrontation.

826.          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:  There was no sign of any sensitivity arising from a recognition (which both police officers undoubtedly had) that they were dealing with a person who was seriously mentally disturbed.  There is no evidence that the two police officers even recognised that there might be a need for particular communication strategies in dealing with the mentally ill, as distinct from a general assumption that there wouldn’t be a problem.  SC Pitkethly’s belated recognition that he and SC Willis should not have been trying to communicate with Jonathan simultaneously was the closest either of them seems to have come to thinking about communication strategies at all.  Nor is there any evidence that they had thought about the relative difficulties of trying to communicate from within the car before getting out of the car, rather than only after it became necessary to explain their actions. 

827.          EMPOWERMENT: Acceptance of responsibility and accountability; Allocation of appropriate resources; Effective command and control – assertive communication style (3. Take Charge: Effective command and control must be exercised. 4. Planned Response: ...  Use all available resources including Crisis Intervention Team, Ambulance Officers, Psychiatrists or family members. 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.): The two police officers cannot be criticised by reference to this principle for having failed to take on responsibility or for failing to adopt an assertive communication style. However, they did fail to make proper use of the substantial extra resources that would have been available to them minutes if not seconds after they got out of the police car, and there is no evidence that they thought about whether the “safety first” principle suggested or required the use of more resources, more planning or more time.  Nor did they consider seeking help from ACTMH after they located Jonathan.

General views of expert witnesses

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”.

835.          Federal Agent Rath agreed that if, before December 2001, he had been training police officers and had used the incident involving Jonathan as a scenario for discussion in training, he would probably have been critical of a trainee who said that he and his fellow officer would get out of the car and take on Jonathan before the other police officers arrived.  However he noted that this would not always be the case, depending on the circumstances; he mentioned, as an example where getting out of the car in advance of a larger group of police officers would be appropriate, a case involving a person who was severely mentally disturbed and excessively passive.

Views of Constable Bailey

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”. 

Findings

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).

The confrontation with Jonathan – general comments

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.

Alternatives to the actions that were taken

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.

841.          The two police officers had various options other than the ones they chose when they stopped in Doyle Terrace after seeing Jonathan walking along the road.  Apart from the basic option of doing more planning and risk assessment, which might have been helpful but which would have been an addition rather than an alternative to the action they took, those other options included:

(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.

844.          There is nothing in the evidence that I have accepted (including about police policy and procedures) or the findings that I have made that excludes any of those options having been available to Senior Constables Pitkethly and Willis.  Federal Agent Rath’s evidence (at [783] and [835] above) suggests that these options were not only available but also preferable to the approach adopted.  I am not satisfied that by the time the police car stopped close to Jonathan, the police officers had no realistic alternative to the confrontational approach they in fact adopted. 

Breaches of duty by the police officers – findings

845.          It is true that neither planning nor risk assessments can be finalised before a police officer finds himself in a situation requiring action, and that neither a plan nor a particular risk assessment can be allowed to override the flexibility needed to deal with a developing, unpredictable and potentially dangerous situation.  On the other hand, the failure of two police officers who barely knew each other and had never worked together to discuss, even briefly, the risks they were facing, and what they should do, if and when they saw Jonathan, and after they saw him, left them extraordinarily vulnerable to a range of risks, including those that actually emerged. 

846.          I find that the failures to plan and assess risk before attempting communication, the initiation of communication and negotiation in an aggressive and threatening manner with OC spray at the ready, and the unnecessary initiation of the confrontation in advance of the imminent arrival of other police officers, were inconsistent with police policy and procedures, with the training received by Senior Constables Pitkethly and Willis and with the general instructions conveyed by Sgt Morris at the Chapman shops.

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.

848.          I find that Senior Constables Pitkethly and Willis breached their duty of care in 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.  The failure of the two police officers to seek advice from ACTMH about the appropriate way to approach and apprehend Jonathan is one element of that breach of duty, but I should say that in the circumstances, if it had been the only failure in their planning and risk-assessment processes, and they had otherwise acted in accordance with their training and instructions, it would not have been sufficient to amount to a breach of their duty of care.

849.          I find that Senior Constables Pitkethly and Willis also breached their duty of care in the manner in which they 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. 

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.

Use of weapons

851.          The plaintiff says that SC Pitkethly was negligent in his use of weapons, specifically:

(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).

852.          I have already found that the use of OC spray by the two police officers was not a breach of the duty of care owed to Jonathan (at [811] above). 

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.

Vicarious liability for actions of SC Willis

859.          The negligence specifically alleged against SC Willis by the plaintiff (at [691] above) is covered by my findings at [848] and [849] above.

Obligations of police officers to come to each other’s aid

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.

Did the AFP breaches cause the damage?

