The Australian Capital Territory v Crowley, The Commonwealth of Australia... [2012] ACTCA 52 | Case summary | Zoe

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

[2012] ACTCA 52

Court of Appeal (ACT)|2012-12-17

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Court

Court of Appeal (ACT)

Decision date

2012-12-17

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

AUSTRALIAN CAPITAL TERRITORY v JONATHAN ANTHONY CROWLEY AND THE COMMONWEALTH OF AUSTRALIA AND GLEN PITKETHLY

[2012] ACTCA 52 (17 December 2012)

PRACTICE AND PROCEDURE – Appeals – where first instance decision delivered two years after conclusion of trial – circumstances in which open to appeal court to review findings of fact.

TORTS – Negligence – where plaintiff mentally ill and wielding kendo stick as weapon in public – where plaintiff shot by police officer – where plaintiff conceded police officer not negligent in discharge of weapon – whether duty of care owed by police to plaintiff – consideration of scope and application of police immunity from civil liability – whether breach of duty.

Held: Appeal allowed. The police did not owe the plaintiff a duty of care.

TORTS – Negligence – liability of statutory authority – whether ACT Mental Health owed duty of care to plaintiff – where plaintiff seen by ACT Mental Health for purposes of determining possible involuntary detention under subs 37(2) of Mental Health (Treatment and Care) Act 1994 (ACT) – where plaintiff not admitted to approved health facility – characterisation of duty of care – whether ACT Mental Health under duty to exercise statutory power to detain – whether breach of duty.

Held: Appeal allowed. ACT Mental Health owed the plaintiff a duty of care to follow up mental health assessment; however, ACT Mental Health did not breach this duty.

Australian Federal Police Act 1979 (Cth) ss 4, 6, 64B

Crimes Act 1900 (Part 8)

Evidence Act 1995 (Cth) ss 4, 79

Mental Health (Treatment and Care) Act 1994 ss 9, 12, 13, 14, 15, 17, 18, 23, 25, 26, 27, 28, 37, 40, 41

Public Sector Management Act 1994 (ACT)

Supreme Court Act 1933 (ACT) Part 2A

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, cited

Alexandrou v Oxford [1993] 4 All ER 328, cited

Australian Securities and Investments Commission v Vines (2003) 48 ACSR 291, cited

