The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52

The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52 - ACTCA 2012 case summary — Zoe

[258]

147. Unbeknown to his parents, Mr Crowley must have left their property on at least two occasions after 7.30am and before entering his parents' kitchen when Mr O'Connor was present. Mr Crowley left the premises at approximately 10.50am when he was observed by Mr Morris. He returned, however, almost immediately. He was also seen by residents of Chapman a little over an hour later. At 12.07pm, the police received an anonymous call from a woman who observed that someone who was obviously mentally ill was walking along Perry Drive, Chapman ACT. At 12.10pm, Police Communications advised police officers of the information provided by the female caller that the person was "playing chicken with the cars driving along Perry Drive just near the school". SC Pitkethly said that he would respond to the call. At 12.10pm, two police cars, one containing SC Pitkethly, were despatched to find that person. In his search for Mr Crowley he spoke to the principal of Chapman Primary who decided to keep the children in over lunch time until the man was found. At 12.11pm, police received a further call from a caller who said that he had seen a man wearing a white t-shirt with a "golden covered sword" who looked "grumpy" in the middle of Perry Drive near Namatjira Drive at Chapman. At 12.12pm, another caller telephoned the police and advised that he had seen a man on Tauchert Street near Namatjira and Perry Drives, whom he described as "a young bloke, mid-30s, long hair, open shirt carrying what looks like a Samurai stick in the middle of the road swinging it around and shouting at the traffic. Obviously as high as a kite ...". At 12.15pm, Police Communications advised SC Pitkethly that the man he was looking for was carrying "something like a Samurai sword". At 12.20pm, the car in which SC Pitkethly was travelling advised Police Communications that the man could not be found. At 12.35pm, SC Pitkethly reported that he could not locate the person about whom the complaints had been made because he had gone to ground or gone inside and the job could be marked complete. The various sightings made between 12.07pm and 12.12pm must have been of Mr Crowley.

[371]

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.

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.

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.

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.

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.

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.

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.

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.

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.

[382]

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.

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.

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.

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.

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.

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.

[416]

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 [1981] EWCA Civ 6; [1982] 1 W.L.R. 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg. v. Dytham [1979] Q.B. 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

By common law police officers owe to the general public a duty to enforce the criminal law: see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.

[510]

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.

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.

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.

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.

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.

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.

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".

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.

At a glance

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Judgment (598 paragraphs)

The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52 (17 December 2012)

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Legislation Cited (5)

Cases Cited (30)