868.          In determining causation, I must apply the test set out in March v Stramare (1991) 171 CLR 506, to the effect that causation is a question of fact to be resolved in each case by the application of common sense (which may require attention to considerations of policy and to value judgements). I note the views of four of the five Justices (Mason CJ, Deane, Toohey and Gaudron JJ) that the “but for” test for whether a particular act or event caused the injury sustained by the plaintiff does not provide a definitive test of causation (Mason CJ at 516-7, Deane J at 522, Toohey J at 524), as well as the recognition that “the ‘but for’ test, applied as a negative criterion of causation, has an important role to play in the resolution of the question” (Mason CJ at 515-6).  At 522 Deane J said:

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.

Conclusions—breaches of duty that caused the plaintiff’s injuries

880.          Accordingly, I find that the breaches of duty identified at [848] and [849] above caused Jonathan’s injuries.

881.          It is useful at this point to note that the incident as I have found it to have happened fits almost exactly the description given by Hansen J at 578-579 of the incident that gave rise to liability in Zalewski:

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

882.          The plaintiff particularises a variety of instances of negligence by either ACTMH itself or by its employees; the police, for the purposes of the claim against ACTMH for contribution and indemnity, identify several other particulars of negligence.  The various particulars of negligence will be dealt with specifically in due course, but at this stage they can be summarised as covering the following issues:

(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.

Did ACTMH owe Jonathan a duty of care?

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.

Doctor-patient duty of care

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 ...

890.          I am satisfied by reference to Presland and Rogers v Whitaker that from the Monday night when Jon Wells arrived to conduct a preliminary assessment of Jonathan, ACTMH owed a common law doctor-patient duty of care to exercise reasonable care and skill in the provision of professional advice and treatment to Jonathan as its patient. 

Duty of care associated with statutory power to detain

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.

893.          Sheller and Santow JJA found that the hospital and the doctor were not liable to the plaintiff for the non-physical injuries he suffered as an indirect result of killing his brother’s girlfriend.  Both judges, however, appear to have accepted that the defendants might have owed a duty of care arising out of the existence of a statutory power to detain a mentally-disturbed person in respect of certain kinds of injury, being serious physical harm suffered by the person who had negligently not been detained (Sheller JA at [286], Santow JA at [367]).  Sheller JA at [367] also noted the possibility of a duty of care in respect of serious physical harm suffered by a third party at the hands of such a person.  The references to “serious physical harm” are direct allusions to the fact that under the Mental Health Act 1990 (NSW) as in force at the relevant time, the statutory power to detain (s 21) was exercisable in respect of relevant persons:

(a)      for the person’s own protection from serious physical harm; or

(b)     for the protection of others from serious physical harm.

894.          The relevant persons subject to the statutory power to detain were “mentally ill” and “mentally disordered” persons, defined in ss 9 and 10 respectively as persons who, in summary, needed care, treatment or control (temporarily in the case of a mentally disordered person).

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.

898.          Furthermore, Sheller JA at [217] made the following remarks about the interaction between the doctor-patient duty of care and the duty of care arising out of the statutory power:

[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.

The statutory scheme and its purpose

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.

906.          The relevant provisions of the ACT Mental Health Act, as in force in December 2001, were ss 37 and 38:

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.

Control over the relevant risk

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.

911.          However, Spigelman CJ went on to point out that control may be increased in relation to a person whose mental condition prevents him or her understanding the desirability of admission to hospital, such that the person is unlikely to seek voluntary admission and, if voluntarily admitted initially, may seek a premature discharge.  That is, the fact that a person could voluntarily seek and obtain the necessary medical treatment does not significantly limit the “control” to be attributed to the doctor if the person’s condition is likely to preclude him or her making use of the voluntary option. 

Vulnerability

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.

Coherence

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. 

Intervening criminal conduct

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.

Effect of common law duty associated with power to detain

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).

926.          Nor could such a proposition stand with the approach taken in Presland.

927.          Furthermore, the allegations of negligence against ACTMH in relation to Jonathan’s possible involuntary detention are not pleaded in a narrow way.  The combined particulars of negligence are as follows (those particulars only pleaded on behalf of the police are shown in bold):

(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.

928.          The pleadings make it clear that the duty said to have been owed by ACTMH is potentially much broader than simply a duty of care that might be breached by a negligent failure to exercise the statutory power in appropriate circumstances.  In relation to the care provided directly to Jonathan, it is more accurately described as a duty to provide appropriate treatment and care to a patient for whom ACTMH had taken on a responsibility, possibly as early as when Jonathan’s sister sought help from ACTMH and certainly after Jon Wells had visited the house, taken a history, spoken to Jonathan, and prepared and discussed with Jonathan’s family, and documented for his colleagues (including on the whiteboard), a plan for dealing with Jonathan’s apparent psychotic episode.  That duty might have been breached by various different negligent acts; only one of them would have been a negligent failure to exercise the statutory power that is available in some circumstances in support of ACTMH’s more general role in providing treatment and care to mentally disturbed people.

