In the Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52 the ACT Court of Appeal overturned a verdict of negligence against the Territory over the response of the ACT Mental Health Service and the Australian Federal Police, which provides policing in the ACT to a mentally ill man who was suffering an extreme episode of his illness.

The end of the story is that on 11 December 2001 Senior Constable Pitkethly shot Mr Crowley leaving him with permanent quadriplegia and with the associated traumas and costs that must involve both for him and his family.   Mr Crowley sued the ACT and Federal governments (as the Federal government provides the AFP) and was successful at trial and received an award of $8 million.  On appeal that decision was overturned, the Court of Appeal finding that there was no negligence and no liability.

The longer story is that Mr Crowley had a history of mental illness.  On the night before he was shot his father had rung ACT Mental Health because of concerns about his son’s behaviour.  A clinician attended the home and recommended that Mr Crowley be admitted to hospital but it was agreed that he would be managed at home overnight and the family would try to bring him in the next day.  It was specifically noted that the family feared police involvement would aggravate the situation and they would prefer to bring him to hospital rather than involve the police as would be required for an involuntary admission.   There was a plan for the mental health crisis team to ring back to arrange a further assessment in the morning.

The next morning Mr Crowley’s father rang the mental health team to advise them his son had had a good night and involuntary admission was not required as he thought he would be able to bring his son to hospital to receive the necessary care.

Sometime later Mr Morris, an employee of the mental health service attended the home for other reasons, this person was not a clinician.  He observed Mr Crowley outside his home and spoke to Mr Crowley’s brother who said the family were aware of Mr Crowley’s behaviour and they had been in contact with the crisis team.  Mr Morris did not go and speak to Mr Crowley’s parents to advise them that Mr Crowley was outside the home or that he was behaving in an inappropriate way.   Shortly after Mr Crowley left the home and walked around the streets of Canberra.

Mr Crowley was armed with a sword and a ‘kendo’ stick.   A motorcycle postman noticed that some logs had been placed across the road.  He stopped to remove then

… 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 [he]thought was a kendo stick, saying that he was God and Jesus.

He said Mr Crowley came from [an address] holding a sword and making threatening gestures. [He] said that Mr Crowley told him he would “take his fucking head off” if he moved the logs on the road. That prompted [him] to telephone the police.

Mr Crowley went to a former family home

… which was a house occupied by an 82 year old woman … [who] 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, [she]  was frightened and distressed. [She] told SC Pitkethly that a man had tried to bash his way into her house through her screen door using a large implement.

Mr Crowley also approached a tradesman who was working in the area.  The tradesman said

… he heard a man shouting and yelling at the rear of his work van. The man approached him waving a stick claiming that he was Jesus Christ, and demanded that [he] repent his sins. [The tradesman] told the man to “bugger off”, as a result of which the man poked him with the stick saying that he must repent his sins. [He] attempted to ignore the man and walked away, but was thereupon struck across the kidney. He then exclaimed, “Jesus Christ, you can’t do things like that. You just can’t walk around hitting people”… [T]he man [Mr Crowley] calmed down somewhat, but he [the tradesman] added that he was not prepared to take his eye off [Mr Crowley] . He said he backed away from the man [Mr Crowley] and put his hands in the air saying, “I repent my sins”. The man [Mr Crowley] reacted by claiming again that he was Jesus Christ and that he could “take you out as quickly as I made you”.

This incident took five to 15 minutes and the victim “thought the man wanted to take a life.”

Police, including the Operations Support Group (OSG), begun a search to locate Mr Crowley.  SC Pitkethly was travelling with SC Willis.  They had not previously worked together.  The postman who had tried to remove the logs again saw Mr Crowley and rang police to direct them to his location.  First on the scene were Constables Pitkethly and Willis.   SC Pitkethly stopped the police car and Mr Crowley approached the car, according to witness apparently to surrender to them, but:

[Two witnesses, the motorcycle postman and the tradesman both of whom had been previously threatened] 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”.

[Witness 1, the motorcycle postman] 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”. [Witness 2, the tradesman’s] evidence was to similar effect; that the police officers screamed at Mr Crowley.