Brodie v Singleton Shire Council (2001) 206 CLR 512, cited

Brooks v Commissioner of Police of the Metropolis (2005) 1 WLR 1495, cited

Calveley v The Chief Constable of Merseyside Police [1989] AC 1228, cited

Clark v Ryan (1960) 103 CLR 486, cited

In the early afternoon of 11 December 2001 in a suburban street in Canberra Jonathan Crowley, then 34 years old, was shot in the neck by a senior constable of the Australian Federal Police (“AFP”). The bullet shattered Mr Crowley’s spinal column at the level of the C5-6 vertebrae leaving him with quadriplegia. At the time of the shooting Mr Crowley was mentally ill. His behaviour was erratic and aggressive and police had been unable to subdue him or to fend off his attacks. On any view of the matter this was a tragedy.
The following year Mr Crowley sued for damages. He named as defendants both the AFP officer who fired the shot, Senior Constable Glen Pitkethly, and the Commonwealth of Australia, who is legally responsible under the Australian Federal Police Act 1979 (Cth) (“AFP Act”) (s 64B) for the wrongful acts of AFP members. He also sued the Australian Capital Territory (“ACT”) for the allegedly negligent acts and omissions of the ACT Mental Health Service and certain of its employees which he claimed contributed to the conduct of the police. Liability was vigorously contested by all three defendants, but Mr Crowley ultimately prevailed and he was awarded $8m in damages. We should point out at the outset that counsel for Mr Crowley did not contend that SC Pitkethly was negligent in firing his revolver and the trial judge did not find that either he or his companion, SC Ben Willis, was negligent in using capsicum spray.
The ACT on the one hand and, on the other, the Commonwealth and SC Pitkethly (together “the police”) appealed against the judgment. In broad terms, the ACT challenges the trial judge’s findings that it owed Mr Crowley a duty of care, that it was in breach of such a duty and that any breach caused Mr Crowley injury. The police challenge only her Honour’s findings on duty and breach.
The grounds of appeal are numerous. Some of them challenge factual findings, some inferences drawn from the facts.
The right to appeal is conferred by Part 2A of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”). It is an appeal in the nature of a rehearing (Huen v Hyland [2004] ACTCA 5 at [54]), albeit that error must still be shown: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [21]–[30]. On such an appeal the Court is obliged to conduct “a real review of the trial” and the judge’s reasons and give “the judgment which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 [23].
For the reasons that follow we are of the view that the trial judge fell into error and the appeals must be allowed. The Parties
Mr Crowley is a single man who at the relevant time lived at his parents’ premises in a caravan.
The Commonwealth has the responsibility for the AFP which is constituted under the AFP Act. The AFP consists, amongst others, of AFP employees: AFP Act, s 6. Both SC Pitkethly and SC Willis were employees, as were all other AFP police officers. They were also members of the AFP. A function of the AFP is to provide police services in relation to the ACT: paragraph 8(1)(a).
“Police services” is defined in s 4 of the AFP Act and “includes 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”.
The ACT had at the relevant time as one of its administrative units of the ACT Public Service, the Department of Health and Community Care (“the Department”). It was established under the Public Sector Management Act 1994 (ACT) (“PSMA”). Sections 12, 13 and 14 of the PSMA provided: 12. (1) The body known as the Australian Capital Territory Government Service that was, immediately before the day fixed for the Public Sector Management (Amendment) Act 1995, section 2 (2), in existence because of this Act continues in existence by force of this subsection under the name of the Australian Capital Territory Public Service. (2) The service is constituted by— (a) the chief executives; and (b) the executives; and (c) other employees; and (d) officers. (3) The Territory is the employer of all members of the service. 13. (1) The Chief Minister may, from time to time, in writing— (a) establish administrative units; and (b) place chief executives in control of the administrative units. (2) An administrative unit consists of the offices within that administrative unit. (3) An instrument under subsection (1) is a notifiable instrument. 14. (1) The Chief Minister may, in writing— (a) allocate to a Minister responsibility for 1 or more administrative units; and (b) allocate to an administrative unit responsibility for all or any of the enactments and matters for which the relevant Minister is responsible. (2) An instrument under subsection (1) is a notifiable instrument.
The Chief Minister of the ACT exercised the powers given in s 13 and s 14 of the PSMA by an administrative instrument (Administrative Arrangements 2001 (No 2) (NI 45 of 2001)) and: (a) established the Department; (b) allocated to the Minister for Health (the Minister) responsibility: (i) for the Department; and (ii) for various enactments including the Mental Health (Treatment and Care) Act 1994 (ACT) (“Mental Health Act”); and (iii) for community health services; (c) allocated to the Department responsibility for those enactments and matters for which the Minister was responsible.
The Australian Capital Territory Mental Health Services (“ACTMH”) and a team referred to in ACTMH records as “CATT” (apparently Crisis Assessment and Treatment Team) were part of the administrative unit of the Department. Like the trial judge we will refer to CATT as the Crisis Team. Persons employed in the Department were employed by the ACT: subs 12(3) of the PSMA. Thus the ACT has the responsibility for the conduct of persons who provide services and treatment under the Mental Health Act.
At the relevant time, the objectives of the Mental Health Act were set out in s 7 and included the following: (a) to provide treatment, care, rehabilitation and protection for mentally dysfunctional or mentally ill persons in a manner that is least restrictive of their human rights; (b) to provide for mentally dysfunctional or mentally ill persons to receive treatment, care, rehabilitation and protection voluntarily and, in certain circumstances, involuntarily; (c) to protect the dignity and self-respect of mentally dysfunctional or mentally ill persons; (d) to ensure that mentally dysfunctional or mentally ill persons have the right to receive treatment, care, rehabilitation and protection in an environment that is the least restrictive and intrusive, having regard to their needs and the need to protect other persons from physical and emotional harm; (e) to facilitate access by mentally dysfunctional or mentally ill persons to services and facilities appropriate for the provision of treatment, care, rehabilitation and protection.
Section 9 of the Mental Health Act requires that a person exercising a function under the Mental Health Act: … in relation to a mentally dysfunctional or mentally ill person must 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.
The Mental Health Act establishes the Mental Health Tribunal. It provided for mental health orders. A mental health order is defined in the Mental Health Act as an involuntary psychiatric treatment order, a community care order or a restriction order. An involuntary psychiatric treatment order is an order made under s 26(1) of the Mental Health Act by the Mental Health Tribunal. Subsection 26(1) provides: The tribunal may make an involuntary psychiatric treatment order in respect of a person if— (a) the person has a mental illness; and (b) the tribunal has reasonable grounds for believing that, by reason of that illness, the person is likely to do serious harm to himself or herself or others, or is likely to suffer serious mental or physical deterioration unless subject to involuntary psychiatric treatment; and (c) the tribunal is satisfied that psychiatric treatment is likely to reduce the harm referred to in paragraph (b) and result in an improvement in his or her psychiatric condition; and (d) the treatment can not be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
A person can make an application for a mental health order if the person satisfies the criteria in s 13 of the Mental Health Act. A person may make an application for a mental health order in respect of another person if the criteria in s 14 of the Mental Health Act are satisfied.
A referring officer may refer an alleged offender to the Mental Health Tribunal for a mental health order if the referring officer (who includes a police officer) has the beliefs identified in s 15 of the Mental Health Act.
Division 4.2 of Part 4 of the Mental Health Act provides for psychiatric or psychological assessments.
Section 16 of the Mental Health Act allows the tribunal to make an order for an assessment of a person who satisfies the criteria in that section. If an order is made for an assessment, the assessment is to be conducted as soon as practicable: s 17.
The tribunal has power to make an order for the person who is to be the subject of the assessment to be removed to a mental health facility for the purpose of conducting the assessment: s 18.
Section 23 provides that the tribunal shall not make a mental health order in respect of a person without having regard to an assessment of the person conducted pursuant to an order under s 16 or another assessment of the person that the tribunal considers appropriate.
Section 25 identifies the matters which the tribunal must take into account in respect of a person before making a mental health order. Section 26 identifies types of orders that may be made.
Section 27 provides the tribunal with power to make a restriction order in respect of a person if satisfied that in the interests of the person’s health or safety or public safety the person should not be discharged from the order unless the tribunal has reviewed that order.
As we have said, included in s 26 are involuntary psychiatric treatment orders that may be made if a person has a mental illness. Other powers are given in Part 4 in relation to mental health orders and psychiatric treatment.
Part 5 deals with the emergency apprehension and detention of persons with a mental illness. In particular s 37, which deals with apprehension, provides: 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.
Two separate powers of apprehension are given under s 37; the first to a police officer in subs 37(1) if the police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt to commit suicide or to inflict serious harm on himself or herself or another person; the second is in subs 37(2) where, relevantly, a mental health officer believes on reasonable grounds that a person is mentally dysfunctional or mentally ill and as a consequence requires immediate treatment or care, and the person has refused to receive that treatment or care and detention is necessary for the person’s own health or safety or for the protection of members of the public, and adequate treatment or care cannot be provided in a less restrictive environment. A person can only be apprehended under subs 37(2) if the doctor or mental health officer has first formed the belief that either the person is mentally dysfunctional or mentally ill and requires immediate treatment or care, or the person is mentally dysfunctional or mentally ill and that person’s condition will deteriorate within three days to such an extent that the person would require immediate treatment or care. In this case, the relevant limb of s 37 is subs (2). The power in subs (2) is conferred on a doctor or mental health officer and the circumstances in which it may be exercised are considerably broader than the power conferred on police officers by subs (1).
A person who is taken to an approved health facility pursuant to the exercise of power in s 37 must be held in accordance with s 38. The person who takes the action under s 37 must provide a statement under s 39. The tribunal has the responsibility of reviewing the opinion of a doctor or mental health officer formed under paragraph 37(2)(a)(ii).
Section 40 requires the person in charge of the approved health facility to whom a person is taken under s 37 to provide a doctor to examine the person within four hours of the person arriving at the facility.
If the doctor who examines the person has reasonable grounds for believing that the person is mentally dysfunctional or mentally ill, and as a consequence requires immediate treatment or care, and the other criteria in s 41 are met, the doctor may authorise the involuntary detention and care of the person at an approved mental health facility for a period not exceeding three days.
The Mental Health Act also provides for treatment during detention and after release. The Mental Health Act also addresses convulsive therapy and psychiatric surgery (Part 7) and referrals by courts under the Crimes Act 1900 (ACT) (Part 8). The Mental Health Act also provides for the licensing of private psychiatric institutions. the case below
Mr Crowley claimed that his injuries were caused by the negligence of each appellant.
First, he claimed that the Commonwealth was negligent in its own right in failing to have in place certain protocols, in failing to supervise and enforce those protocols and also the Commissioner’s orders, and in failing to properly train AFP officers. He also pleaded that the Commonwealth was negligent in using capsicum spray before deciding whether it was appropriate in the circumstances. No allegation was made that the gun was fired negligently nor, indeed, about the use of the gun. At the trial Mr Crowley’s counsel apparently informed her Honour that there was no criticism of SC Pitkethly over his use of the gun.
Mr Crowley further claimed that the Commonwealth was vicariously liable for the conduct of SC Pitkethly, and of SC Willis, who was with SC Pitkethly when Mr Crowley was shot. He claimed that SC Pitkethly was negligent in his conduct immediately before and at the time of shooting him. The case against SC Willis was that he confronted Mr Crowley in a loud and aggressive manner and used capsicum spray on him, without first ensuring that he had back-up and when there was no immediate need to do so.
Separately, and rather obliquely, Mr Crowley claimed that SC Pitkethly had committed an assault and battery upon him. The trial judge did not decide whether SC Pitkethly was liable in assault or battery, but Mr Crowley abandoned that claim on the appeal.
Mr Crowley also alleged that the ACT (or more particularly ACTMH), which managed, controlled and employed members of the Crisis Team, was negligent in relation to the conduct of its officers or employees shortly before he was shot and that that negligence was an additional cause of his injuries. Specifically, he claimed that ACTMH was negligent in not following up on a recommendation made by Jon Wells, a member of the Crisis Team, to have a mental health officer assess him on the morning of the day he was shot for the purpose of determining whether to exercise the power of involuntary detention under subs 37(2) of the Mental Health Act. Mr Crowley also claimed that Jason Morris, another ACT employee working in ACTMH, but who was not a member of the Crisis Team, failed to advise Mr Crowley’s parents and the Crisis Team of observations of him made at about 10.50am the same morning. Finally, Mr Crowley alleged that the ACT’s officers were also negligent in failing to notify the AFP of his behaviour and provide the AFP with information that would have assisted SC Pitkethly and SC Willis when they confronted him.
Mr Crowley originally included in the proceeding a claim against a fourth defendant, Ms Rose Wrdah Al Sweity, who was the driver of a motor vehicle which collided with his motor vehicle at 7.30pm on 19 October 2000. It appears that he made the claim related to the motor vehicle collision in the proceeding because it explained or partially explained the reasons he was in an emotional and disturbed mental state on 10 and 11 December 2001. In the Second Further Amended Statement of Claim Ms Al Sweity ceased to be a party and the statement of claim deleted some, but not all, references to that motor vehicle collision.
Although Mr Crowley’s claim against the remaining three defendants is in negligence, he did not expressly plead that any of the defendants owed him a duty of care. Nor did he identify the content of the duty. Ordinarily the defendants might expect that a plaintiff in his or her pleading would identify the duty of care, the material facts which are said to give rise to its existence and the content of the duty.
The absence of any plea of a duty of care and its content is particularly significant in the case of the claim against the ACT. On the appeal, Mr Crowley’s counsel contended that the ACT had an obligation to provide him with treatment which was additional to the obligation to assess and apprehend Mr Crowley under s 37 of the Mental Health Act. The submission was put to support the trial judge’s finding that ACTMH and Mr Crowley had a doctor and patient relationship which informed the standard of care that ACTMH was required to observe. It was contended that the obligation to provide treatment arose because ACTMH had “entered upon treatment of the plaintiff” by having Mr Wells visit the residence of his parents the night before he was shot for the purpose of assessing Mr Crowley under s 37 of the Mental Health Act.
In fact, ACTMH never embarked on the treatment of Mr Crowley. Nor did it undertake to provide treatment. The assistance of the Crisis Team was sought to engage the process in s 37 and to facilitate Mr Crowley’s admission to hospital where he would, if admitted, receive treatment: see s 40 and s 41 of the Mental Health Act.
If the police were found to be negligent they sought contribution from the ACT. Similarly, the ACT, if it was found to be negligent, sought contribution from the Commonwealth and SC Pitkethly. The trial judge said at [446] that there was “a separate claim in negligence by the [ACT] against the [police] in respect of the ongoing costs of care provided to Jonathan Crowley by the [ACT]”. The trial judge also said at [447] that “the [ACT’s] pleading in fact particularises several further instances of negligence by the police that have not been raised by Jonathan”. The contribution issues were agitated at the trial but, as mentioned below, the trial judge did not decide those issues and they remain undecided.
None of the defendants claimed that if they were guilty of negligence Mr Crowley was guilty of contributory negligence. The course and conduct of the trial
Before addressing the issues arising in the appeals, it is necessary to say something about the course and conduct of the proceedings in the court below.
Mr Crowley commenced these proceedings in 2002 and, for reasons which are unknown (at least to this Court) the trial did not begin until 19 May 2008. After 10 sitting days it was adjourned until 24 February 2009. It then resumed and proceeded for a further 12 sitting days until 19 March 2009 when the evidence concluded. The trial judge reserved her decision on 19 March 2009.
More than two years later, on 27 May 2011, the trial judge delivered her reasons, and on 10 June 2011 entered judgment against the defendants for $8m and ordered the defendants to pay Mr Crowley’s costs. After her Honour had delivered her reasons, but before the orders were made on 10 June 2011, the defendants agreed that the quantum of damages should be assessed at $8m, which explains why judgment was entered for that sum.
The orders made by the trial judge if allowed to stand do not, however, conclude the proceedings because the trial judge had not yet addressed the issues raised by the defendants in the contribution proceedings. Mr Crowley’s claim against SC Pitkethly for assault and battery was noted by the trial judge, but she said that she had not reached any conclusions about the claims because those claims were not argued in the trial or in subsequent written submissions, and in those circumstances, she was unsure whether the claim was maintained by Mr Crowley against SC Pitkethly or whether the claim was still a live issue between the defendants on the contribution proceedings. It is unclear whether that claim was left by the trial judge to be considered in the event that SC Pitkethly succeeded on appeal against the trial judge’s finding in negligence or whether she treated that claim as abandoned. When this Court pressed Mr Crowley’s counsel on this point, it was told that Mr Crowley’s claim against SC Pitkethly for damages for assault and battery was, indeed, abandoned, although if the appeal were unsuccessful the issue would still have to be resolved because it is raised in the ACT’s claim for contribution. There is a further matter to be noted. It appears that the ACT has a claim against SC Pitkethly for loss suffered by it as a result of its provision of health care to Mr Crowley. Although the appeal books do not include the ACT’s claim, we note that it appears to be independent of any claim which relies on the ACT being held liable to Mr Crowley.
During that part of the trial which proceeded in May 2008, Mr Crowley’s witnesses gave evidence, as did two expert witnesses called by the defendants.
In March 2009, when the trial resumed, the police witnesses who were called on the question of liability gave evidence. The ACT called two experts. Thus it was that the trial judge heard effectively Mr Crowley’s case in 2008 and the defendants’ case in 2009, and gave her decision in May 2011.
At the commencement of the trial, the trial judge was told that the parties agreed that the matter should proceed on liability only, and that the question of quantum should be addressed after a decision was made on liability.
Mr Crowley not only relied upon the evidence of his witnesses, but he also tendered, without objection and without explanation, 72 statements made to investigating authorities prior to the trial by the witnesses who were called and also from other persons who were not called. The trial judge identified those statements in an annexure to her reasons.
Some of the statements were of witnesses subsequently called by the defendants. All of the representations in the statements would have been hearsay, but the parties did not address that question. It is not clear why the statements were admitted, or how the parties expected the trial judge to use those statements in her consideration of the issues.
Mr Crowley gave very brief evidence-in-chief during the trial to the effect that he had little or no memory of the events which resulted in his injuries. He was cross-examined briefly by counsel for the police in relation to his attitude towards police officers. The whole of his evidence occupied less than seven pages. Most of what is known of Mr Crowley is derived from his parents’ evidence.
A number of witnesses who it might be thought would be called were not called. Presumably the party who did not call those witnesses relied upon those witnesses’ out of court statements, even though those statements were hearsay and “the evidence” contained in those statements was not tested and not capable of being tested in the witnesses’ absence.
Mr Crowley made a forensic decision to call Jason Morris in the absence of a proof of his evidence or the benefit of a conference with him. We will address Mr Morris’s evidence in detail later.
Mr Crowley also tendered documents obtained from ACTMH and the AFP. The ACT called no-one from ACTMH to give evidence. It called only two witnesses; one a surveyor, and the other an expert on mental health, neither of whom it employed. There was no evidence about how ACTMH compiled its records or how they were kept. In particular, there was no evidence of whether reports upon which Mr Crowley relied were made contemporaneously or at some later time. There was no evidence of how ACTMH made and kept records of telephone calls.
Although the trial proceeded over 28 sitting days, the evidence was taken over 8 days. Most of the factual issues to be determined were not seriously contested, although the parties were not agreed about the emphasis which ought to be put upon the different facts or, in some cases, the inferences to be drawn from facts not really in dispute. Those differences can be identified when the facts are addressed.
There is nothing in the reasons which would indicate why it was necessary for the trial judge to take more than two years to consider her decision, except that the reasons are very long and detailed. The reasons published in the Federal Law Reports are 209 pages long comprising 1,093 paragraphs: (2011) 251 FLR 1; [2011] ACTSC 89. The Appendices are a further six pages. The ACT described the reasons as overly elaborate which “serve to undermine the public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can”: Beale v GIO for NSW (1997) 48 NSWLR 430 at 443.
Her Honour proceeded by considering the facts and making some findings of fact. She then dealt with the primary submission of the police that they owed no duty of care to Mr Crowley. Having ruled against that contention, she discussed Mr Crowley’s case against them and considered whether a duty of care arose and whether it was breached, and whether the breaches were causative of his injuries, and in doing so, reconsidered the evidence and made further findings of fact. She adopted a similar approach in considering the case against the ACT. The findings of fact can therefore be found at a number of different places in the reasons. This makes it difficult to address the findings in a logical and coherent manner.
The trial judge made general observations in relation to the witnesses. Her Honour said that, with minor qualifications, they impressed her as honest people genuinely trying to give truthful evidence. She noted the difficulty the witnesses faced giving evidence some six or seven years after the events. She said (at [22]) that because of feelings of guilt there was “an incentive for people to remember things in the way that they find most comforting and most defensible”. She considered it was “likely that such a tendency has, in this case, been reinforced by the repeated retelling of their stories that have been required of the key witnesses.”
