Crowley v The Commonwealth of Australia & Ors

[2013] HCATrans 128

[2013] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C1 of 2013

B e t w e e n -

JONATHON ANTHONY CROWLEY

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

GLENN PITKETHLY

Third Respondent

Office of the Registry
  No C2 of 2013

B e t w e e n -

JONATHON ANTHONY CROWLEY

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

GLENN PITKETHLY

Third Respondent

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 JUNE 2013, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR B.J. GROSS, QC:   I appear with MR B.J.E. COLLAERY for the applicant.  (instructed by Collaery Lawyers)

MR P.C.B. SEMMLER, QC:   May it please the Court, I appear with my learned friend, MR G.A. STRETTON, SC, for the first and third respondents.  (instructed by Australian Government Solicitor)

MR J.E. MACONACHIE, QC:   If your Honours please, I appear with MR J.D. WATTS for the second respondent, the Australian Capital Territory.  (instructed by Australian Capital Territory Government Solicitor)

HAYNE J:   Yes, Mr Gross.

MR GROSS:   Your Honours, in relation to the question of duty of care owed by the police, although police officers are generally or ordinarily not liable for negligence in the investigation and prevention of crime, they should not, we submit, be totally exempted in all circumstances.  Secondly, we say that police do not enjoy a blanket immunity from liability in negligence for causing personal injury and for a person who may possibly be suspected of a criminal offence.  Thirdly, we say it is legal error to contend that regardless of the circumstances, a duty of care can never be owed to a person under investigation or suspicion regarding possible or potential offences to take reasonable care for their physical safety.

Your Honours, in the present case, the trial judge relied upon the Victorian decisions of Zalewski and Richards.  Her Honour found that the injury resulted from specifically identified antecedent negligence by the police and that the two officers acted unreasonably and not in accordance with their operational training in the circumstances.  In doing so, as the trial judge pointed out, she found, in effect, the facts were the same and the analysis was the same as was adopted by the Victorian Court of Appeal in Zalewski.

HAYNE J:   Put as shortly as you can, what exactly was the want of reasonable care that you would assign to the police officers?

MR GROSS:   Abandoning a common intent that they would deal with the plaintiff, as it were, in a negotiating mode and instead what they did was they abandoned that approach as soon as they arrived and immediately confronted him in a hostile manner which precipitated a violent reaction by him.  That involved departure from first of all what Sergeant Morris had indicated should be done before they left; secondly, their operational training; thirdly, the various protocols; and, fourthly, their own understanding as to what they were expected to do faced with that sort of risk.

So it was the steps taken antecedent to an arrest situation that involved failures which are properly judged by the laws of negligence and particularly where it involved abandoning the operational training that they had received and which plainly governed how they ought to have behaved.

BELL J:   Mr Gross, the Court of Appeal considered that the trial judge, I think, was in error in the approach that she took to the evidence of the witnesses who considered that there was the appearance that the plaintiff was surrendering at the point that the police got out of the car.  Now, on the view of the facts that the Court of Appeal took, there was then a matter of seconds, was there not?

MR GROSS:   Your Honour, on the findings made, as soon as the police car arrived they immediately both jumped out of the car – whether that counts as seconds or something shorter, but it was an instantaneous response which was totally inappropriate if, in fact, as was noted by the witnesses and found, that he appeared to maintain a surrendering posture.  If, in fact, someone was in that type of posture you do not inflame unnecessarily the situation by going into, in effect, confrontational combat mode, aiming spray guns at him and yelling loudly at him to drop his weapon and get to the ground.

So in a space of seconds they had gone totally contrary to training and plan and acted in a manner where the situation did not require that type of violent challenging approach.  So that, yes, it was a matter of seconds and, of course, this was in a context where the remaining police officers who were meant to assist in the overall negotiation process arrived, in effect, within seconds of the shooting. 

The shooting occurred 42 seconds after the police first sighted him and on the findings of the trial judge, in effect, within a minute of the initial call identifying where he was the other police officers had arrived.  So it was only a matter – I suppose it is 18 seconds before the rest of the police are there so, although the times are short, there was no need to, as it were, create a dangerous situation where only a few extra seconds would give them all the resources they needed and of course a more reasonable approach would have avoided precipitating a physical battle with an armed offender rather than what should have occurred.

BELL J:   The more reasonable approach was to do what?

MR GROSS:   A more reasonable approach was – well, the trial judge said basically to wait for the other officers but even allowing for the criticisms of that, certainly on getting out of the car, to not go into combative mode but basically to, as it were, keep him occupied but without in a dramatic fashion of the sort seen in old TV procedural shows, challenging him in effect to do things, particularly when they are challenging someone who because of his mental state must be unpredictable and who is armed with a weapon.  So the abandonment of training in that short space of time involved what should have been a planned approach becoming a totally unplanned approach with catastrophic results.

HAYNE J:   A planned approach of what?

MR GROSS:   Of basically dealing with him – to use the expressions used in the cases – “softly, softly”, “slowly, slowly”, “negotiate”, “communicate”, “open hands approach” and the like, so that basically he could be effectively dealt with in a manner which was safe to all concerned, including the police officers, the plaintiff and anyone else.

HAYNE J:   But it is the position, is it, now, that an essential requirement for success of your side would be to demonstrate a want of reasonable care in the circumstances that we have just been discussing?