The trial judge preferred the evidence of [the witnesses] to that of the two officers and found:

(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. [The tradesman] 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 [the tradesman] described as “forceful”. [The postman] 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 [the postman] 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…

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.

So where was the negligence?  The trial judge found that the police officers and the police service owed a duty of care to Mr Crowley and they were negligent in that the two officers did not, whilst travelling in their car, discuss what they would do if and when they located Mr Crowley, when they did locate him they got out of their police car rather than waiting for further officers and they failed “to attempt any real negotiation with Mr Crowley, but instead adopt[ed] an aggressive and threatening manner”.

The mental health service were negligent for failing to follow up on the plan to have Mr Crowley admitted to hospital, for the employee (who was not a clinician) for failing to raise his concerns with Mr Crowley Snr and for not giving police more information when the police contacted them about an apparently mentally ill man on the threatening people on the street.

The Court of Appeal rejected all findings of negligence.

First the court found that there was no duty of care owed to Mr Crowley by the police.  The police obligation was to the public at large including the public that was clearly at risk from Mr Crowley’s aggressive behaviour.    In Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59 (“Hill”) it was held that the duties of the police:

… 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.

This English case was affirmed in a number of Australian cases including Sullivan v Moody, where the Court said that if police owed duties to individuals that they were investigated that:

… would give rise to inconsistent obligations … 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.

According to the Court of Appeal this was 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.

Even if there was a duty there was no negligence.  The allegation that they were negligent in failing to develop a plan or conduct a risk assessment before locating Mr Crowley but such a plan was impossible to formulate as they did not know what they would find.

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.

As for the finding that the police were negligent in getting out of their car and not attempting a more conciliatory approach the Court of Appeal said:

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 [the witnesses] 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.

The police really did not have an option.  Others such as the postman and the tradesman may have adopted a conciliatory approach and so de-scaled the incidents they were involved in but they did not have an obligation to protect the general public from harm, as the police did.

The Court of Appeal also found there was no negligence by the mental health service.  Although the health service had conducted an assessment the night before they were not in a doctor/patient relationship as they were not providing treatment to Mr Crowley.   There may have been a duty to follow up on that assessment but that was met when Mr Crowley Snr rang the crisis team on the morning of the 11th and said that he did not think intervention and involuntary detention was required.   There was no negligence in relying on Mr Crowley Snr’s assessment of the situation.  With respect to Mr Morris’ failure to report what he observed to Mr Crowley Snr the court said:

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.

Discussion

This case was indeed tragic, there is no doubt that Mr Crowley was mentally ill and not criminally responsible for his conduct, but the power of police (and others) to use force to defend themselves and others is not dependent upon the threat being criminal.   The mentally ill and the young can also be dangerous even if they are not and could not be criminally responsible.

It was clear that Mr Crowley was posing a threat.  He had threatened at least three people and at the time he was shot, had been sprayed with capsicum, had beaten one police officer and knocked the baton out of the hands of another and was continuing to threaten the life of SC Pitkethly.  We may have sympathy for Mr Crowley’s illness but that did not mean that a police officer had to face a real threat to his life.

This case has attracted considerable criticism.  In City News (a free Canberra newspaper) of 7 February, Robert Macklin wrote an article ‘Scales of justice lose balance’ (http://issuu.com/citynews/docs/130207_citynews, p 13).  He argues that the judgement represents a parting between law and common sense.  He says:

It is by no means the first time that we’ve confronted the problem of policemen [sic] using a deadly firearm against a mentally disturbed person wielding a stick or a knife.

With respect and to use the words of the Court of Appeal :

… 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.

Mr Crowley had threatened at least three other people with death and had knocked one officer to the ground and effectively disarmed the other.  He was not simply ‘wielding a stick or a knife’ but posing a clear threat to the police and the community at large.  It should be noted that the plaintiff’s counsel also conceded that the use of the firearm in the circumstances was not ‘negligent’ and, presumably justified by the law of self defence.