Her Honour made special mention of the two police officers who were most closely engaged in the events; one of whom was SC Pitkethly, the other SC Willis. She said at [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.
Her Honour also made mention of Mr Crowley’s father at [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.
The trial judge concluded at [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.
The appellants not unnaturally complained in their submissions about the delay which was taken by the trial judge to decide the issues at trial. They submitted that, because of that delay, this Court should examine the trial judge’s reasons with special care.
In our opinion, whatever advantage the trial judge would otherwise have had in hearing the witnesses give evidence and observing their demeanour in the witness box was lost in the time taken to write her reasons: Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [23]. Moreover, as we have said, the parties did not call a number of witnesses but relied on statements those witnesses made and/or records of interview they gave in the course of investigations into the incident. For those two reasons, this Court is in as good a position as the trial judge to make findings of fact. This is one case when an appeal court need not defer to the trial judge when considering the facts.
In these reasons we have identified the relevant facts that need to be decided to determine the legal issues raised. We have indicated where we differ from the trial judge and the reasons for those differences. We have not attempted to summarise all the facts considered by the trial judge and all the findings made. Those findings of fact which we have not addressed we have considered unimportant. We have not addressed all of the intermediate findings arrived at by the trial judge. We have attempted to keep the findings relevant to the issues that need to be decided. The Appeal
The appeal was argued over four days. Counsel for the police provided the Court with written submissions of 52 pages and a chronology of five pages. Counsel for the ACT provided written submissions of 49 pages and two attachments of six pages and a chronology of seven pages. At the hearing, counsel for the ACT handed up what he called Speaking Notes of 18 pages. Submissions from Mr Crowley’s counsel totalled 42 pages. They were supplemented by a document called a List of Findings made by the trial judge of 50 pages. The police filed submissions in reply of 13 pages, and the ACT’s submissions in reply were six pages.
At the hearing, Mr Crowley sought an extension of time to file a Notice of Contention to uphold the trial judge’s reasons for finding the ACT liable on grounds which were in fact rejected by her. Against the objection of the ACT an extension was granted and Mr Crowley provided a further written submission of five pages in support of the Notice of Contention.
After the hearing additional documents were sent to the Court: Trial Judge’s Views re the Police Liability; References to Parties Liability Experts on issue of police negligence; and an Index to the Judgment.
The events under consideration occurred in all within a time frame of no more than 15 hours over 10 and 11 December 2001. The critical events occurred within a time frame of 42 seconds on 11 December 2001. The trial judge and this Court have been inundated with information which has made the wood very difficult to see for the trees. The Facts Background
Mr Crowley was born on 14 June 1967. He is the sixth child of Keith Crowley, a retired school principal, and Paloma Crowley, a retired school librarian.
Only two of Mr Crowley’s siblings need to be mentioned because they played a minor part in the events leading up to the shooting. The fourth child of the family is Mark Crowley, who is affected by a psychiatric condition which has prevented him from working. The fifth child is Catherine Crowley, who is a medical practitioner in general practice. His other siblings are in diverse occupations.
At the time of the incident Mr Crowley was somewhere between 6’ and 6’ 3” tall and weighed in excess of 100 kilograms.
Mr Crowley was educated to Year 12 level at EdmundRiceCollege, a Christian Brothers college in Canberra. He worked for a period of two and a half years as a security guard, and for a period as a book salesman. He was interested in creative writing and wrote poems.
His father described him as creative and diverse. He displayed an interest in the under-privileged. He was interested in politics, being a member of the Australian Labor Party, and, in particular, he was interested in a Bill of Rights. He was also an advocate of Australia becoming a republic and had just completed a dissertation on that subject.
In 1987, when he was about 20 years of age, he fell from a cliff and suffered head, back and wrist injuries. In 1990 he was involved in a motor vehicle accident. In 1997 he was assaulted and robbed. After that third incident he was granted a disability support pension. After 1998 he suffered from chronic back pain. On 19 October 2000, he was involved in the motor vehicle accident to which reference has been made, which aggravated his previous back condition. Thereafter he was treated by Dr Hislop, a general practitioner, who prescribed medication in the form of painkillers for him.
Mr Crowley also suffered from intermittent depression which was treated by medication. He was also diagnosed as suffering from an obsessive compulsive disorder. He had not suffered from any psychotic episodes prior to the day or days immediately before the shooting.
Mr Crowley was a long term user of marijuana, which his father said gave him some pain relief.
After the motor vehicle accident on 19 October 2000, Mr Crowley was interviewed by a police officer in relation to the cause of the accident. His father said that his son was cross-examined by the police officer which put him at a disadvantage because he was not good at estimating distances. Mr Keith Crowley said that his son felt that he was being put at a disadvantage because he was not able to adequately answer the police officer’s questions. Eventually Mr Crowley was advised that both parties to the accident were found to be each guilty of careless driving to the extent of 50%.
After the 19 October 2000 accident, Mr Crowley’s parents cared for him at his flat which was about a kilometre from the parents’ home. However, they could not cope with caring for their son in his flat so they bought a caravan in which he resided thereafter to the date of the incident. The caravan was on their property.
An issue in the trial was Mr Crowley’s perception of the police. He was cross-examined as we have said in relation to this issue. He was evasive in answers to the questions put by counsel for the police.
It was put to him that he had a significant dislike of the police at the time of the incident, but he was only prepared to concede that he had a significant dislike of some of the laws in which the judicial system has to act upon.
Mr Keith Crowley’s evidence in respect to this issue was also somewhat evasive.
However, the uncontested evidence was that Mr Crowley was quite dissatisfied with the police investigation of the motor vehicle accident of 19 October 2000 and remained so at the time of this incident in December 2001.
The trial judge found that, rightly or wrongly, Mr Crowley believed that on some occasions he had not been treated properly by the police.
Her Honour said (at [93]-[94]): 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). Accordingly, I find that as at the day of the shooting, Jonathan had a negative attitude to the police.
Her Honour’s conclusion is somewhat ambiguous and what she stated at [94] seems to us to be an understatement having regard to Mr Keith Crowley’s reported out of court statement which was hearsay but apparently treated as evidence that his son had a significant dislike of the AFP. Not only was Mr Keith Crowley reported as making that statement, but the subsequent conduct of Mr Keith Crowley and Mrs Crowley is consistent with it. The Crowleys did not want the police to become involved in the subs 37(2) assessment for fear of further upsetting their son. Mr Crowley’s brother, Mark Crowley, said that his brother did not get on with police. The appropriate finding would be that Mr Crowley disliked the AFP.
On Saturday 8 December 2001, Mr Crowley attended his church, St John Vianney’s, in the ACT and made a number of inappropriate statements which created a disturbance within the church. 10 December 2001
At 5.00am on 10 December 2001, Mr Crowley woke both his parents’ neighbours and his parents telling them that he was “Jesus Christ”. He continued in that vein, that day telling his sister Catherine that he was the son of God and that he had 1,000 years to save the world. Mrs Crowley was concerned about her son’s condition and asked her husband to contact Dr Hislop. At 2.42pm, Mr Keith Crowley telephoned Dr Hislop who told him that the behaviour he had described was outside his experience, but Dr Hislop thought it indicated a serious psychiatric problem.
Some time during the day Mr Crowley threw his cannabis and a bong, and his cigarettes and medication into a rubbish bin, claiming that he was healed and did not need them any more. He described his condition as a miracle.
Apparently Catherine Crowley, whose statement was tendered, observed written on her brother’s chest and arms the words “Jesus Lord”. Dr Crowley called ACTMH at 6.53pm asking them to attend. The ACTMH record was made by Campbell Anderson and includes the following at 18.53.43pm: 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 judgment and is neglecting his self care. The sister is happy to be present when we assess him. He has a long Hx of THC abuse but no previous psychotic episodes.
The record contains a risk assessment which could only have been made on what Mr Campbell was told. He recorded: “May be at risk from acting on delusion”. He made an assessment of “deliberate self harm” or “harm to others” at low and “accidental self harm” and “non-compliance absconding” at moderate. The record indicates that the report was referred to the Crisis Team for assessment. The report proposed an action that “CATT to assess tonight”. The report answered “No” to “First Onset Psychosis”, “No evidence of Mental Illness” and “Is the client currently depressed?”. It was recorded that the availability of records was unknown.
At about 9.00pm that night Jon Wells, who was a clinician with ACTMH, went to Mr Crowley’s parents’ home where he carried out an assessment of Mr Crowley. There was no evidence of the qualifications or training necessary to be a clinician although it is known that a clinician is not a medical practitioner. Mr Wells was a mental health officer. A “mental health officer” cannot be appointed under the Mental Health Act unless the Minister is satisfied that the person is a mental health nurse, psychologist or social worker: s 119 of the Mental Health Act. It is probable that Mr Wells is a psychologist, as he later signed a letter above that description. That letter was tendered. Mr Wells did not give evidence in the trial, but his assessment was tendered by Mr Crowley.
By the time Mr Wells attended at the house, Mr Keith Crowley had formed the opinion that his son was “mentally quite unwell”. After Mr Wells had examined Mr Crowley, a conversation ensued at which Mr Keith Crowley, Mrs Crowley, Dr Crowley and Mr Wells were present, but Mr Crowley was not.
Evidence was led from Mr Keith Crowley as to what was said in that conversation. The evidence of what Mr Wells said is hearsay as its apparent purpose was to prove the truth of what he said, but no objection was taken. However, the evidence would have been admissible for the purpose of proving Mr Keith Crowley’s state of mind, if his state of mind subsequently became relevant.
In his evidence, Mr Keith Crowley said: 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 he might wait until 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 Cathy agreed, my wife, that we would leave it until the morning, and that I would keep a close eye on him. I stayed with him until he went to sleep.
Mr Wells completed a Patient Progress form although it is not clear when that form was completed. The first page of the form refers to a time of 22.27.49pm. The Patient Progress form is addressed to the CanberraHospital, but no evidence was given in relation to its publication to that hospital. The remaining seven pages of the form entitled “Module B” gives a time of 23.00.48pm. We think it is likely, therefore, that both the Patient Progress form and the Module B form were completed on 10 December 2001.
In the Patient Progress form Mr Wells commented upon the bizarre nature of his conversation with Mr Crowley. Mr Wells wrote that Mr Crowley introduced Mr Wells to his friends, James and Saint Nicholas. He mentioned that his brother, Mark Crowley, was on the road to Damascus. Mr Crowley said he had met Judas the day before and Judas had shown remorse for his actions by hanging himself. Mr Wells wrote: I then discussed situation with Jon’s parents and sister Cate. 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 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 had always been charismatic and had lots of friends but he has never really had a career. They also advised he had a history of compulsive behaviour (e.g. checking he has locked his car many times) and was on Aurorix for this but he has had no medication for that for some time.
He continued: 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 judgment 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 (number given) first.
Mr Wells filled out a risk assessment form in which he wrote: Jon has a history of anger and property damage when coming off marijuana. His current presentation is unlike any previous presentation. He 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.
Mr Wells assessed Mr Crowley’s risk of accidental self harm, deliberate self harm, and harm to others as low but assessed non-compliance and absconding at high.
In another part of Module B he wrote: 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 marijauna [sic] 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 (number given) first.
Mr Wells also gave instructions to the Crisis Team to telephone Mr Keith Crowley to organise a visit to assess Mr Crowley early the next morning.
Ms Andrea Twell worked in the Crisis Team in December 2001. She was not called as a witness at the trial but in a statement to the police, she said that when she arrived at the Crisis Team at 8.00am on 11 December 2001, Mr Crowley was discussed and there was a plan in place for the Crisis Team to go back and see Mr Crowley “that morning, first thing”.
In a letter to the police dated 28 February 2002, Mr Wells said that after his visit to the Crowley home on the evening of 10 December 2001, he went back to the office and wrote up his notes. Those notes provided that the Crisis Team should telephone Mr Keith Crowley to organise a visit to assess Mr Crowley early the next morning. In his letter, Mr Wells said: I also wrote this plan on the CATT whiteboard.
As noted earlier, Mr Crowley did not plead that ACTMH had embarked upon a treatment regime by providing Mr Wells’s services. As we understand it, no such case was advanced before the trial judge. However, as already noted, on the appeal, senior counsel for Mr Crowley contended that Mr Wells’s attendance at the Crowley home on 10 December 2001 meant that ACTMH had “entered upon treatment” of Mr Crowley.
The notes to which we have referred and Mr Wells’s conduct show that no such treatment regime was undertaken or agreed to be undertaken by Mr Wells attending on that night. The whole point of Mr Wells’s attendance was to assess Mr Crowley under s 37 of the Mental Health Act. The documents which Mr Wells created did not contemplate ACTMH providing any treatment to Mr Crowley, but instead contemplated that ACTMH would assess Mr Crowley to determine whether subs 37(2) of the Mental Health Act was engaged. In those circumstances the finding made by the trial judge, to which reference will be made later, that ACTMH was in a “doctor-patient relationship” with Mr Crowley, cannot be supported by the evidence and should be set aside.
Mr Crowley was effectively left in the care of his parents. Mr Keith Crowley said that there was an agreement between them and Mr Wells that Mr Keith Crowley would “keep a close eye on (Jonathan)”.
He did so by remaining with Mr Crowley until 1.00am or 2.00am the next morning, when he left because Mr Crowley seemed to be sleeping soundly.
The trial judge has inferred that neither Mr Wells nor any other ACTMH staff member told the Crowley family that, until Mr Crowley could be admitted to hospital, Mr Crowley had to be supervised closely. She inferred that at most they encouraged Mr Keith Crowley and Mrs Crowley to “just keep an eye on him”.
Her finding does not properly reflect Mr Keith Crowley’s own evidence where he said he thought the agreement was that he would keep a “close eye” on his son. The appropriate finding should be that Mr Keith Crowley and Mrs Crowley understood and agreed that they were to keep a close eye on their son until he could be admitted to hospital. 11 December 2001
At 6.00am on 11 December 2001, Mr Keith Crowley visited his son in his caravan to find him listening to the radio. Mr Crowley told his father that “I have never been so happy in all my life”. Mrs Crowley also visited her son, in her case around about 7.00 or 7.30am, and found him to be calm and peaceful, and claiming to be happy.
Although Mr Keith Crowley was still of the opinion that his son would need to be hospitalised, he said he did not think that his son needed to be watched at all times. It is not clear why Mr Keith Crowley was of that opinion, having earlier agreed to keep a close eye on his son until he could be hospitalised.
The ACTMH records show that at 7.53am on 11 December 2001 Mr Keith Crowley telephoned and spoke to Ms Jennifer Williams, who apparently was a registered mental health nurse who sometimes worked as a clinician. It is not without significance that Mr Keith Crowley initiated the telephone call in advance of the ACTMH calling him, which was the way it had been left the previous night. Ms Williams recorded: Call from father. father feels that J will go to Calvary voluntarily. plan - await outcome of attempt at calvary admission (father will let Catt know later today). The reference to Calvary is a reference to CalvaryHospital, the other public hospital in the ACT.
Mr Keith Crowley’s evidence was consistent with Ms Williams’s note. He said: 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 [sic] to the hospital and that I’d keep them advised. And they said they would 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.
He later said: I advised them that (the plaintiff’s) condition had not deteriorated and that I would report to them as soon as there was any sign of deterioration.
Mr Keith Crowley said that he telephoned ACTMH at 7.53am on 11 December 2001 because he wanted to make them aware that the situation had not deteriorated before they went to the trouble of attending with the police.
When he made the telephone call he was of the opinion that the Crisis Team need not attend, and he agreed that he probably told ACTMH that there was no need for them to do so at that stage as he was negotiating with his son and getting him in the state of mind to go to Calvary voluntarily. Importantly, he also agreed that he informed ACTMH that Mr Crowley was: peaceful, he’s not aggressive, he’s not harmful to himself or anyone else … We’ll take some more time.
Mr Keith Crowley told ACTMH he would be in touch with them if and when his son’s condition deteriorated. Her Honour remarked (at [133]) that Mr Crowley was not asked in that conversation what he understood to be the symptoms of a deterioration or advised about advance warning signs.
ACTMH relied upon Mr Keith Crowley’s observations and assessment of his son’s medical condition. Ms Twell said in a statement tendered at the hearing that “we were concerned but respected the family’s decision to take him to Calvary”. As a consequence, no-one from ACTMH attended the Crowley home to carry out any further assessment of Mr Crowley as Mr Wells had suggested be done in his plan. Her Honour found (at [227]) that: 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.
We will deal with the telephone conversation referred to in her Honour’s finding and Mr Morris’s report in due course but, insofar as her Honour’s finding is a criticism of ACTMH and its staff, it is a finding with which we cannot agree. ACTMH needed to make a decision when Mr Crowley telephoned at 7.53am. It needed either to follow the recommendation made by Mr Wells the night before or accept the proposition put by Mr Keith Crowley.
Mr Keith Crowley and Mrs Crowley did not take any steps to persuade their son to attend the CalvaryHospital before a visitor, Michael O’Connor, arrived at their home. It would seem from the evidence that Mr Keith Crowley and Mrs Crowley had no further contact at all with their son before his arrival, and after that, only short contact 10 minutes before Mr O’Connor left.
Mr Crowley’s brother, Mark Crowley, suffers from a psychiatric illness for which he was at the relevant time undergoing rehabilitation. ACTMH provided a service by which Jason Morris, who was a rehabilitation officer within ACTMH, would pick up clients who were to undergo rehabilitation to take them to a rehabilitation activity. The evidence about Mr Morris’s qualifications, duties and experience supports the following conclusions: (1) There was no evidence that, in December 2001, Mr Morris was qualified to be a mental health officer under s 119 of the Mental Health Act. In other words, it is not suggested that he was a mental health nurse, psychologist or social worker. The evidence was that he had done some nursing training since December 2001. (2) At some stage prior to December 2001, Mr Morris had worked in the psychiatric unit in the CanberraHospital, but his employment had never involved the psychiatric assessment of patients. (3) It was not part of Mr Morris’s job to attend to Mr Crowley. He was not one of Mr Morris’s clients. Mr Morris was not a member of the Crisis Team, but was employed in the Department as a member of the Woden Mental Health Team which was located at the Phillip Health Centre on the corner of Corinna and Keltie Streets, Phillip, ACT. The Crisis Team team, of which Mr Wells was a member, was located at the Canberra Hospital Campus at Palmer Street, Garran, ACT. (4) Mr Morris had studied courses called Psychology 1 and 2 at the Canberra Institute of Technology and had also obtained a certificate in mental health from an unnamed institution; and (5) As a rehabilitation officer, Mr Morris’s job was, as he described it, to try and link people into mainstream community activities: So to be an access kind of worker, get them from their home or flats or parents or wherever it was out to actually do some useful meaningful group and activities.
Mr Morris had provided Mr Mark Crowley with that service for some time, and during those dealings had dealt with the family and Mr Crowley. Mr Crowley was known to Mr Morris, but prior to 11 December 2001 Mr Morris had never observed Mr Crowley displaying any symptoms of mental illness.
At or about 10.45am or a little later on 11 December 2001, Mr Morris arrived at the Crowley home to pick up Mr Mark Crowley to take him to the rehabilitation activity. He had not at that stage picked up any of his other clients.
Mr Morris’s observations of Mr Crowley at that point were as follows. He observed Mr Crowley come out onto the road and stand in front of his van. He observed Mr Crowley talking to himself. Mr Crowley had a long black sword which looked to Mr Morris like a Samurai sword. At one point, Mr Crowley held up the sword and waved it around. He glared at Mr Morris, raising his eyebrows. There was also reference in the evidence to him staring at Mr Morris. Mr Crowley raised his fist, although as we understand it, he had his palm facing outwards. Mr Morris gave Mr Crowley the “thumbs up” sign and Mr Crowley responded in kind. Mr Crowley then returned to his caravan on the Crowley property.
Mr Morris contemplated speaking to Mr Keith Crowley and Mrs Crowley, and spoke to Mr Mark Crowley. Mr Mark Crowley told him that the family was aware of his brother’s behaviour and had been in contact with the Crisis Team who had visited the previous night, and that they were hoping to get Mr Crowley admitted to CalvaryHospital.
It is not clear whether Mr Morris had that conversation with Mr Mark Crowley whilst outside the Crowley home, or whether it was in the van after leaving the home, but in the end result, the trial judge found that the conversation occurred before Mr Morris drove away from the Crowley home, and that Mr Morris did not leave “until he was aware that Jonathan Crowley was under the care of the Crisis Team”. It is not clear from this finding whether the trial judge meant that Mr Crowley was in fact under the care of the Crisis Team or that Mr Morris was told by Mr Mark Crowley that Mr Crowley was under the care of the Crisis Team. In fact, as the evidence clearly shows, the only contact the Crisis Team had had with Mr Crowley was Mr Wells’s visit at 9.00pm the previous night. Mr Keith Crowley had earlier agreed with ACTMH that he would facilitate his son’s voluntary admission into CalvaryHospital. It seems that the trial judge’s finding as to Mr Morris’s state of mind was an inference. It does not seem to be justified on the evidence.
In his interview with the police on 22 January 2002, Mr Morris said that Mr Mark Crowley told him that: (1) The Crisis Team had been out the night before and done an assessment of Mr Crowley and felt that there was no need to admit him straight away; (2) the family was going to encourage Mr Crowley to go to Calvary if they felt that was necessary; and (3) Mr Crowley was left in his father’s hands to see how he progressed.