929.          A negligent failure to exercise its statutory power to admit a person to hospital, involuntarily if necessary, would have been sufficient to establish negligence under these pleadings, but it is by no means necessary; the pleadings contemplate a variety of other negligent acts even in the absence of the conditions for exercising the statutory power of involuntary admission, some of them not involving direct dealings with Jonathan at all.

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.

Duty of care—disclosure of information about Jonathan

933.          The question whether ACTMH had a duty of care to Jonathan in relation to the handling of information it held about him (including the disclosure of that information to third parties such as family members or the police) is different from the question whether ACTMH had a duty of care to the AFP in relation to the disclosure of ACTMH’s information about mentally disturbed people.  The latter question may arise in the context of claims among the defendants, but it need not be considered at this stage.

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. 

950.          I am accordingly satisfied:

(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.

951.          The second response to the submission made by counsel for ACTMH relates to the factual position once it is accepted that the doctor-patient duty of care may include disclosure of information to third parties in certain circumstances.  In this case the evidence establishes:

(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.

952.          If ACTMH did not, pursuant to its doctor-patient duty, advert to whether it was able to disclose information in its possession, and did not seek to test whether that information might have been disclosable, then it is not to the point to say that the capacity to disclose in accordance with the Information Privacy Principles had not been established at the time of the failure to disclose evidence; the relevant breach of duty would have been constituted by the failure to consider disclosure, irrespective of what conclusion would have emerged from such consideration.

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.

Foreseeability of injury

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.

956.          At [666] and [667] above I have referred to evidence before me about police shootings of mentally disturbed people in the 15 or so years before Jonathan was shot, and concluded 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. 

957.          On the basis of the same evidence, I consider that it is also reasonable to assume that a properly-functioning agency providing mental health services in any Australian jurisdiction (especially an agency in a jurisdiction such as the ACT that had itself as recently as 1995 experienced such an incident involving police shooting a patient of the mental health service during a mental health crisis) would by 2001 have been aware of the existence and frequency of such incidents and would have given some attention to their possible implications for those providing mental health services.  In particular, it is reasonable to assume that such attention would have been directed at, among other things, the risks of leaving at large or without adequate supervision people whose mental health was known or suspected to be deteriorating towards a potentially dangerous crisis.  I am satisfied that the risk, to a person suffering a psychotic episode, of harm arising from apprehension attempts by police was in 2001 reasonably foreseeable to a reasonable provider of mental health services.

Part 8 – The plaintiff’s claims against ACTMH

958.          The approach I have adopted to determining whether a duty of care has been breached is set out at [662] and [663] above.

Failure to pursue Jonathan’s admission to hospital

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.

Psychosis and first-onset psychosis

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.

961.          Although Jon Wells did not record a positive diagnosis of psychosis, it seems that such a diagnosis would have occurred to any expert reading his reports, and it is implicit in his references to “no previous psychotic episode”.  The assumption that Jonathan’s condition involved, and was recognised as involving, a psychosis was not challenged at any point.

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.

964.          That is, anyone who had read Jon Wells’ clinical notes would have received the clear impression that despite the mark in the box, this was to Jon Wells’ knowledge both a psychosis and a first onset psychosis, and anyone who had looked at the ACTMH Module B document would have realised that whether a patient was suffering his or her first psychotic episode was of vital importance.  On that basis, I consider that ACTMH staff should have made any subsequent decisions by reference to the detailed information in the clinical notes rather than by reference to the marked box; if they had noticed the inconsistency between the two parts of the record, staff either should have assumed they were dealing with the more risky first onset psychosis or should have sought to clarify the matter with Jon Wells.

Tuesday morning response to Jon Wells’ treatment plan

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.

974.          In assessing Ms Williams’ approach, Dr Telfer pointed to the note in Mr Wells’ Monday night record to the effect that the Crowleys believed that Jonathan would run away if the crisis team came.  This is an exaggeration of the contents of the note, which actually reported that the Crowleys “believe Jon could leave if he knew [the Crisis Team] were coming to assess him” and also recorded that the Crowleys were “not hopeful about [the Crisis Team’s] ability to bring him in for assessment without police involvement”.  Dr Telfer conceded that he had not realised that Mr Wells’ assessment of Jonathan as at high risk of absconding, made after his visit to the Crowley home, was an upgrade of the “moderate risk” assessment which had been made by the original triage worker on the basis of the telephone report made by Dr Kate Crowley, and agreed that a face-to-face clinical assessment was generally a more useful diagnostic tool than an account provided over the telephone by another person. 