Macklin says we should not blame the police officers but should:

… blame the AFP for not having trained their officers to handle that response and for not providing them with an alternative means to subdue Jonathon Crowley.  It is ridiculous – and reprehensible – that their options take a quantum leap from the relatively harmless capsicum spray to a deadly firearm. (And since the Taser seems t have problems of its own when used by police against the mentally ill, the electric shocker is clearly not the answer).

The AFP – or the Attorney-General’s Department – should commission the CSIRO to come up with a range of options – from sticky nets designed to entangle the aggressors to chemical darts to put them instantly to sleep.

It seems these officers were trained, they demanded Mr Crowley to put down his weapon, they used capsicum spray that, through no fault of theirs was ineffective, they did not then take a quantum leap to a firearm, instead SC Pikethly used, again without effect, his baton, before drawing his firearm and using it, as the law allows, to protect his own life.

The suggestion that the AFP should commission agencies to design new weapons is silly.  The AFP has as its core role the provision of policing services, not scientific research and development.  They can and should consider the use of new technology as it becomes available but, from a legal perspective, they cannot be liable for not using that which does not exist or for trying to invent it.  Nor can they be liable over decisions on how to allocate their budget between way highway patrol or developing new weapons.

The AFP did not have a policy to say ‘if a mentally ill person wont surrender, spray them with capsicum spray but if that doesn’t work, shoot them’; it was clear the police here were trying to deal with a situation that turned very dangerous.  They are given guns to protect themselves and others and it appears that the use of the firearm was justified here.  The fact that Mr Crowley was mentally ill, rather than bent on a fulfilling a criminal intention, was irrelevant at the time that SC Pikethly used his gun.

We are told that that case is subject of an application for leave to appeal to the High Court of Australia.  Maklin says:

We must hope that our final arbiter is able to cut through the maze of legal sophistry to find a just outcome.  But until then it really falls to the community – that’s us – to give them a helping hand to seem them through.

Issues on the duties that police and other emergency service members owe are not mere sophistry.  They represent the law and it is the law to allow them to perform their functions for the public good.   The duty, if any, was to the broad community that were at risk from Mr Crowley’s dangerous, albeit innocent, behaviour.   If we want police to put on their uniform and go out to deal with these situations in a way that no one else has to, we have to recognise that their duty is to all of us and sometimes that involves doing damage.

The community is helping Mr Crowley.   As a community we pay for health services through the provision of social welfare benefits and free universal health care.  This is not the same as a person could buy if they had $8 million but that amount too would be paid by the community; that is ‘us’.  Whether it comes out of consolidated revenue or government insurance schemes, either way it is the community that ultimately pays.

Articles such as those by Macklin understate the gravity of the situation as reported by the Court of Appeal.  Mr Crowley Snr did not take steps to take his son to hospital as he said he would, the police did not go out to shoot him, but to protect the public.  The situation became critical and a shot was fired.  The outcome was tragic for everyone and one can only have sympathy for the Crowley’s but also for the police who, I’m sure, have not found it easy to either shoot someone, or go through the process.  That the case was tragic does not however mean there was negligence or that the State should pay $8 million for events it did not cause, but had to deal with.

Postscript

An interesting postscript to this case is that Higgins CJ relied on decision of the trial judge in this case when he found that the fire fighting authorities owed  a duty of care in his decision in West v NSW (the litigation from the Canberra 2003 fires).  The decision in West’s case and the decision by the Court of Appeal in this case, holding that the trial judge was wrong to find a duty of care, were handed down on the same day, the 17th December 2012.

A note on the witnesses

Courts are public institutions, open to the public and the judgements are made publicly available online. Notwithstanding this going to court is a tough process and people who,  by chance, end up as witnesses to events find themselves involved in a lengthy and unpleasant process.  To avoid one more trauma, I’ve tried to remove the names of the witnesses and various addresses from the quotes above.  I did not think those details were necessary to report the important issues and I want to avoid any action that would discourage people from performing the vital civil task of giving evidence when they have relevant evidence to give.

Michael Eburn

13 January.