In his oral evidence, Mr Morris said that Mr Mark Crowley told him that the Crisis Team had been there the night before and that they (it is unclear whether he meant the Crisis Team or the Crowley family or both) were going to try to have him admitted to Calvary Hospital “if that was a reasonable option”. He did agree with the proposition that he understood the Crisis Team to be “managing” Mr Crowley’s case and that he was a “client” of the Crisis Team, although whether that was the focus of his answer is not clear. In cross-examination, he talked about the Crisis Team “currently having some contact involvement with him” and “that the crisis team were having involvement”.
Mr Morris did not speak to Mr Keith Crowley and Mrs Crowley, nor did he report his observations to ACTMH prior to returning Mr Mark Crowley to the Crowley home at 12.45pm.
After the rehabilitation activity, Mr Mark Crowley told Mr Morris that he would report Mr Morris’s observations of his brother to his father. The primary Judge’s finding as to whether that occurred was as follows (at [1009]): 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.
Mr Keith Crowley said that, if Mr Morris had told him that Mr Crowley was behaving strangely and was in possession of some sort of weapon, he would have acted by calling the Crisis Team and confiscating the weapon.
Mr Keith Crowley said that the visitor, Mr O’Connor, arrived at 11.30am and left at about 1.00pm for a 2.00pm appointment. Mr O’Connor was not called, so the evidence of Mr Keith Crowley and Mrs Crowley is the only evidence of the time that Mr O’Connor was in the house.
Both Mr Keith Crowley and Mrs Crowley said that Mr Crowley came into the house about 10 minutes before Mr O’Connor left. He was not carrying anything, and in particular was not carrying a wooden stick.
Apparently, after the incident Mr O’Connor wrote a report, but that report was not tendered. As we have said, Mr O’Connor was not called to give evidence. There is a suggestion in the evidence that Mr O’Connor said in his report that Mr Crowley “looked a bit stressed”. That of course could not be evidence of the fact.
About 10 or 15 minutes after Mr O’Connor left, Mrs Crowley took Mr Crowley’s lunch to him in his caravan, but he was not present. Mr Keith Crowley said that about 4 or 5 minutes after his wife reported that their son was missing he got in his car and went looking for him.
If Mr Keith Crowley’s evidence is right about the time when Mr O’Connor left and when his wife went to the caravan and he left to look for his son, Mr Keith Crowley must have left his house at between 1.14pm and 1.19pm. But that evidence cannot be right because when Mr Keith Crowley went looking for his son he travelled only a very short distance before he came upon the police, who by that stage had formed a road block as a result of the shooting. It is likely, therefore, that Mr Keith Crowley did not leave his house to look for his son before his son had been shot which would mean that he did not leave until about 1.40pm at the earliest.
Mr Morris spoke to the Crisis Team and passed on his observations of Mr Crowley according to the ACTMH records at 12.52.55pm. Although the ACTMH records may be questioned as to their accuracy in this case, the record of the time the call was made corresponds with the evidence of Mr Morris. It also accords with the time that Mr Morris returned Mr Mark Crowley to the house.
The telephone call from Mr Morris was made to Karen Eggins. The ACTMH record includes the following note: 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.
Mr Morris was called by Mr Crowley as part of his case and, as we mentioned earlier, he was called in the absence of a proof of his evidence or the benefit of a conference with him. Ms Eggins was not called. Mr Morris denied at trial that he had used the word “large” in describing Mr Crowley’s sword, or the word “psychotic” in describing his symptoms. Mr Morris was cross-examined about his interview with the police on 22 January 2002. During the course of the interview, Mr Morris agreed that the ACTMH record was accurate, whereas a short time later (after an interruption by his representative, Mr Franchie), Mr Morris denied that he had said that Mr Crowley was displaying psychotic symptoms. In the result, Mr Morris did not admit during his cross-examination that he had told Ms Eggins that Mr Crowley was displaying psychotic symptoms.
The trial judge found that Mr Morris had used the word “psychotic” to Ms Eggins by reference to various matters: the ACTMH record; Ms Eggins’s statement to the police that Mr Morris had said that Mr Crowley seemed to be “acting in a psychotic manner” or “portraying psychotic symptoms”; the fact that Mr Morris had studied courses in Psychology 1 and 2 at the Canberra Institute of Technology, which deal with the Diagnostic and Statistical Manual of the American Psychiatric Association; and lastly, because there was no reason to think that Ms Eggins made an interpretation of the symptoms rather than Mr Morris.
This is an example of the difficulty presented by the way this trial was conducted. Ms Eggins was not called but her unsworn, untested evidence was relied upon for the purpose of making a finding contrary to the sworn evidence of Mr Morris who was examined and cross-examined, and in circumstances where her Honour found (at [20]) “with minor qualifications noted in this judgment, all the witnesses impressed [her] as honest people genuinely trying to give truthful evidence”. She made no qualification in respect of Mr Morris.
In our opinion, the reasons the trial judge gave for finding, contrary to Mr Morris’s own evidence, that he used the word “psychotic” are unconvincing. For reasons which we will express, which accord with a later finding made by the trial judge, it could not be said that the ACTMH telephone records have any inherent integrity. The trial judge did not have any evidence from Ms Eggins, except Ms Eggins’s statement to the police that Mr Morris said something different to his evidence in relation to Mr Crowley’s conduct. The fact that Mr Morris had studied courses which relied upon the Diagnostic and Statistical Manual of the American Psychiatric Association is not a reason, in our respectful opinion, for the conclusion arrived at by the trial judge. Lastly, the reason that Ms Eggins was no more qualified than Mr Morris to make a diagnosis of psychosis is not a sound reason for rejecting his evidence. The inference simply does not arise.
Her Honour should have found that the ACTMH was not advised by Mr Morris at 12.52pm that Mr Crowley was displaying psychotic symptoms. Her Honour should also have found that Mr Morris did not use the word “large” in relation to the Samurai sword.
At no time after Mr Keith Crowley had spoken to ACTMH at 7.53am when he said that he felt his son would go to CalvaryHospital voluntarily did Mr Keith Crowley and Mrs Crowley raise with their son the question of his admission to that hospital. Nor did they make any observations of their son after 6.00am (in the case of Mr Keith Crowley), and about 7.00 to 7.30am (in the case of Mrs Crowley). Mr Crowley was unsupervised in every sense of the word after that time. After those two occasions, the next time Mr Keith Crowley and Mrs Crowley saw Mr Crowley was 10 minutes before Mr O’Connor left at 1.00pm and then only for a very short time.
Mr Keith Crowley and Mrs Crowley were never made aware of Mr Morris’s observations of their son at about 10.50am, nor was ACTMH until, in the case of ACTMH, at 12.52.55pm.
At no time before Mr Crowley left the Crowley home at some time perhaps between 1.00pm and 1.10pm was ACTMH advised by Mr Keith Crowley and Mrs Crowley that they had not taken any steps to persuade Mr Crowley to be admitted to hospital, or that they had not made any observations of him after 7.30am.
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.
The likely reason SC Pitkethly could not locate Mr Crowley was because he had already returned to his caravan. The uncontroverted evidence was that Mr Crowley spoke to his parents and Mr O’Connor some time shortly before 1.00pm, probably about 12.50pm.
At 1.08pm, a call to the police was made by Andrew Oakley, a postman, whom Mr Crowley had confronted in Lincoln Close in Chapman. The timing of that observation is consistent with the evidence of Mr Keith Crowley and Mrs Crowley.
Mr Oakley, who was delivering mail in Chapman on a motorised bicycle or motor bike, noticed while travelling along Lincoln Close that several logs had been placed across the road. He stopped to remove the logs and heard a person, who was Mr Crowley, telling him to stop what he was doing. He continued and next he noticed Mr Crowley, with writing over his body, running towards him with a wooden stick that Mr Oakley thought was a kendo stick, saying that he was God and Jesus.
He said Mr Crowley came from 5 Lincoln Close holding a sword and making threatening gestures. Mr Oakley said that Mr Crowley told him he would “take his fucking head off” if he moved the logs on the road. That prompted Mr Oakley to telephone the police. Mr Oakley reported to the police that the person he had seen had a timber sword and writing on his body. The second observation is consistent with Dr Crowley’s observation of writing on Mr Crowley’s body the previous night.
The wooden stick to which reference is made was the kendo stick which was tendered at trial. Mr Crowley at one stage had two weapons: the kendo stick and a Samurai sword. The Samurai sword had been acquired by Mr Crowley about 10 years before. Mr Keith Crowley said that at his son’s request he had taken the Samurai sword off him and hidden it under the carpet under a bed in his study. The Samurai sword plays no further part in what followed.
The kendo stick, on the other hand, remained in Mr Crowley’s possession. A kendo stick is a bamboo stick used in the practice of martial arts. Mr Keith Crowley described it as a training weapon designed so that martial art practitioners would not injure each other. Mr Keith Crowley called the kendo stick a “bok”.
The kendo stick consisted of several strips of bamboo tied together with a level handle. The stick was 120 centimetres long and about three centimetres wide at his thickest point. It weighed about 750 grams. It had both religious and military references written on it, including, “God loves you forever”, “Joan of Ark’s [sic] sword”, and “Despite the nations to save them”.
Mr Keith Crowley was aware that his son had previously had a kendo stick but did not know that he was still in possession of such a weapon at the time of the shooting. Mr Keith Crowley said he had last seen it three or four years before his son was shot.
Mr Oakley made the call to the police at 1.08pm and his complaint was recorded: 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.
No evidence was led of the distance between the Crowley home and the place on Lincoln Close where Mr Oakley observed Mr Crowley, so no reliable estimate can be given of the time Mr Crowley left his parents’ premises. The inference is that it was Mr Crowley who put the logs across Lincoln Close. He must have therefore left at a point in time which allowed him to travel to and put the logs across Lincoln Close.
Police communication broadcast the information given by Mr Oakley in the following terms: Male … maybe mentally disturbed, he has written on himself in biro and it appears extremely agitated.
SC Pitkethly was advised of the contact between Mr Crowley and Mr Oakley and, in response to Mr Oakley’s report, he went to the address given by Mr Oakley, which was a house occupied by an 82 year old woman, Mrs Healy. The house had previously been owned by Mr Keith Crowley and Mrs Crowley, and was the house in which Mr Crowley was raised. Mrs Healy had spoken to Mr Crowley from inside her house. Mr Crowley told her he was “from Jesus Christ” and that she had two hours to get out. She had not called the police because Mr Crowley had left. In any event, when SC Pitkethly attended, Mrs Healy was frightened and distressed. Mrs Healy told SC Pitkethly that a man had tried to bash his way into her house through her screen door using a large implement. She told SC Pitkethly that she had said to the man that if he did not go away she would call the police. The man left not long before the police officers arrived. SC Pitkethly reported: 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.
Mr Crowley must have left the caravan and the Crowley home some time between 12.50pm and shortly before 1.08pm. The Crowley home is not far from where the shooting took place. It is likely that he left very shortly after he spoke to his parents and Mr O’Connor. That would explain why he was not there when Mrs Crowley took him his lunch. When Mr Crowley left the Crowley home for the third time that day ACTMH was not aware that neither Mr Keith Crowley nor Mrs Crowley had discussed with Mr Crowley his admission to hospital. Nor was it aware that they were not keeping a close eye on their son. And it was not aware of Mr Crowley’s behaviour that day, except insofar as they had been informed by Mr Crowley at 7.53am and Mr Morris at 12.52pm. To this point, ACTMH had assessed Mr Crowley as a low level risk of harm to himself and to others.
At 1.11pm, SC Pitkethly requested assistance from Operation Support Group (“OSG”). ACTMH Telephone Records
It is convenient to deal at this point with telephone calls made that day to ACTMH.
ACTMH records suggest that there were three telephone calls made to the Crisis Team on the afternoon of Tuesday, 11 December 2001 and one call made by the Crisis Team after that time.
The four telephone calls were identified by the trial judge: 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).
The first and third calls were said to have been received by Ms Williams who made a note of the time of the calls and of the substance of the conversations. Ms Williams was not called to give evidence.
The second telephone call, to which we have already referred, was the call by Mr Morris to the Crisis Team received by Karen Eggins.
The final call was said to have been made by Andrea Twell to Mr Crowley about 35 to 40 minutes after Mr Morris had called the Crisis Team. We will deal with the telephone calls in the order of the events of the day.
Notwithstanding that the telephone calls were included in ACTMH’s own records, the ACT denied that the first telephone call, said to have been received by Ms Williams, was ever received. It did so in circumstances where it did not call Ms Williams.
The record for the first telephone call was apparently made on 12 December 2011 at 10.43am. The trial judge concluded that the first telephone call had not been made, and we agree. For the following reasons it is most unlikely that any such call was made. First, there was no corresponding record in the police log of such a call. The integrity of the police log was not doubted. Secondly, no one had informed the police at the time of the recorded call that Mr Crowley had writing upon him. The police were not advised of that until 1.08pm. No police officer was in a position therefore to ask the question posed in the record. Thirdly, SC Pitkethly had at 12.35pm reported to Police Communications that Mr Crowley had either gone to ground or gone inside and the job could be marked complete. There was therefore no need for a police officer to make the call at 12.39.59pm. The next recorded sighting was at 1.08pm when Mr Oakley made his call.
The trial judge did not reach any conclusion as to why the records would mistakenly include a record of a telephone conversation which did not take place and, in the circumstances, we agree it was unnecessary to do so.
We have already dealt with the second call and the findings which should be made.
The third telephone conversation was recorded by ACTMH as having occurred at 1.14.46pm. The police log, on the other hand, shows it was more likely that the telephone call was made some time between 1.25pm and 1.29pm. At 1.25pm, a suggestion was made that a call be made to ACTMH, and a further suggestion was made at 1.29pm to the same effect by Sergeant Geraldine Morris, who had assumed control of the search for the plaintiff. In relation to the second suggestion Sgt Morris was told that such a call had already been made. The inference to be drawn from the police records is that the call was made some time between 1.25pm and 1.29pm. Indeed an audit of the police communication shows a telephone call to ACTMH at 1.26pm which lasted for 25 seconds.
Her Honour referred to evidence given by Mr Keith Crowley that he was told by a police officer that a phone call from ACTMH was recorded as having been made in Telstra records at 1.19pm. The Telstra records were not put in evidence, but suggestions were made during the police inquiry into the incident that such a record existed. Her Honour found (at [173]): 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.
The trial judge was wrong to place any reliance at all upon a suggestion made in a hearsay statement that such a record existed. In the absence of the proof of the record the suggestion should have been ignored.
The evidence suggests that the telephone call by police to ACTMH was made at 1.26pm and not before. Her Honour made a finding that the telephone calls were made at close to 1.25pm with a margin for error of one or two minutes. In those circumstances, our conclusion and her Honour’s finding are not dissimilar.
In all probability, the police made an enquiry of ACTMH at 1.26pm and were told that ACTMH had no information to assist the police. In fact, that advice was right. The only information ACTMH had received on that day was from Mr Keith Crowley and Mr Morris. That information did not give ACTMH sufficient knowledge to give any other advice than it did.
The final phone call which ACTMH records show was made was from Ms Andrea Twell of ACTMH to Mr Keith Crowley. Ms Twell is apparently a psychologist and mental health officer employed with the Crisis Team during morning shifts. She did not give evidence.
There is a dispute as to whether the call was ever made or, if it was made, its time and contents.
The ACTMH records show that the telephone call was made by Ms Twell to Mr Keith Crowley at 1.28pm and read as follows: 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.
Mr Keith Crowley said in his evidence that there was no such call. The trial judge rejected that evidence, preferring a statement he made some six years before when he said that the Crisis Team had called him and told him that Mr Morris had seen Mr Crowley with the bok (Mr Crowley’s term for the kendo stick). However, the note does not say that.
Ms Twell said in a police interview, which of course was untested in cross-examination, that the conversation had taken place and that they had discussed the question of weapons. She said she had been told by Mr Keith Crowley that “Jonathan has handed over his weapons to his Dad”. Later she said in an interview that she had specifically raised the question of weapons with Mr Keith Crowley.
This is another instance of the unsatisfactory state of the evidence. The trial judge found that the telephone call had occurred notwithstanding Mr Keith Crowley’s sworn evidence that there was no such call. The trial judge relied upon the content of the communication referred to in Ms Twell’s police statement to substantiate the fact of the call, notwithstanding that that content was not included in the record said to have been made contemporaneously with the call.
The note which has been made does not refer to any telephone call made by Mr Morris, or that Mr Morris had seen Mr Crowley with the bok. In those circumstances, Mr Keith Crowley’s statement some six years before does not support the account of the conversation appearing in the ACTMH records. Moreover, as we have said, Ms Twell’s statement about the content of the conversation is different from what appears in the ACTMH records.
However, on the appeal no party contended that the telephone conversation did not take place or that the weapon and the matters referred to in the note were not discussed. The statements attributed to Mr Keith Crowley indicate that Mr Crowley had had a strong and significant dislike of the police. The record indicates his parents’ reluctance to see the compulsory powers conferred by subs 37(2) of the Mental Health Act engaged.
More importantly, if the telephone conversation took place and Mr Keith Crowley was advised of the matters recorded in the ACTMH records, it was too late for Mr Keith Crowley to do anything in response. By that stage his son was already on the streets. Indeed, it is quite possible that by the time the conversation concluded the shooting was about to occur.
That leaves unresolved the state of the ACTMH records and the circumstances in which they were prepared. The records appear to be unreliable, and although they give the impression of being contemporaneous notes made with exact reference to a time point, they (or at least some of them) are nothing of the sort. It would appear that some of the records were made after the event in a way as to appear to be contemporaneous notes.
It is difficult to understand why the parties did not prove not only the ACTMH records but the complete police log and the Telstra records.
The fact that the ACTMH records wrongly included details of a phone call that was never made calls into serious question the integrity of the telephone records. Those records could not be used in the way the trial judge did to contradict the sworn evidence of Mr Morris about what he told Ms Eggins at 12.52pm.
After discussing the four telephone calls the trial judge dealt with a Memorandum of Understanding (“MoU”) between the AFP and ACTMH. Her Honour noted that in Appendix A of that MoU the AFP can consult the psychiatric service for advice when the AFP is dealing with a person with a mental illness.
The trial judge found that no such contact was made until about 1.25pm, when the third telephone call took place, which was an hour after the police first had information which would require them under the MoU to contact ACTMH.
Her Honour found that when contact was made, the AFP did not comply with the requirement under Item 1.4 of the MoU to provide as much information as possible. She also found that ACTMH staff did not respond as required by Item 1.5 in Appendix A by asking the police for more information.
Her Honour found, too, that the AFP did not seek any general advice from ACTMH about how to deal with a person behaving in the way that the plaintiff had been described. Specifically, she found 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 Mr Crowley. The Shooting
As we have said, SC Pitkethly suggested that OSG ought to be involved to provide some support in the search for the man who had been the subject of the calls to the police. He was advised that the Communications Sergeant would contact Sgt Morris. SC Willis heard the same communications and by radio he offered to help in the search and arranged to meet other police officers at the Chapman shops. Constable Bailey also offered to help and offered to meet near ChapmanPrimary School.
The police gathered in the car park of the Chapman shops which was near the ChapmanPrimary School. Amongst those who met were SC Pitkethly, SC Willis, Const Bailey, and Sgt Morris, and two vehicles containing OSG members. Nineteen officers in all met at the Chapman shops. At the request of Sgt Morris, SC Pitkethly briefed these officers.
OSG was made up of police officers who, when acting as part of OSG, carried protective gear to protect them from assault by certain weapons including ballistic vests, helmets and shields. The members of OSG were trained in containment techniques and methods for disarming people. Membership of OSG did not give the particular police officer any powers additional to those held by other police officers.
Whilst OSG members were assembled at the car park of the Chapman shops, there was a disagreement between Sgt Morris and Detective SC Carnall about whether OSG members were to be used as OSG members or as ordinary searchers. That disagreement does not need to be addressed or resolved because those members played no part in the events which followed.
After SC Pitkethly had been given his briefing, the officers present headed for their vehicles to proceed to the place where Mr Crowley was last seen. SC Pitkethly drove a police car, accompanied by SC Willis who was not in uniform, but who put on a yellow reflective police vest. At trial, the question whether Sgt Morris had established a command post was raised, but that was irrelevant to any issue and accordingly was not decided by the trial judge. When SC Pitkethly and SC Willis left the car park at the Chapman shops, they did so without having received any instructions because, as the trial judge found, SC Pitkethly was keen to find Mr Crowley.
Mr Crowley’s counsel did not contend that SC Pitkethly and SC Willis breached any duty of care by leaving the car park without detailed instructions. It was not disputed that when the 19 police officers left the Chapman shops the general plan was to locate Mr Crowley, but there was no more detail in the plan, presumably because the information available to the police officers was not sufficiently coherent.
During the journey from the car park of the Chapman shops to the place where Mr Crowley was located, SC Pitkethly and SC Willis did not discuss what they would do in the event that they found him. SC Pitkethly said that their plan was simply to locate him for the purpose of containing him. SC Pitkethly said he would do that by trying to communicate with him and by seeking the assistance of other police officers. SC Willis said that they intended to “get an eyeball” on him with the intention of taking steps to “cordon and contain” him.
The trial judge found (at [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.
On the appeal, counsel for Mr Crowley contended that the trial judge was correct to find that Senior Constables Pitkethly and Willis had not made any joint or individual plan about how to deal with Mr Crowley if and when he was located.
We think the evidence supports the finding that the two police officers did not discuss what they would do in the event that they located Mr Crowley, but we do not agree that the police officers accepted that they would not try to apprehend or arrest him under any circumstances. Both officers said that their intention was to cordon and contain Mr Crowley, which carries with it the possibility of arrest if necessary to prevent any possible incident.
The location to which the police officers were travelling was described by the trial judge (at [291]-[292]):