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.

Dealing with patients and family members

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. 

Findings

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).

Jason Morris

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.

Jason Morris’s observations

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.

1000.      Jason Morris’s failure to contact the Crisis Team urgently about his observations of Jonathan does not seem to me to have been a breach of ACTMH’s duty of care.  Although Mr Morris observed odd behaviour on Jonathan’s part incidentally to doing his job in relation to Jonathan’s brother, I am satisfied that he was not negligent in failing to report his observations to the Crisis Team as a matter of urgency given that:

(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.  

1004.      This possibility was put to Mr Morris in cross-examination. He said that it would have been courteous to speak to Jonathan’s parents because:

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. 

Findings

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.

ACTMH handling of information about Jonathan

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. 

ACTMH failure to refer Jason Morris’s report to the AFP

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.

ACTMH handling of Jason Morris’s report

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.

ACTMH response to police requests

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.

Findings

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.

Record-keeping failures

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.

Training and support of law enforcement officers

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.

Did the ACTMH breaches cause the damage?

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.

Did the police break the chain of causation?

1038.      The first step is to apply the “but for” test to ACTMH’s negligence (discussed at [868] above).  If the answer is that Jonathan’s injury would still have occurred even if ACTMH had not been negligent, then ACTMH is not liable to Jonathan for its negligence.  If, however, it can be said that Jonathan’s injury would not have occurred but for ACTMH’s negligence, then two further questions arise, the first being whether the police negligence broke the chain of causation between ACTMH’s negligence and Jonathan’s injuries, and the second, if relevant, appearing on analysis of the authorities to come down to whether ACTMH ought to be liable for the injury as a matter of common sense and policy.

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.

1048.      The instances of negligence found against ACTMH are:

(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. 

Failure to pursue admission on Tuesday morning

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.

1053.      On the information available to the Crisis Team on Tuesday morning, Jonathan had been in a euphoric state on the Monday night, including apparently making similar comments to those that he made to his parents the next morning.  He told Jon Wells that “he feels better than he ever has”.  On the Tuesday morning he told his father that he had never been so happy in all his life and his mother found him calm and peaceful and also reporting great happiness.  Jonathan’s peace and happiness on the Tuesday morning was not an improvement in his condition.  He was in essentially the same condition in which Jon Wells had seen him the previous evening, at which point Mr Wells had concluded that “an involuntary admission would probably be required to assess and control risk and commence treatment”.  Nor is it correct to say, as Dr Telfer did, that by Tuesday morning his sleep difficulties had been resolved; the only evidence about this is that Jonathan did not appear to be asleep until 1:00 am or possibly 2:00 am on the Tuesday morning, and that he was awake again when his father visited at 6:00 am on Tuesday.  He had no more than five hours sleep that night, and possibly much less.

The Monday night assessment by Jon Wells

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.

Jason Morris’s failure to report his observations

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.

Crisis Team’s failure to give information to the police

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.

Conclusions—breaches of duty that caused the plaintiff’s injuries

1083.      Accordingly, I find that the three breaches of duty identified at [1048] above were all causative of Jonathan’s injuries.

Part 9 – Other matters

Claims of assault and battery

1084.      As well as the negligence claims, the last round of pleadings included a claim by the plaintiff that the third defendant, SC Pitkethly, assaulted him with OC spray and a baton, and by shooting him in the neck, and that the plaintiff’s damage was caused by the assault and battery on him by SC Pitkethly.  The alleged assault and battery is also relied on in the second defendant’s notice claiming contribution and indemnity from the police, and in its claim against the police in respect of the loss suffered by it as a result of its provision of health care to the plaintiff.

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.

Developments in the law since the end of the hearing

1086.      The delay in finalising the judgment in this case has meant that there were some possibly significant developments in the law after the hearing had finished. Several subsequent decisions were drawn to my attention by the parties and have been mentioned in this judgment. Several months before the judgment was finalised, I listed the matter for mention and, among other things, established that none of the parties wanted to make any further submissions in relation to any decisions handed down since the hearing finished.

Part 10 – Conclusions and orders

Conclusions

1087.      Accordingly, I find that the first, second and third defendants all owed duties of care to Jonathan, and that each of those defendants breached the duty of care in respects that caused the injury complained of by the plaintiff.

1088.      The third defendant breached his duty of care, and the first defendant breached its duty of care vicariously in respect of the actions of the third defendant and SC Ben Willis:

(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.

Orders

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.

1093.      The parties have leave to apply to the court in respect of the claims not addressed in this judgment.

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

Part 1 – Witnesses

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

Part 2 – Police interviews

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