The trial judge said that Mr Richter’s evidence was “embellished” (at [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.
The trial judge found that Mr Richter was genuinely frightened by Mr Crowley but not quite as threatened as he claimed during the trial. She rejected Mr Richter’s claim that the man behaved like “he wanted to take a life”. If, as the trial judge has found, Mr Richter was genuinely frightened, his fear must have been generated by Mr Crowley’s behaviour.
It is difficult to understand how the trial judge came to the conclusion that Mr Richter’s evidence was embellished. Although he was cross-examined by Mr Molomby SC, who appeared for the ACT, he was not cross-examined about his encounter with Mr Crowley. Whilst he was cross-examined by Mr Crowley’s senior counsel, Mr Gross QC, no suggestion was put to him that he had embellished or exaggerated his evidence. Nor was it put to him that Mr Crowley did not rant or rave, or yell or scream, or behave in the way that Mr Richter claimed. Mr Richter’s evidence was consistent with the observations of Mr Oakley and Senior Constables Willis and Pitkethly.
The trial judge did not rely upon Mr Richter’s demeanour for her finding but, even if she had, as we indicated earlier in these reasons, having regard to the time which had passed after Mr Richter gave his evidence, the advantage of hearing Mr Richter had been lost. A reading of Mr Richter’s evidence, including the whole of his cross-examination, does not support the conclusion that he embellished his evidence about his encounter with Mr Crowley and the trial judge should not have made a finding to that effect. The only evidence that the trial judge had in relation to this incident was the uncontroverted evidence of Mr Richter.
Mr Leonard Richter was inside the house when Mr Crowley first confronted his father. He was told by the owner of the house “there’s a big angry man out the front and he’s slamming the doors on the van”. When Mr Leonard Richter went outside he found his father “very shook up”. This observation is consistent with his father’s evidence. Mr Leonard Richter first saw Mr Crowley as he walked away from the front yard, apparently his attention fixed on another member of the public. Thereafter, Mr Leonard Richter stood with his father and witnessed the encounter between the police and Mr Crowley which led to the latter being shot.
Although the trial judge found that Mr Leonard Richter did not observe Mr Crowley walking down Doyle Terrace before the police arrived, and did not observe him walking towards another person, she made no finding about whether he witnessed what occurred immediately before and at the time of the shooting.
Mr Oakley, who had previously come across Mr Crowley, completed his mail deliveries and then rode up to Doyle Terrace towards Rickards Street. He noticed Mr Crowley now without his shirt, but still with a weapon in his hands walking up Rickards Street towards Doyle Terrace. He said the man was 30 to 40 metres away from him and when the man noticed him the man jogged up the road towards him. Mr Oakley travelled away from Mr Crowley and telephoned the police: 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.
Mr Oakley kept 20 or 30 metres in front of Mr Crowley watching him in his rear vision mirror.
The trial judge found that the only people present at the time of the shooting were Mr Allan Richter and Mr Oakley, neither of whom, she said, was in any danger from Mr Crowley. She rejected their evidence insofar as it suggested that they thought Mr Crowley was a danger to them at the time of the shooting. She said their actions on the day were inconsistent with them being in any danger.
We think that finding was open to the trial judge. Mr Oakley, Allan and Leonard Richter kept a safe distance between themselves and Mr Crowley, and therefore were not in any immediate harm before Senior Constables Pitkethly and Willis arrived.
As they approached, SC Pitkethly did not activate the police siren, but the flashing lights on the roof of the car were operating when the car travelled along Doyle Terrace past Rickards Street when Senior Constables Willis and Pitkethly came upon Mr Crowley. The trial judge did not criticise SC Pitkethly for approaching in this way, with the lights flashing.
SC Pitkethly brought the car to a halt when he saw Mr Crowley in the middle of the road walking away from him. The police car stopped reasonably close to Mr Crowley. There was some dispute at the trial as to why SC Pitkethly stopped the car so close to Mr Crowley. SC Pitkethly said that he stopped the car as quickly as he could as soon as he saw Mr Crowley. SC Willis said that he saw Mr Crowley when they were about 20 metres away.
At 1.35.57pm, before the car was stationary, SC Willis spoke to Police Communications and said, “Yeah, there he is, yeah got him now”. The call was made without the police officers identifying their call sign or their location, but both officers accounted for that by reason of the urgency of the situation. Apparently at trial there was some suggestion that SC Pitkethly had deliberately failed to give his call sign or give the location before getting out of the car so as to delay the arrival of other police cars. It is not clear why he would have done that but, in any event, the trial judge, rightly in our opinion, rejected that proposition.
The next communication to Police Communications was from Const Bailey. That was at 1.36.39pm when Const Bailey reported that Mr Crowley had been shot. That was 42 seconds after the call from SC Willis.
There were seven people present at the shooting: Mr Crowley, who had no real memory of the event, Senior Constables Pitkethly and Willis, Mr Oakley, Allan and Leonard Richter and Const Bailey, who arrived only very shortly before Mr Crowley was shot.
The evidence tends to suggest (as her Honour found) that the police car stopped within a few metres of Mr Crowley. Mr Oakley estimated 5-7 metres. SC Willis said 5-6 metres. Allan Richter said very close to Mr Crowley, almost touching him. Her Honour also found that SC Pitkethly stopped the car in a position which was neither dangerous nor threateningly close to Mr Crowley, again a finding with which we agree.
Evidence was called by ACTMH in the form of surveyor’s evidence to establish the line of sight that was available to SC Pitkethly of Mr Crowley as SC Pitkethly approached him. The trial judge was not prepared to accept the evidence as expert evidence, but otherwise admitted it. We are not sure how the evidence was admissible if it was not expert evidence because it purported to be opinion evidence. In our opinion the evidence was either admissible as expert evidence or not admissible at all. Any observations that the surveyor made could be evidence of the facts, but those facts would only be admissible if they are relevant to support an opinion which in this case was not admitted. In any event, we think that the issue is of little or no significance.
Clearly, if the police officers were to engage with Mr Crowley, the car had to be driven to a point where the police officers were able to do so. As the trial judge has found that the police car was stopped at a point which was not threateningly close to him, the question of how long Mr Crowley was under observation by the officers is of little or no moment. In any event, the trial judge found that SC Pitkethly probably saw Mr Crowley when Mr Crowley was less than 90, but more than 20, metres away.
After the police car stopped, Mr Crowley turned around and began to walk towards the police car. Both Mr Oakley and Mr Allan Richter said that Mr Crowley appeared to indicate a willingness to surrender when the police car stopped. However, the trial judge found (at [357]) that: 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.
It would seem in that finding that her Honour has rejected the uncontradicted evidence of two independent witnesses. The witnesses were not purporting to comment on Mr Crowley’s attitude. They were giving evidence of their perceptions of his conduct. Her Honour should have accepted that evidence and found that, objectively, Mr Crowley appeared to be willing to surrender. Such a finding is important having regard to her Honour’s criticism of the police officers for getting out of the police car. If, objectively, Mr Crowley was indicating a willingness to surrender, then the two senior constables cannot be criticised for getting out of the car.
SC Willis said that Mr Crowley had a “look on his eyes ... the hatred directed towards us” suggesting an aggressive attitude on Mr Crowley’s part. This evidence is consistent with the evidence given by Mr Allan Richter which the trial judge wrongly, in our opinion, said was embellished.
The primary judge said in respect of SC Willis’s evidence (at [355]): 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.
We do not agree with that finding which is contrary to the evidence. It fails to reflect the evidence about Mr Crowley’s behaviour on that day and at that time. It is inconsistent with Mr Keith Crowley’s evidence about his son’s dislike of the police. It is also inconsistent with the evidence of Senior Constables Willis and Pitkethly, the evidence of the onlookers, Mr Allan Richter and Mr Oakley, and with the events which had occurred and which followed.
Mr Allan Richter and Mr Oakley said that after the police car stopped and Mr Crowley turned towards it, he lifted his stick above his head holding it with both hands horizontally.
All the witnesses, including SC Pitkethly, agreed that immediately after the police car stopped, the officers got out, SC Willis following SC Pitkethly. There does not seem to be any dispute that immediately thereafter both officers told Mr Crowley to drop his weapon and get on the ground. The officers said they did so in a firm voice and, in SC Pitkethly’s words, “loud enough for someone to hear”. SC Willis described the manner of instruction as “raised and firm voices”.
Mr Oakley said that soon after the police car doors opened he could hear yelling and screaming, and instructions such as “drop your weapon and get on the fucking floor”. Mr Allan Richter’s evidence was to similar effect; that the police officers screamed at Mr Crowley.
The trial judge preferred the evidence of Mr Oakley and Mr Allan Richter to that of the two officers and found (at [377]): (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.
There seems to be no dispute that when the police officers were addressing Mr Crowley both of them had a capsicum spray in one hand. SC Willis said that he taken his spray out after he got out of the car, but nothing turns on that. Mr Crowley advanced towards the police car and stood with his shins touching the front of it. Mr Allan Richter said that immediately after the police car stopped, Mr Crowley had the stick in his hand, was “moving it around” “and swiping at the officer that was at the door”. He said that the two officers jumped out of the car at the same time and basically said to him “Drop your weapon”. He said that when this happened Mr Crowley seemed to attack the officer who was in the passenger seat (SC Willis).
Mr Crowley did not comply with the directions to put down his weapon or to go to ground, and when he got into the position close to the police car, one or both of the officers sprayed him with capsicum spray. SC Pitkethly’s spray hit him across his eyes, but had no apparent effect on him. Mr Crowley immediately headed toward SC Willis. SC Willis also sprayed him in the eyes, again without effect. Mr Crowley advanced on SC Willis, who had now come out from behind the car door, and attacked him. At this stage Mr Crowley was yelling and screaming, and seeking repentance. Simultaneously, SC Willis was yelling at him to lay down his weapon. SC Willis retreated but was hit by Mr Crowley on the arm or shoulder with a blow that Mr Richter described as “forceful”. Mr Oakley said that SC Willis was still attempting to use his spray. SC Willis put his arm up to defend himself and was struck across his back by a very heavy blow which, although aimed at his head, hit him across the back of his head and shoulder. It is not altogether clear how many times SC Willis was struck, although the trial judge found he was struck twice; once while he was standing and once while he was on the ground. Ultimately, SC Willis fell to the ground or went to ground and assumed the foetal position in an attempt to protect himself from the attack because, on his evidence, he feared for his life. He thought that if the stick struck him in the head he could suffer very severe injuries.
SC Pitkethly reacted by trying to attract Mr Crowley’s attention in order to assist SC Willis. SC Pitkethly said that Mr Crowley had the kendo stick raised above his head and he backed away with Mr Crowley following him, waving or swinging the kendo stick. Eventually, Mr Crowley and SC Pitkethly were about 10 metres beyond the back of the police car. Whilst SC Pitkethly was retreating, he was yelling at Mr Crowley to drop his weapon, and Mr Crowley was pushing him backwards with his stick. As he did so, SC Pitkethly again sprayed Mr Crowley with capsicum spray, but once again the spray seemed to have no effect.
During his retreat, SC Pitkethly also took out his baton, opened it and held it above his head to defend himself, and blocked what Mr Oakley described as “the first head blow”, which Mr Crowley executed by bringing the kendo stick from above his head downwards aiming at the top half of SC Pitkethly’s body. SC Pitkethly blocked another blow to his right side and a third blow which may have missed him. The baton was hit with such force that it hit SC Pitkethly on the head, but not with great force. Still, SC Pitkethly lost control of the baton and the baton landed on the ground.
It was at about this time that Const Bailey arrived.
When SC Pitkethly was about 12 metres behind the police car he took two steps back and took out his gun as Mr Crowley swung again with the kendo stick. At this stage Const Bailey noticed Mr Crowley advancing again on SC Pitkethly who was still backing away. SC Pitkethly was only about 1.5 metres away from Mr Crowley when he raised the kendo stick to strike SC Pitkethly again.
SC Pitkethly warned Mr Crowley that he would have to shoot him. SC Pitkethly said that he said on two occasions, something to the effect, “stay back or I’m going to have to shoot you”. SC Willis said that he heard SC Pitkethly scream on two occasions, “I’ll have to shoot”.
SC Pitkethly shot Mr Crowley as he lunged forward with his kendo stick and Mr Crowley fell to the ground.
SC Pitkethly’s evidence was that immediately before he pulled the trigger he was convinced that Mr Crowley was going to kill him with his stick. He said that he was traumatised by the sequence of events.
The trial judge found of Mr Crowley’s behaviour “that Jonathan’s action immediately before SC Pitkethly fired at him could reasonably have been interpreted as seriously threatening”.
In our view this is an understatement. A close reading of the evidence of those persons who were present indicates that Mr Crowley’s behaviour after the police car arrived was more than seriously threatening. It was irrational. Mr Crowley had committed very serious assaults on both officers, who feared for their lives.
As we mentioned earlier, Mr Crowley’s counsel had conceded at the trial that SC Pitkethly was not negligent in firing at Mr Crowley because of the predicament in which he found himself. That concession was rightly made.
The trial judge found (at [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.
The trial judge went on to consider where SC Willis was at the time that SC Pitkethly shot Mr Crowley, apparently because her Honour thought she should address whether SC Willis behaved inappropriately or in a cowardly manner. On the appeal, all counsel agreed that no such suggestion had been made by any of the parties.
Mr Crowley was removed from the scene by ambulance. He told the ambulance officer that his name was Jonathan Crowley but that he was also “God”, and therefore he was not going to die. Although during the trip to hospital he gave rational answers to questions about his physical condition, he made other statements that indicated he was still in the throes of a psychotic episode. Key Conclusions of the Trial Judge
The trial judge (at [437]-[445]) provided a summary of what she described as “findings and impressions”, and it is convenient to set those matters out at this point: 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.
The trial judge found that all three defendants owed Mr Crowley a duty of care.
In the case of the police, her Honour rejected their primary submission that no duty of care arose when police were investigating crime, finding that there was such a duty because SC Pitkethly had assumed it when he and SC Willis exercised their authority as police officers by “taking control of the situation”. She said that the duty was owed “to those willingly or unwillingly caught up in that situation”, including Mr Crowley.
She found that there was no duty of care up until that time.
In the case of the ACT, her Honour held that ACTMH owed a duty of care to Mr Crowley by reason of Mr Wells’s attendance at the Crowley home on the Monday evening and his advice to Mr Keith Crowley that the Crisis Team would attend the next day to further assess Mr Crowley for the purpose of his admission to hospital, and by reason of Mr Morris’s observation of him at about 10.50am the next day.
The trial judge did not identify the content of the separate duties of care, but having found the duties of care to arise, moved straight to the question of breach.
As her Honour found that the duty of care owed by the police did not arise before the officers “assumed control” in Doyle Crescent, failing to seek ACTMH advice before then could not give rise to a breach of the duty of care. She further found that if an inquiry had been made of ACTMH before the officers had left the Chapman shops they would not have received any advice from ACTMH which would have assisted them. She also specifically found that the two police officers were not in breach of any duty of care owed to Mr Crowley in their use of capsicum spray or batons. She also found that SC Pitkethly was not in breach of his duty to Mr Crowley in drawing or firing his service revolver.
Her Honour found that the police breached their duty of care: (a) by Senior Constables Pitkethly and Willis failing to make a detailed plan or a formal risk assessment whilst travelling from the Chapman Shopping Centre to Doyle Terrace; (b) by Senior Constables Pitkethly and Willis after arriving at Doyle Terrace getting out of the police car rather than remaining within it; and (c) by Senior Constables Pitkethly and Willis failing to attempt any real negotiation with Mr Crowley, but instead adopting an aggressive and threatening manner.
Her Honour said (at [845]-[850]): 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.
Her Honour found the Commonwealth vicariously liable for the breaches by SC Pitkethly.
With respect to the ACT, the trial judge found (at [987]) that Jason Morris, as an employee of ACTMH, was “affected by the duty of care owed to Jonathan by ACTMH”.
Her Honour went on to find that ACTMH breached its duty of care to Mr Crowley in three respects: (a) by failing to pursue Mr Wells’s plan for Mr Crowley’s admission to hospital and then failing to assess him and facilitate his admission to hospital on the Tuesday morning; and (b) by Mr Morris failing to pass on to Mr Keith Crowley and Mrs Crowley his observations of Mr Crowley when Mr Morris was aware that Mr Crowley was the subject of an ACTMH plan for admission to hospital; and (c) by Ms Twell and ACTMH failing “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” (at [1031]).
As to (b), her Honour rejected the other limb of Mr Crowley’s case concerning Mr Morris’s conduct, namely, that ACTMH was negligent in Mr Morris failing to advise it of his observations of Mr Crowley before 12.52pm. The finding that ACTMH was not negligent in that respect was contested by Mr Crowley on the appeal and is the subject of a notice of contention.
As to (c), Mr Crowley did not seek to uphold this conclusion on the appeal. In other words, he did not contend that the trial judge was correct to conclude that the “failure” of Ms Twell and ACTMH constituted negligence by ACTMH.
Having dealt with the breaches, the trial judge addressed the question of causation.
With respect to the police, her Honour found (at [873]): … that if, before the two officers had got out of the car, they had 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 negotiations 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; (d) or perhaps, that it was feasible to sit in the car observing Jonathan Crowley until either the imminent arrival of other police officers or an indication that Jonathan Crowley was about to run away or attack someone; that delay in confronting Jonathan Crowley would have made the necessary difference.
Alternatively, her Honour said (at [874]) that: … if one or even both of the police officers had got out of the car quickly but had engaged genuinely with Jonathan Crowley 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 Crowley if necessary (on the basis that while he was chasing them he was not attacking anyone else), that, too, would have made the necessary difference.
Her Honour found that if the two police officers had delayed by even 30 seconds attempting to engage with Mr Crowley or if they had attempted to engage in a less confrontational way, the situation would not have reached the point at which SC Pitkethly decided to take out his gun and shoot him.
We turn now to her Honour’s findings on causation in relation to ACTMH.
In view of the concession in relation to the third aspect concerning the failure to pursue the reasons for the police interest (see [260] above), it is not necessary to say anything more about that.
As for the failure to pursue Mr Wells’s plan for Mr Crowley’s admission to hospital and in failing to assess him again and to facilitate his admission on the morning of 11 December 2001, her Honour found causation established by either of two alternative routes. First, she found that, had Mr Crowley been assessed on the morning of 11 December 2001, his admission to hospital would have followed “involuntarily if necessary”. Her Honour said that if that were wrong, in the alternative, an assessment on the morning would have meant that Mr Crowley’s parents would have sought to ensure that he was not thereafter left unsupervised until his condition had resolved.
As for Mr Morris’s failure to report Mr Crowley’s odd behaviour to the Crowley family, her Honour found that, had he done so, the family would have supervised him more carefully and possibly even re-engaged with the Crisis Team.
As to the particular of negligence raised by Mr Crowley in his notice of contention, the trial judge found, it seems, that causation would not have been made out. Her Honour said (at [1070]): 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. ISSUES ON THE APPEALS Did the Police owe Mr Crowley a duty of care?
The AFP is obliged to discharge two duties: one conferred by statute, the other arising at common law. One of the functions of the AFP designated by subs 8(1) of the AFP Act is to provide police services to the ACT meaning “services by way of the prevention of crime and the protection of persons from injury or death, and property damage, whether arising from criminal acts or otherwise”. All serving members of the AFP are obliged to carry out that function.
The statutory responsibility is consistent with the duty police officers owe at common law to the general public, namely, a duty to enforce the criminal law: R v Commissioner of Police of the Metropolis; ex parte Blackburn [1968] 2 QB 118; Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59 (“Hill”); Hinchcliffe v Commissioner of Police (2001) 118 FCR 308 at [33]. Those duties exist for the benefit and protection of the general public. The community requires a strong and energetic police force to enforce the criminal law by preventing crime and protecting members of the public from injury to their person and damage to their property.
The duties are owed to the public at large. They must be discharged notwithstanding the risk of injury to a person suspected of criminal activity. Otherwise the suspect’s rights would prevail over the rights of the whole of the community.
In some circumstances, the discharge of those duties may give rise to a risk of injury to a victim or bystander. Again, the duties of the police to the community must prevail. That is not to say that a police officer can never owe a duty of care to a suspected criminal, victim or bystander. There will be circumstances where a police officer can discharge the statutory and common law public duties without risk of injury to a suspected criminal, victim or bystander, and in these circumstances, it may be that the police officer will be found to owe a duty of care to any of those classes of person.
The discharge by the police of their public duties cannot be constrained or limited by the fear that in carrying out those duties police officers may be found to be liable to suspected criminals, victims or bystanders, because that will impede the discharge of those duties. If it were otherwise, policing would become unduly defensive and therefore inefficient, and, as a consequence, members of the community would be put at risk. In Brooks v Commissioner of Police of the Metropolis (2005) 1 WLR 1495 (“Brooks”), Lord Steyn said at [30]: 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.
In Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 (“Van Colle”), Lord Hope of Craighead said at [75], speaking of the decision of the House of Lords in Hill: The point that he was making in Brooks, in support of the core principle in Hill, was that the principle had been enunciated in the interests of the whole community. Replacing it with a legal principle which focuses on the facts of each case would amount, in Lord Steyn’s words, to a retreat from the core principle. We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases to undermine that principle.
In Calveley v The Chief Constable of Merseyside Police [1989] AC 1228 Lord Bridge of Harwich said at 1238: Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
The House of Lords had regard to those matters of policy in Hill. In that case, the defendant was the Chief Constable of an area in which the plaintiff’s 20 year old daughter was attacked and murdered. Her attacker was the Yorkshire Ripper who was later convicted of her murder. It was alleged against him that he had committed a series of offences of murder and attempted murder against young women in the area in similar circumstances over a period of years before the plaintiff’s daughter was murdered.
The plaintiff’s case against the Chief Constable was for negligence in the conduct of investigations into the antecedent crimes and for failing to apprehend the murderer and so prevent the murder of her daughter. The defendant applied successfully to have the writ and statement of claim struck out as disclosing no cause of action. The Court of Appeal dismissed the plaintiff’s appeal against that order. The plaintiff brought an appeal to the House of Lords.
The House of Lords unanimously found that the police did not owe a duty of care. Lord Keith said at 59: 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 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.
The other members of the House agreed with Lord Keith’s speech. Lord Templeman in his speech said at 65: Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties. This action is in my opinion misconceived and will do more harm than good. A policeman is a servant of the public and is liable to be dismissed for incompetence. A police force serves the public and the elected representatives of the public must ensure that the public get the police force they deserve. It may be that the West Yorkshire police force was in 1980 in some respects better and in some respects worse than the public deserve. An action for damages for alleged acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshire police force can be improved in 1988. I would dismiss the appeal.
The decision in Hill was cited with approval by the High Court in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [132] per McHugh J and at [221] and [231]-[232] per Kirby J; Sullivan v Moody (2001) 207 CLR 562 (“Sullivan v Moody”) at [57].
In D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1, McHugh said at [101]: 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 a criminal, a member of a particular class of persons may suffer physical harm. In making these observations McHugh J referred to the decision in Hill.
In Tame v New South Wales(2002) 211 CLR 317 (“Tame”), Gummow and Kirby JJ said at [231]: 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. Counsel for Mrs Tame submitted that Mrs Tame’s conduct was not under investigation at the time the Traffic Collision Report was completed. It was said that Mrs Tame was an accident victim in respect of whom there was no suspicion of any criminal offence. However, it is unnecessary to pursue that question, because, for the reasons that follow, Mrs Tame’s action fails at the outset. (Footnotes omitted)
The decision in Hill has never been doubted in England and Wales: Brooks. Lord Steyn acknowledged the principle as a core principle which remains “unchallenged in domestic and European jurisprudence”: see also Van Colle at [75].
It has been applied by the Court of Appeal in New South Wales in State of New South Wales v Paige (2002) 60 NSWLR 371 and Cran v State of New South Wales (2004) 62 NSWLR 95 (“Cran”), in the Court of Appeal in Queensland in Gibbs v Commissioner of Police [2000] QCA 33, in the Full Court in South Australia in Halech v South Australia (2006) 93 SASR 427 and in this Court of Appeal in Mensinga v Director of Public Prosecutions [2003] ACTCA 1. We should follow it, too.
There are some important matters to observe about the principle identified in Hill. First, it lays down a principle of general application and should not be understood as peculiar to the facts under consideration: Alexandrou v Oxford [1993] 4 All ER 328 at 340; Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 at 483G-F, 485F. Secondly, the reference by Lord Keith to “investigation of crime” is not meant to be narrowly confined to only that part of police activity: Osman v Ferguson [1993] 4 All ER 344 (“Osman v Ferguson”). The principle applies to operational policing where very quick decisions have to be made by police officers in very difficult circumstances. In Osman v Ferguson, McGowan J said at 353 that to exclude operational decisions was not supported by Hill’s case and raised a dividing line that is “utterly artificial”. To restrict the principle to non-operational circumstances would be to deny the policy matters which inform the principle.
Apart from the reasons given in Hill, there is another reason why police officers do not owe a duty of care to a suspect whom they are attempting to apprehend or arrest for the protection of the public. Common law duties cannot be imposed upon authorities if the discharge of the common law duty would conflict with a statutory duty owed by that authority. In Sullivan v Moody, the Court said at [60]: 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.
In Stuart v Kirkland-Veenstra (2009) 237 CLR 215 (“Stuart v Kirkland-Veenstra”) at [112]-[113] and in GAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [39]-[42], the High Court confirmed the need to determine whether the asserted duty of care conflicted with other legal obligations in deciding whether the duty exists.
In State of New South Wales v Tyszyk [2008] NSWCA 107 (“Tyszyk”) at [125] Campbell JA said: Partly on the basis of Hill, a wider principle than Hill itself articulated has been accepted both in 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” …
The principle is the same in England and Wales: X (Minors) v Bedfordshire County Council [1995] 2 AC 663.
The High Court has had to consider that principle in circumstances where it was said that a police officer owed a duty of care to the person whose conduct was under investigation. In Tame, the High Court concluded that no such duty existed. Gleeson CJ said at [26]: The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report. (Footnotes omitted)
Gaudron J said at [57]: It would be incongruous and, perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation. (Footnotes omitted)
To like effect is the passage in the reasons for judgment of Gummow and Kirby JJ set out in paragraph 283 above.
Hayne J was more emphatic. He said at [298]: Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties. (Footnotes omitted)
We have made mention of judgments of intermediate appellate courts in Australia which have considered the scope or boundaries of the immunity and its exceptions. The primary judge discussed a number of these decisions and they were referred to in the submissions to this Court. We do not propose to refer to all of them because, in the end, we have concluded that no one or uniform approach can be discerned. We propose to discuss briefly the major New South Wales and Victorian authorities.
In Cran, Santow JA said (at [64]) that the law steadfastly denied a civil remedy in relation to the police investigative function except where there had been an assumption of responsibility. Earlier, his Honour had described the exception of assumption of responsibility by the police to a plaintiff as “a narrow exclusion zone where, despite the immunity and policy factors supporting it a duty of care is recognized” (at [52]). Both Santow JA and Ipp JA (with whom McColl JA agreed) rejected a distinction between functions of disclosure and investigation – for which there was immunity – and administrative and investigative tasks – for which it was said by the plaintiff that there was no immunity. They did so for the reason, among others, that there was no bright line between the functions (at [63] per Santow JA; at [73] per Ipp JA).
In Tyszyk, Campbell JA discussed the scope of the immunity and his Honour made a number of points. He said (at [128]) that nothing in Hill or Sullivan v Moody suggested that police had immunity from action for negligence. His Honour did not think that any of the policy reasons identified by Lord Keith in Hill precluded the finding of a duty of care in the case before the Court. He carried out the multi-factorial analysis referred to in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (“Graham Barclay Oysters Pty Ltd v Ryan”) at 597-598 [149] per Gummow and Hayne JJ and concluded that the police officers did not owe the plaintiff a duty of care. He concluded that the police officers did not create the risk of harm and did not have control in the relevant sense (at [150]). He also concluded that the plaintiff was not vulnerable in the relevant sense because all he had to do was to look up to see the dangling drainpipe (at [152]).
In State of New South Wales v Spearpoint [2009] NSWCA 233, the New South Wales Court of Appeal heard applications for leave to appeal from decisions not to dismiss two statements of claim. Leave to appeal was refused. The Court said that there was no absolute immunity afforded to police for their conduct in the course of their duties. The Court held that it was arguable that there was a duty of care in that particular case. This was because it was arguable that the plaintiffs could establish reliance on the police to take a particular course of action involving a third party and because of their vulnerability to harm from the third party if the police did not do so.
In Zalewski v Turcarolo [1995] 2 VR 562 (“Zalewski”), the Appeal Division of the Victorian Supreme Court upheld a verdict against police officers. It appears that there were two grounds for the decision: (1) In the circumstances, there was “specifically identified antecedent negligence by a particular senior officer” which took the case outside the immunity identified in Hill. That “specifically identified antecedent negligence” was an experienced police officer acting “impetuously without due inquiry 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 … was a probable consequence of his actions” (at 578-579 per Hansen J). (2) The immunity claimed by the police was not made out because the way in which they presented their case was conditional upon them showing that there had been compliance with their training and instructions and that had not been established (at 579 per Hansen J).
In State of Victoria and Ors v Richards (2010) 27 VR 343 (“Richards”), the Victorian Court of Appeal declined to overrule Zalewski. Richards was an appeal from a refusal to summarily dismiss a claim against police. The Court said that it was not unarguable that the police owed a duty of care to an innocent member of the public who suffered harm as a direct and immediate consequence of police action. The decision provides some support for Mr Crowley’s arguments that there is no immunity, although unlike the trial judge, for reasons we will give, we think that, depending on the circumstances, the police may owe a duty of care to innocent bystanders but not the alleged offender or person they are trying to apprehend.
In State of New South Wales v Klein [2006] NSWCA 295, Young CJ in Eq (with whom Beazley JA and Santow JA agreed) said that the immunity identified in Hill applied to police officers unless the case was a case of express or implied assumption of responsibility or one of the possibly extraordinary situations which had been recognised. The Chief Justice said the decision of the Appeal Division of the Victorian Supreme Court in Zalewski was probably correct on the facts, but was of little value as a precedent.
The first ground for the decision in Zalewski involves a test which will be difficult to apply and, with respect, seems to us, to involve a distinction which does not accurately, or at least fully, reflect the reasons for the immunity as identified by Lord Keith in Hill. At the same time, it has to be acknowledged that the test has some support in the authorities, particularly the English authorities, and that to try and harmonise the authorities by reference to a single test is very difficult, if not impossible. Nevertheless, the weight of authority is to our minds against the test formulated in Zalewski.
With respect to the second ground for the decision, although police training and instructions were the subject of evidence in this case, the Commonwealth and SC Pitkethly did not make their claim for immunity conditional upon compliance with them. There is nothing in Hill and the authorities which followed it which makes the immunity conditional upon compliance with training and instructions.
In our opinion, this is a classic case for the application of the core principle in Hill and the principle identified in Sullivan v Moody.
Senior Constables Pitkethly and Willis were despatched and left the Chapman Shops for the purpose of attempting to locate a person who they had been informed had assaulted one person and caused terror to two others in suburban Canberra. The person they were despatched to locate was carrying a weapon.
When they came upon Mr Crowley they owed him no duty of care in apprehending him. It could not, in our opinion, be otherwise. Police officers cannot be under an obligation to discharge a duty of care to an armed person in attempting to arrest that person.
Her Honour appears to have concluded that there was an immunity for police subject to “some narrow and specific exceptions”, but that outside the immunity the police might owe a duty of care where they had assumed a duty in a particular situation. She said that might occur, and in fact did occur, in this case where police had taken control of a situation. Her Honour found that the two police officers “took control of the situation” when SC Pitkethly stopped the police vehicle close to Mr Crowley, did not reverse the vehicle and alighted it. It is not clear what her Honour meant by the finding, but it would seem that she equated those three actions with taking control.
There is authority for the proposition that in certain circumstances the police will be liable if they assume responsibility to a particular member of the public. In Swinney v Chief Constable of Northumbria [1997] QB 464, for example, a case brought by a police informer and her husband, the Court of Appeal of England and Wales held that it was arguable that a special relationship arose because the police had assumed responsibility to preserve the confidentiality of the information, disclosure of which was likely to expose the plaintiffs to a risk of injury greater than that to which an ordinary member of the public would be exposed, although the expression has been criticised as potentially misleading (see Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 654 per Lord Slynn). But this is not such a case. Police will owe a duty of care to prevent harm to a person in their custody (Howard v Jarvis (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; see also the discussion in R Clayton QC and H Tomlinson QC (eds) Civil Actions Against the Police (3rd ed, Sweet & Maxwell, 2005), at [10-029]–[10-033] and at [10-053]–[10-056]). But Mr Crowley was not in police custody at any material time. Indeed, he was never arrested, apprehended or detained by the police.
A number of additional points about her Honour’s approach should be noted.
First, her Honour included in her concept of “taken control” the concept of “attempting to take control, of a situation in reliance on their authority and powers as police officers”. Secondly, her Honour said that no sensible distinction could be drawn between, on the one hand, bystanders and victims, and, on the other hand, alleged offenders and suspects. She made the point that sometimes the police would not be able to distinguish between the two groups.
We disagree with both these conclusions. There is clearly a difference between having taken control and being in the process of taking control. In the former case, the person in control usually has the ability to control the risk of harm which is in issue. By contrast, in the latter case, the “situation” is still fluid. In any event, control of a “situation” is a vague notion. A more concrete notion is control of a group of people or of a geographical area. We think a member of the police force might be in control (in the relevant sense) of a group of bystanders at a scene, but not in control of an alleged offender or suspect. Therefore, contrary to the view of the trial judge, it is possible, subject to other considerations, that a member of the police force may owe a duty of care to a bystander, but not to an alleged offender or suspect.
The trial judge erred in finding that a duty of care arose at any time.
We would describe the conduct of the two police officers as attempting to take control of the situation, in particular of Mr Crowley, rather than as taking control of the situation. By their conduct, which was carried out in the course of investigating and suppressing apparent criminal or possible criminal behaviour, they did not assume a duty of care to Mr Crowley. It could not be said that by their actions they had assumed responsibility for Mr Crowley or that they had sufficient control over him and his conduct so that they were in a position to take reasonable steps to avoid the risk of injury to him. This is not the type of case that the High Court considered in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [102]. Assuming there was a duty of care, was it breached?
If, contrary to our view, Senior Constables Pitkethly and Willis owed Mr Crowley a duty of care in approaching and engaging with him in order to apprehend him to prevent a risk of injury to him, then, in our view, they did not breach that duty.
Before expressing our reasons for this conclusion, we address two aspects of the evidence at trial said to be relevant to breach, namely, expert evidence in relation to policing and police practices and protocols.
Her Honour considered generally the expert evidence that was led from seven different experts, two of whom gave evidence of how a properly functioning publicly funded mental health service might operate and five of whom gave evidence “in relation to the police response to Jonathan’s emerging crisis”. The evidence of an eighth witness, a surveyor, was held not to be the evidence of an expert opinion.
Mr Crowley and the police called evidence, which the parties described as “expert evidence”, about the appropriateness of the police response to Mr Crowley’s situation. Mr Crowley called Richard Jennings, who at the time of the trial was employed as a Security and Safety Risk Analyst. He had previously served in the London Metropolitan Police Service from 1963 until 1978. During his time of service he had experienced a number of situations involving persons displaying “unstable psychiatric behaviour”. Since leaving the police force in 1978 he had worked in the private security business.
Mr Crowley also called Peter Smith, who is the managing director of Ulong Risk Management where he works as a senior consultant and senior defensive tactics instructor. He had been a member of the AFP for five years before resigning in 1988. He had little operational experience while a member of the police force and has had none since. His experience is mainly in the use of force in the apprehension of mentally ill persons.
The third expert called by Mr Crowley was Norman Hazzard, who was a member of the New South Wales Police Force for 41 years. Mr Hazzard retired in March 2006 having reached the position of Assistant Commissioner, Counter-Terrorism. He assisted in developing a University course for police negotiators which included a Masters degree and as part of the University program for police across Australia. He has not operated as a general duties police officer since 1969.
The police called Darren Rath, who has been a member of the AFP since 1984 and was the Senior Liaison Officer for the AFP in Vietnam when he gave evidence. Mr Rath has significant experience in operational police duties. He has conducted reviews into two police shootings, including one in the ACT in 1995. He has assisted in the development of training and operating principles for the AFP.
The second witness called by the police was Geoffrey Schuberg, who was a retired Assistant Commissioner of Police, New South Wales. He commenced as a uniformed police officer and rose through the ranks to Assistant Commissioner before retiring in 1977. In his last six years in the police force (he retired in 1997), he was Director of Investigations at the Independent Commission against Corruption and, from 1994, Commander, Professional Responsibility. In 2001 he was appointed to the New South Wales Police Minister’s Advisory Council.
The trial judge expressed doubts about the “specialised knowledge” of these witnesses. She said that their evidence on many topics did not seem to be based on a body of technical knowledge to which she otherwise would not have had access. She said that the evidence seemed to amount to using a degree of common sense and good judgment in applying to real life situations the AFP principles and policies.
Her Honour observed that all, except Mr Rath, who was still a senior member of the AFP, had ceased to be engaged in operational policing for many years. She also noted that Mr Rath gave evidence to which no objection was taken that related to his position as a senior AFP officer, including the policies and procedure of the AFP.
Her Honour referred to a submission from counsel for the police to the effect that Mr Crowley’s experts should be given less credence than theirs, discriminating between active police officers and what he described as “security experts”. Her Honour noted that that contention reflected her own concerns about the existence of a relevant recognised field of expertise in relation to policing (at [69]). She also expressed concern that two of the police officers called – Federal Agent Rath and Mr Carnall, who was not called as an expert but proffered opinions when asked – were serving police officers.
Her Honour said that Mr Schuberg’s evidence “provided several remarkable examples of question begging reasoning …”. She said (at [71]-[72]) of the expert evidence on the question of police response generally: In the event, choosing among the views of the experts has not caused me any particular difficulties, for the following reasons. 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.
At the time of the trial the Evidence Act 1995 (Cth) (“Evidence Act”) applied in the ACT by force of s 4 of that Act.
The expert evidence (if it may be termed that) on both sides went in without objection. No attempt was made by the parties to determine the admissibility of the evidence by reference to s 79 of the Evidence Act.
No attempt was made by the parties to identify the specialist knowledge reposed in each of the witnesses and how it was based upon that person’s training, study or experience.
Much of the evidence that was adduced by the parties was no more than the personal opinion of the witness as to what should have been the appropriate reaction of the police officers in the period after the police officers left the command post to the point of time when the plaintiff was shot.
We think that the evidence was in many respects unhelpful.
For evidence to be admissible under s 79 of the Evidence Act, three matters must be established: first, that the witness has specialised knowledge; secondly, that the specialised knowledge is based upon that person’s training, study or experience; and thirdly, the opinion which is to be expressed is wholly or substantially based on that specialised knowledge.
“Specialised knowledge” is not defined in the Act. At common law, the admissibility of an expert’s opinion depended upon the expert’s expertise. Dixon CJ said in Clark v Ryan (1960) 103 CLR 486 at 491: On the one hand it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.
That passage has been applied in relation to the Evidence Act: Australian Securities and Investments Commission v Vines (2003) 48 ACSR 291.
The trial judge doubted that the parties had established that the witnesses had specialised knowledge.
In our opinion, the parties did not establish with any degree of clarity that there was a field of specialist knowledge of which the judge could not have been aware without training, study or experience.
The evidence that was called by the parties in this case really amounted to no more than the witnesses’ evidence of the judgment the witness would have made if the witness had been in the same position as Senior Constables Pitkethly and Willis.
The other problem with the evidence is the lack of findings in relation to the assumptions made by the experts for the opinions offered. It is not clear upon what basis the witnesses were offering opinions.
Her Honour referred to Heydon JA’s dicta in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]: 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.
The trial judge also referred to Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [7] and [87]. Her Honour said (at [57]-[58]: 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. 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.
After discussing the evidence relating to mental health, her Honour said (at [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.
The experts’ opinions were not considered against the assumptions they made and the findings made by the trial judge.
We share the same doubts as expressed by her Honour as to the utility of the evidence.
For these reasons, we think the case should be decided by reference to the Court’s judgment as to what was appropriate in the circumstances that prevailed.
We should also mention the trial judge’s approach to procedures, protocols and training materials put before her.
The parties tendered a number of AFP documents, including the Commissioner’s orders that are issued under the AFP Act which deal with the use of force by the AFP.
Other documents that also deal with policing, including a document entitled “Ten Safety Principles for Operational Policing”, a document entitled “Police Safety Principles (Circular Model)” and a document “ACT Region Ten Point Safety Plan”, were tendered. In addition, “AFP Response Options: Conflict De-escalation Model”, which had been prepared by AFP officers, but never formally adopted, and “Standing Operating Procedures: Operation Support Group” were tendered.
Her Honour (at [616]) identified from the various documents, but in particular the Safety Principles (Circular Model), nine options for police responses, being: Ÿ reasonable: any application of force must be reasonable, necessary and proportionate to the threat or resistance offered; Ÿ evaluation: prior intel gathering and evaluation may reduce the need for later use of force; conduct risk assessments; Ÿ safety: the primary consideration must be the safety of all persons involved; Ÿ preparation: mental and physical; planning is critical; consider limitations and parity/disparity; Ÿ objectives: should be continually reassessed; do not lose sight of aims and objectives merely because of confrontation; Ÿ 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; Ÿ 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; Ÿ empowerment: acceptance of responsibility and accountability; allocation of appropriate resources; effective command and control – assertive communication style.
Her Honour made an assessment of the conduct of Senior Constables Pitkethly and Willis against each of those matters, and then turned to assess the expert evidence (at [828]–[835]): 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.
Her Honour then had regard to the evidence of Const Bailey, which she described at [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”.
Const Bailey, it will be recalled, was on motorcycle traffic duties and responded at 1.15pm to a radio call by offering to help locate Mr Crowley. He went to the Chapman shops. It would appear he was the first to leave. He searched along bike paths. He arrived at Doyle Terrace just seconds before Mr Crowley was shot. It was he who reported the shooting at 1.36.39pm.
The trial judge then, without any further discussion, made the following findings (at [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).
It is not clear how the trial judge used the expert evidence to arrive at the findings made in [837] of her reasons, but we think it was not based upon the expert evidence but upon her Honour’s assessment of the officers’ own conduct. We think that follows because of her earlier statements to which we have referred at [339]-[340] in which she doubted the utility of the expert evidence.
We think (as her Honour did) that the question of breach of duty should not be assessed by reference to the expert evidence for the two reasons mentioned: first, because the field of specialised knowledge was not identified, and secondly, the assumptions upon which the experts gave their evidence are not clear.
The documents provided some guide as to the operational behaviour of police officers. But they are no more than a guide.
The question of whether there has been a breach of duty is a question of fact. The standard of care is that of a reasonable person and often a range of responses may meet the standard. The relevant considerations drawn from Wyong Shire Council v Shirt (1980) 146 CLR 40 (“Wyong Shire Council v Shirt”) are discussed later in these reasons in connection with the liability of the ACT (at [400]-[401]) and, in addition, the point is made that in applying the test the assessment is a prospective one. As Gummow and Hayne JJ said in New South Wales v Fahy (2007) 232 CLR 486 (“New South Wales v Fahy”) at [57]: It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.
With respect to her Honour, we think that she applied a counsel of perfection to the conduct of the police, perhaps falling into the error of looking backward to identify what would have avoided the injury.
There were probably a range of responses to the situation SC Pitkethly and SC Willis found themselves in, but the question is whether their conduct fell below the standard of care of a reasonable person.
The breaches of duty found by her Honour are identified above (at [254]).
The assumption upon which we are considering the question of breach is that we are wrong about the immunity. That assumption, however, does not mean that the statutory and common law duties of the police (see [270]-[271] above) are to be ignored. Even if there is no immunity, the statutory and common law duties of the police provide part of the context in which events occurred.
Her Honour first found that Senior Constables Pitkethly and Willis breached their duty of care by failing (in the car during the short trip from the Chapman shops or before getting out of the car in Doyle Crescent) to conduct “any useful planning or risk assessment”.
As counsel for the police put it in submissions, such a criticism begs the question of whether, in all the circumstances, any useful planning or risk assessment was possible. It is difficult to see what planning they could have done. They did not know at that stage if they would find him. They did not know whether he would be alone or in company. They did not know if he would flee or succumb. They did not know how he might behave in the face of their authority. They did not know that he had a dislike of the police. They knew nothing of the nature of his illness. What is more, it must be remembered that (on her Honour's findings) this planning should have taken place in the one to two minutes it would have taken the officers to get from the Chapman shops to Doyle Crescent while they were trying to find him.
In the face of so many imponderables and in the limited time available, it was not unreasonable for the officers not to work on a plan for dealing with Mr Crowley in the event that they found him.
Her Honour found that the second breach by the officers was in getting out of the police car rather than remaining within it. In doing so she said that their “unarticulated assumption” that Mr Crowley’s response would be benign could not be attributed to his behaviour (at [748]). In this respect, too, we consider her Honour was in error.
As we have said, her Honour ought to have accepted the uncontradicted evidence of Mr Oakley and Mr Richter, to which we have referred at [224], that when the police officers arrived Mr Crowley appeared to be willing to surrender. In those circumstances, it cannot be said that the police officers breached their duty of care to Mr Crowley by getting out of the car. If, as the independent witnesses say, he was apparently willing to surrender, it was appropriate for the police officers to accept that surrender by getting out of their car and facing him.
It is true, as her Honour observed, that the police were not required to get out of the car immediately, but the relevant inquiry was not what they were required to do but whether they acted unreasonably in doing so. In our view, the proper conclusion on the evidence was that they did not.
The trial judge also found that the police officers breached their duty because they failed to have a conciliatory conversation with Mr Crowley when they got out of their car.
When they got out of the car, Mr Crowley did not submit to their authority as they and the independent witnesses had expected. He reacted unexpectedly by becoming aggressive.
Once out of their car, their duty as police officers was to control Mr Crowley’s actions. They were entitled to use forceful language to make it clear to him that he had to put down his weapon immediately and submit to their authority.
As we have already indicated, the police officers did not know of Mr Crowley’s attitude to the police. They were not to know that he would react to their presence and their authority by attacking them. They were entitled to assume that he would comply with their forceful directions.
It is difficult to think that police officers should adopt a conciliatory approach or have a conciliatory conversation with a large man holding a stick over his head who is acting aggressively. In our view, her Honour gave insufficient weight to the exigencies of the situation confronting the police at the time.
We also consider her Honour gave insufficient weight to the conflicting responsibilities the police had at the time, a factor that must be taken into account in determining the reasonableness of their response. The police were obliged to keep the peace. A large man wielding a kendo stick, whose behaviour was unpredictable, posed a risk to those people in the vicinity and to the community. Had he fled, he could have harmed others, or at least frightened them. The evidence before the Court was that the officers were concerned about these matters at the time. It is no answer to say, as her Honour did, that Mr Oakley and Mr Richter were not in imminent danger. Approaching this matter from the perspective of a reasonable person in the position of the officers at the time, Mr Crowley could have done anything.
For all these reasons, her Honour’s findings that the police breached their duty of care to Mr Crowley should be set aside.
For the reasons we have given, we think the appeal by the Police ought to be allowed and the judgment entered against them set aside. Instead, there should be an order that there be judgment for the police against the plaintiff. Did ACTMH owe Mr Crowley a duty of care?
At the outset, it is to be noted that on one view of its defence, ACT did not dispute that it owed a form of a duty of care to Mr Crowley. The difficulty is that Mr Crowley did not plead in precise terms the duty of care and the scope of the duty of care he alleged that the ACT owed to him. At all events, counsel for Mr Crowley did not submit that it was not open to the ACT to run a case on appeal that it did not owe a relevant duty of care to Mr Crowley, or that leave was necessary to do so, and it seems fairly clear from her Honour’s reasons, that the issue of whether ACT owed a duty of care to Mr Crowley was a live one in the court below.
Her Honour’s decision was founded on the existence of a relationship of health care provider and patient, which “for convenience” she said she would call a “doctor-patient” duty. Her Honour made several references to the duty imposed on medical practitioners in the provision of professional advice and treatment (Rogers v Whitaker (1992) 175 CLR 479 at 483 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). However, there are several difficulties with this, not least that the ACT was never asked, nor did it offer, to provide treatment. Her Honour never explained why the relationship was properly characterised as such.
In our view, the relationship between ACTMH and Mr Crowley on 11 December 2001 was not that of doctor and patient, or health care provider and patient.
It is true that a doctor and patient relationship may arise even though the “patient” does not make a voluntary or consensual decision to be treated (Everett v Griffiths [1920] 3 KB 163), and that the undertaking of treatment may be sufficient to give rise to the relationship of doctor and patient: Jones v Manchester Corporation [1952] 2 QB 852. But in the present case, ACTMH did not undertake treatment. Nor did it embark upon treatment. Mr Crowley had had no contact with ACTMH before Mr Wells attended the Crowley home on the evening of 10 December 2001. Mr Wells’s attendance, however, was not for the purpose of treating Mr Crowley. It was for the purpose of considering whether the power in subs 37(2) of the Mental Health Act had been engaged. The circumstances were such that if the matter could be resolved voluntarily and without the need for involuntary detention and the involvement of the police, then that would occur, but that possibility should not be allowed to divert attention away from the fact that an assessment under subs 37(2) was both the occasion and the purpose of ACTMH’s contact with Mr Crowley. The fact that the tasks Mr Wells performed were the same as or similar to the tasks he would have performed if he had attended for the purpose of treating Mr Crowley (assuming he was qualified to do so) does not mean that he had initiated treatment or entered into a treatment relationship. Mr Wells’s plan was not to embark upon treatment but to complete the assessment.
Had Mr Crowley been admitted to an approved health facility operated by the ACT, a duty of care would have arisen, because, by the act of admission, the facility would have undertaken to take reasonable care to provide for his medical needs (and the duty would have been a non-delegable one): Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 562. So, too, if he had presented, for example, at the Emergency Department of one of its hospitals. But that never happened. Had an employee of the ACT agreed to treat him, he or she would have been under a duty to take reasonable care in doing so and the ACT would have been vicariously liable for negligence on his or her part in the advice or treatment provided. But that did not happen either. Nor did Mr Crowley clearly plead that the ACT was vicariously liable for the negligence of its employees.
In all the circumstances, we consider that the trial judge erred in holding that the relationship between Mr Crowley and ACTMH was that of health care provider and patient and in finding that ACTMH owed Mr Crowley a common law doctor-patient duty to exercise reasonable care and skill in the provision of professional advice and treatment to Mr Crowley as its patient.
The trial judge also erred in holding that ACTMH owed Mr Crowley a duty to provide appropriate treatment and care to him as a person for whom ACTMH had, as her Honour put it, “taken on a responsibility”. Presumably “care” means medical care. Such a duty is probably broader than that which is ordinarily owed by a medical practitioner whose duty is to exercise reasonable care and skill in the provision of professional advice and treatment. A duty of the type described by the trial judge (which echoes to some extent paragraph 7(a) of the Mental Health Act) might be owed to a person after his admission to, or presentation at, an approved health facility. As we have said, that did not occur in this case.
There was a good deal of debate before this Court as to whether, assuming ACTMH owed a common law duty of care to Mr Crowley, that duty included a duty to exercise the statutory power of detention in subs 37(2) of the Mental Health Act. The trial judge held that it did.
The following features of subs 37(2) should be noted. (1) Under subs 37(2), a doctor or mental health officer (“the repository of the power”) is given the power to apprehend a person and take him or her to an approved health facility. There is nothing in the language of the subsection that indicates that the repository of the power has a duty to do so. (2) A number of matters must be satisfied before the repository of the power may exercise the power. For present purposes, we note that the person whose mental state is under consideration must refuse treatment and care. Presumably, this will only occur after the treatment and care is explained to the person and a refusal occurs. We further note that the repository of the power must form an opinion on reasonable grounds that detention is “necessary for the person’s own health or safety, social or financial wellbeing, or for the protection of members of the public”. Finally, and importantly, we note that the repository of the power must form the opinion that adequate treatment or care could not be provided in a “less restrictive environment”. (3) In considering the exercise of the power in subs 37(2), the repository of the power must bear in mind the prescription in s 9 of the Mental Health Act to the effect that he or she should ensure that any restrictions on the 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. Furthermore, it is to be noted that the Act has as an objective that any treatment, care, rehabilitation and protection is to be provided in a manner that is least restrictive of the person’s human rights. This is a familiar feature of legislation of this nature (see Hunter Area Health Service v Presland (2005) 63 NSWLR 22 (“Presland”) at [360] per Santow JA).
In Stuart v Kirkland-Veenstra, the argument that there was a duty of care was closely related to the existence of statutory power in the sense that it was contended that the relationship which gave rise to the duty was created by the existence of the statutory power (at [102] per Gummow, Hayne and Heydon JJ). Gummow, Hayne and Heydon JJ referred to Graham Barclay Oysters Pty Ltd v Ryan [146], and said (at [112]-[113]) (citations omitted): Does that regime erect or facilitate ‘a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence’?

It is important to note that, in this case, the trial judge did not find that a failure to exercise the power in subs 37(2) of the Mental Health Act was a breach of a duty of care that ACTMH owed to Mr Crowley. Rather, her Honour held that ACTMH’s “failure” to exercise the power was relevant at the causation stage of the inquiry. She held that a proper assessment of Mr Crowley on the morning of 11 December 2001 would have found him to require admission, involuntarily if necessary. She said that even if that was wrong, had the breach of failing to pursue Mr Crowley’s admission to hospital on the Tuesday morning not occurred, he would not have been left unsupervised by his parents until his condition had been resolved.
In considering whether the common law duty of care included a duty to exercise the power in subs 37(2), her Honour examined the decision in Presland at some length. Mr Presland was discharged from a psychiatric hospital by a psychiatrist. Six hours later, he killed his brother’s fiancée. Mr Presland was acquitted of murder on the ground of mental illness and detained in strict custody as a forensic patient.
At first instance, Mr Presland was awarded damages against the psychiatrist and the hospital. It was found that they had been negligent in failing to care for and restrain him and that Mr Presland was at risk of injury to himself and others as a consequence of his mental illness. The risk of injury included harm suffered in detention as a forensic patient.
On appeal, Sheller JA and Santow JA held that neither the psychiatrist nor the hospital was liable. Sheller JA said (at [300]) that the nature of the harm suffered pointed, as a matter of common sense, against the existence of a legal responsibility for that harm. Santow JA said (at [315]) that it would be unjust as a matter of legal policy based on community values for the common law to allow a remedy to the patient for his non-physical injuries in the circumstances.
Spigelman CJ and Santow JA each discussed whether the duty of care owed by the psychiatrist and the hospital to the patient included a duty to exercise a statutory power to detain the patient.
Spigelman CJ noted that there were findings of negligence and that the issue on the appeal was one of the scope of the duty of care. He noted that the psychiatrist and the hospital had a duty to the psychiatric patient, who was a patient at the hospital, to provide proper care with respect to diagnosis and, subject to consent, to treatment. The question was whether the duty of care encompassed the exercise of the statutory power to detain the patient. Spigelman CJ held that it did. His Honour considered the matters identified by Gummow, Hayne and Heydon JJ in Stuart v Kirkland-Veenstra. He considered the purpose to be served by the exercise of the power, and whether the patient was a beneficiary of the power. He found that the psychiatrist and the hospital exercised a high level of control and the patient exhibited a high level of vulnerability. Spigelman CJ said that although there was an option of voluntary admission, on the evidence, there was no basis upon which the psychiatrist and the hospital could assume that the patient could look after his own interests in seeking a voluntary admission or requesting a discharge. Finally, the Chief Justice considered coherence, and he concluded that that was not a factor which was entitled to significant weight. His Honour reached that conclusion because the review process in the statutory scheme meant that the possibility of defensive medicine impinging on the performance of the statutory scheme was unlikely. His Honour said (at [41]): One of the reviewing practitioners or the Magistrate should be able to resist the institutional imperative of minimising the risk of civil action.
Santow JA agreed with Spigelman CJ’s “powerfully reasoned exposition” of the principles for determining the scope of liability of statutory authorities for negligence (at [325]). However, his Honour disagreed with the application of those principles to the facts. His Honour said that the statute did not generate a common law duty, but that that was not the end of the matter because there was a pre-existing general law duty (at [366]). After examining the relevant factors, Santow JA said that there was no duty with respect to non-physical harm, essentially based on loss of liberty. He left open the question whether there was a duty in the case of serious physical harm suffered by a third party (at [369]).
The primary judge discussed the decision in Presland and, in particular, discussed the reasons for judgment of Spigelman CJ (at [885]-[909]). Her Honour concluded (at [909]) that a common law duty of care arising out of the statutory power conferred by the Mental Health Act may apply to a similar range of injuries “to those assumed to be covered in Presland”.
With respect to the trial judge, we do not think that the scope of any duty of care owed by ACTMH to Mr Crowley early in the morning on 11 December 2001 included a duty to exercise the power in subs 37(2) of the Mental Health Act. It is not suggested that the power had been engaged on the previous evening. We are disposed to think that ACTMH owed a duty of care to Mr Crowley as a result of the events which transpired on the evening of 10 December 2001 to, in effect, follow up on the matters discussed on the previous evening with Mr Crowley or his family. We realise that that describes the scope of the duty at a high level of generality. However, we do not think that the scope of the duty can be expressed in more precise terms. In saying this, we acknowledge that the scope of the duty could have been enlarged by events on 11 December 2001. However, as it happened, that did not occur. There was an effective “follow up” when Mr Keith Crowley spoke by telephone to Ms Williams on the morning of 11 December 2001. We do not think that the scope of the duty can be defined in terms of a duty to carry out an assessment. For example, Mr Crowley may have gone to hospital voluntarily and in those circumstances there would have been no duty to carry out an assessment under subs 37(2) of the Mental Health Act. Was there a breach of duty by ACTMH?
If the ACT did owe Mr Crowley a duty of care, in our opinion her Honour erred in deciding it had been breached.
At the trial, both Mr Crowley and the police alleged that ACTMH had been negligent. Mr Crowley did not call any medical evidence in support of his case against ACTMH, but the police did and Mr Crowley relied on that evidence.
The police called Dr Jonathon Phillips who is a consultant psychiatrist. He prepared two reports (dated 18 July 2006 and 15 May 2008 respectively) in which he addressed the particulars of negligence alleged against ACTMH. For the purposes of the appeal, attention can be confined to the live issues (see [260] above). For example, Dr Phillips criticised the Crisis Team’s decision not to assess Mr Crowley on the morning of 11 December 2001, describing it in various ways, including an error of judgment, an unwise decision, and an inappropriate judgment. He also said that he was critical of the departure from Mr Wells’s “treatment plan”.
ACTMH called medical evidence in support of its case that it had not been negligent. It called Dr James Telfer who is also a consultant psychiatrist. He prepared two reports (dated 21 April 2008 and 23 February 2009 respectively), and he also addressed the conduct of ACTMH. For example, in relation to the fact that the Crisis Team did not assess Mr Crowley on the morning of 11 December 2001, Dr Telfer said that it was reasonable to allow Mr Crowley’s parents to attempt to have him voluntarily admitted later that day.
Both medical experts were eminently qualified in the area of psychiatry. Both were cross-examined at length.
As we read the trial judge’s reasons, her Honour did not express a general preference for one witness over the other. She seems to have been more critical of aspects of Dr Telfer’s evidence, for example, of certain assumptions he made, than she was of Dr Phillips’ evidence. We doubt that Dr Telfer implicitly accepted in cross-examination that the Crisis Team should have visited the Crowley family on the morning of 11 December 2001 (see the trial judge’s reasons at [983]) but, even if he did, there are important matters to bear in mind when considering the weight to be accorded to the expert evidence.
First, the question of whether there is a duty of care and the scope of the duty is a question of law for the Court. The determination of the scope of the duty of care is in turn clearly critical to whether or not there has been a breach of duty. Secondly, the question of breach or no breach is also ultimately a question for the Court. Thirdly, ACTMH may be described as a publicly-funded mental health provider with certain statutory powers. But those statutory powers are subject to clear limitations. The circumstances of this case are somewhat unusual, and the issues of breach involved fine issues of both timing and judgment. It is not clear to us that there was a generally accepted practice for publicly-funded mental health providers, or whether there was such a practice in the particular factual circumstances of this case. The trial judge clearly shared some of these reservations when she said that there was a question in her mind about whether the running of publicly funded mental health services was itself a field of “specialised knowledge” (at [60]). A little later in the same passage her Honour said: 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.
The task for the trial judge and for this Court on appeal is to apply the approach taken in Wyong Shire Council v Shirt, sometimes referred to as the “Shirt calculus”. The relevant factors are a consideration of the magnitude of the risk and the degree of the probability of its occurrence, as well as the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have (at 47-48 per Mason J (as his Honour then was)). Aspects of the test formulated in Wyong Shire Council v Shirt have been criticised (see, for instance, New South Wales v Fahy at [213]–[225] per Callinan and Heydon JJ), but the matters to be considered in determining the reasonable person’s response to the risk remain the same.
In applying the test, it is important to bear in mind that the assessment is a prospective one: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126]-[129] per Hayne J; New South Wales v Fahy at [56]-[58] per Gummow and Hayne JJ.
In our opinion, ACTMH did not breach any duty owed to Mr Crowley by not having someone from the Crisis Team attend the Crowley home on the Tuesday morning. In the first place, it is not entirely correct to say that this was Mr Wells’s plan. As Dr Telfer pointed out, Mr Wells added a rider. That was that Mr Keith Crowley should be telephoned first. Mr Keith Crowley and the Crisis Team spoke by telephone early in the morning. The Team then made a reasoned judgment upon the information given to it by Mr Keith Crowley that the assessment could be delayed so that Mr Crowley could go to Calvary voluntarily if possible.
In our opinion, Ms Williams was entitled to rely upon Mr Keith Crowley’s statement that Mr Crowley would go voluntarily to CalvaryHospital. She was told that Mr Crowley’s condition had not deteriorated and that he had apparently agreed, or was not disagreeing, to an admission to CalvaryHospital. While it is true that the Crisis Team had knowledge of how Mr Crowley’s symptoms might develop, that is but one matter to be considered. We do not think that, in all the circumstances and in the absence of any further information, it was unreasonable for the Crisis Team not to attend upon Mr Crowley on the Tuesday morning.
If Mr Crowley were to admit himself voluntarily to CalvaryHospital, which was an approved health facility, the preconditions in subs 37(2) of the Mental Health Act to the mental health officer exercising the power to apprehend the person could not be met. A mental health officer can only apprehend a person who is mentally dysfunctional or mentally ill if that person has refused to receive the treatment or care that the person needed. ACTMH was told that Mr Crowley would submit to treatment or care and, in those circumstances, ACTMH could not have apprehended him and taken him to an approved health facility. In our opinion, the ACT did not breach any duty owed to Mr Crowley by failing to further assess him after receiving the advice from his father.
The ground upon which the ACT was held liable for Mr Morris’s conduct is by no means clear. It seems to us that, in theory, the possibilities are as follows: (1) Mr Morris owed a duty of care to the plaintiff and breached it. The ACT was liable on the basis of vicarious liability. The first point to note about this suggested basis of liability is that it is arguable that vicarious liability was not pleaded against the ACT. Vicarious liability was pleaded against the police in relation to the conduct of Senior Constables Pitkethly and Willis. This would not be decisive if a case of vicarious liability had been run at trial. It appears not to have been, and we can find only one reference to Mr Morris owing a duty of care to the plaintiff in the trial judge’s reasons (at [1009]). (2) Plainly, Mr Morris was not the controlling mind of the ACT or even of one of its administrative units in the sense referred to in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (see also Hamilton v Whitehead (1988) 166 CLR 121), and no statutory provision whereby Mr Morris’s knowledge was to be attributed to the ACT was either identified or relied upon. The knowledge of an agent or servant might, in a particular case, and for a particular purpose, be attributed to a corporate or statutory entity (here we are dealing with a government entity), but that is not how the primary judge reasoned to her conclusion and, in fact, her Honour’s conclusion that Mr Morris had not breached any duty – whether owed by him or by the ACT – by not informing the Crisis Team of his observations of Mr Crowley would seem to be inconsistent with such a line of reasoning. (3) Mr Morris was “affected” by the duty of care ACTMH owed to Mr Crowley. What is meant by this is not entirely clear to us. The trial judge said (at [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 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 organisation or arrangements that could that could exclude him from such a duty, I am satisfied that this is not such a case.
It is clear enough that what the trial judge found was that Mr Morris breached the ACT’s duty of care to Mr Crowley.
The essence of the trial judge’s reasoning was that the ACT’s duty of care encompassed a duty on the part of its employees 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.
A number of points may be made about this reasoning. First, as a general comment, the approach seems to define the duty and its scope in terms of the particular breach found by the trial judge. This suggests the impermissible use of hindsight. Secondly, it presupposes that Mr Morris had a duty to act, despite the fact that he was only acquainted with Mr Crowley through his relationship with his brother. Thirdly, for reasons we have given, we do not think Mr Crowley was a patient of ACTMH on 11 December 2001. Fourthly, there is no reference in the above formulation to a report being made within a particular period. Presumably, having regard to her Honour’s finding of breach, the report was to be made promptly, if not immediately. Finally, it is clear enough, we think, that the trial judge’s approach was to consider Mr Morris’s conduct by reference to his position as a rehabilitation officer (see [1008]) and with the knowledge that he had. In other words, there is no suggestion in the trial judge’s reasons that all of ACTMH’s knowledge was to be attributed to Mr Morris.
The trial judge addressed the two particulars of negligence in relation to the ACT and Mr Morris and found that Mr Morris breached the ACT’s duty in not passing on his observations of Mr Crowley to the Crowley family, but that he did not breach the ACT’s duty in not passing on his observations to the Crisis Team. The first finding is the subject of the appeal by the ACT and the second is the subject of Mr Crowley’s notice of contention.
As to both matters, the trial judge had evidence from Dr Phillips and Dr Telfer. For example, in his first written report Dr Phillips said that Mr Morris would face moderate criticism in delaying the process of reporting to the Crisis Team. The trial judge must be taken to have rejected that evidence. For reasons set out above (at [399]), she was entitled to take that approach. The points made earlier are even stronger in this area where we think there must be a real question as to whether there would be said to be a generally accepted practice.
The trial judge’s reasons for rejecting the particular of negligence which is the subject of Mr Crowley’s notice of contention were as follows (at [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:

It is not clear upon what basis her Honour found that an admission had been planned for Mr Crowley “that morning”. Her Honour may have inferred that from the fact that an assessment was to take place in the morning on her interpretation of the evidence referred to in [128] above. In any event, there is a tension in her Honour’s reasons in finding no breach in not urgently reporting Mr Crowley’s behaviour to the Crisis Team but a breach in not speaking to the Crowley family. There would not appear to be any difference in terms of expense, difficulty or inconvenience. It might be said that a report to the Crowley family was more immediate than a report to the Crisis Team. Nevertheless, it seems to us that her Honour’s reasons as set out in the above passage are correct and that the notice of contention must be dismissed. For the same reasons we do not think the ACT was negligent because Mr Morris did not report his observations of Mr Crowley to the Crowley family. As we have already observed, the question of liability must be approached prospectively and not with the wisdom of hindsight. Having regard to what Mr Morris saw and knew it is a counsel of perfection to suggest that he acted unreasonably in not speaking immediately to Mr Crowley’s parents. Causation and ACTMH
The ACT appealed on the issue of causation. In other words, it contended that even if it owed a duty of care to Mr Crowley and even if it acted in breach of that duty in the respects identified by her Honour, the breaches identified by her Honour did not cause the loss and damage sustained by Mr Crowley.
The breaches of duty by the ACT identified by her Honour are set out in paragraph 258 above. As we have said, Mr Crowley does not seek to support the third breach or particular of breach.
Mr Crowley, as we have said, has filed and served a notice of contention contending that the alleged breach or particular of breach rejected by her Honour, that is, Mr Morris’ failure to contact the Crisis Team urgently about his observations of Mr Crowley ought be reversed by this Court. In addition, he asks this Court to reverse her Honour’s finding that, even if a breach, it was not causative of his injuries.
In this case, causation involves a number of complex issues. In order to consider it we would have to make a number of assumptions contrary to our earlier conclusions not only concerning Mr Crowley’s case against the ACT, but also concerning his case against the police. We do not think that such an exercise would be useful in the circumstances.
In our opinion, the ACT’s appeal should be allowed and the judgment entered against it set aside. Instead, there should be an order there be judgment for the ACT against the plaintiff. Conclusions
Both appeals must be allowed and the orders made by the trial judge on 27 May 2011 and 10 June 2011 set aside. In lieu thereof there should be an order that judgment be entered for each defendant against the plaintiff. The plaintiff should pay the costs of trial of each defendant and, as first respondent in each appeal, the costs of the appellant or appellants.

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

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