MR GROSS:   Yes, your Honour.  We realise that is a demanding test and we do acknowledge that police officers are often faced with exigent circumstances where on‑the‑spot judgments have to be made and in many ways the same as doctors, for example, but there is no basis for saying that in all circumstances, regardless of what has occurred, there is no capacity to find failure to take reasonable care in the circumstances.

HAYNE J:   The purpose for my question is that the case would become a case for leave then on the basis of the interests of justice rather than on the basis of important questions of principle.  Yes, I understand what you say about the questions of duty.  They may, they may not - and no doubt your opponents would have something to say about it – they may, they may not be important or undetermined questions of principle but breach is an essential element and your case at least includes the proposition that the Court of Appeal get it wrong about breach.

MR GROSS:   Yes, your Honour, and we would submit that dealing with the question of breach is not a difficult one because the – what I call the police procedural experts, plus the documentation, plus the concessions made in cross‑examination and in interviews by the police officers made fairly clear as to how you are meant to deal with that type of situation and what they did was totally contrary to all of those procedures.

The Court of Appeal took the approach, well, when they turn up they are entitled to basically order him to put his weapon down and get on the ground, et cetera, so that the Court of Appeal ignored all that evidence as to what the relevant standard of care is and, your Honours, we submit that the propositions as to what should have been done and compare them with the plain fact of what did occur there is such a disparity between the two that the breach as found by the trial judge must be upheld.

Your Honours, we would submit that there is a conflict between the jurisdictions.  The Victorian cases of Zalewski and Richards – and Richards, I think 2010 confirmed the correctness of Zalewski.  They are in contrast to what the New South Wales Court of Appeal has said in Klein although Justice Campbell in Tyszyk basically took a different approach and we submit that this type of question is one which has occupied the highest appeal courts in England and Canada and it is appropriate that that general question be dealt with in terms of what are the limits and exceptions in relation to the scope of the duty of care which can arise in such circumstances.

But, your Honours, we would certainly submit that the breach of duty issue, in terms of particular injustice, is evident.  Your Honours, the Court of Appeal basically treated the delay by the trial judge as warranting, in effect, a fresh determination by the Court of Appeal and where any findings of fact made by the trial judge, having heard certain witnesses, should be discarded completely.  Normally, when there is a delay of this measure, there is a requirement to carefully scrutinise the judgment, and there is an obligation by the judge to set out comprehensively the reasons for various findings that are made, so as to answer any concerns that the matter may not have been properly considered or proper reasons given.

Now, the Court of Appeal basically having discarded the trial judge’s findings altogether then embarked upon picking and choosing between various species of written and oral evidence as to what occurred, and including determining which witnesses should be believed on which particular point.  Normally, when there is a delay like this ‑ ‑ ‑

HAYNE J:   But what is the alternative, send it back for retrial?

MR GROSS:   Well, not looking - but normally a court of appeal is disabled from doing that picking and choosing between the oral and written evidence and particularly where it is contrary to findings that have been made by the judge which are obviously credibility laden.

BELL J:   But the Court of Appeal pointed to instances where the trial judge’s factual findings presented difficulties as with a statement by a witness who gave evidence and who was not challenged on an aspect of his evidence, and the Court of Appeal preferred a statement of another witness that was untested.

MR GROSS:   Your Honours, the proposition that that was not tested in cross‑examination or challenged is just wrong.  It is notable that the Court of Appeal basically indicated they would not go into the detail of matters unless they really had to, but some of the dismissing of witnesses’ versions or ignoring days and days of cross‑examination was not appropriate, and so picking one answer against another answer on the basis that one was sworn many years after the event and the other one was written, or that the witness was not really cross‑examined heavily on this particular point is just not a valid way they could look at the matter, but it seems that the Court of Appeal ignored the cross‑examinations, and plainly the trial judge had regard to the cross‑examinations as part of the overall pattern of determining the facts.

Your Honours, in relation to the second respondent, the ACT Mental Health, we submit that there was plain error there in relation to duty of care and also in relation to breach.  In relation to duty of care, your Honours – these are covered in the written submissions, but can I just briefly say this?  The Court of Appeal found there was no treatment relationship and that finding cannot stand against all the clear evidence which we have summarised in our summary of argument as to what was done by way of management of the patient, advice given, assessments made, histories taken and the like, and various courses of action recommended. 

Your Honours, the Court of Appeal fell into the error of finding that the only function was the exercise of the statutory power under section 37(2) of detention of the person.  But that was a stage which they had not yet reached but before that there was plainly a treatment relationship. 

In relation to breach, once again there was the discarding by the Court of Appeal of conclusions which were validly expressed by both Dr Phillips and Dr Telfer as to what the requisite standard of care would be for the health facility in those circumstances and for Mr Jason Morris in terms of his reporting requirements and, your Honours, there was ‑ ‑ ‑

HAYNE J:   Again, could you epitomise what you say is the breach?

MR GROSS:   The breach in relation to the treatment regime was the failure to follow up the next morning, as soon as possible as had been contemplated, on going down to further assess the plaintiff at his home.  That well‑considered clinical judgment was simply abandoned because of a phone call from the father, where they were leaving it, in effect, to the father to make a decision about matters when, in fact, he was just an uninformed lay person and where the psychiatrist ‑ ‑ ‑

HAYNE J:   I think that is rather diminishing the role of the father - “uninformed lay person”.

MR GROSS:   Uninformed lay person in the context of determining whether there had been deterioration and in the context of making a judgment as to whether he needed assessment.  So that is not to criticise the father.  The second aspect was the failure of the son – if I could have a few more seconds – the failure of Jason Morris to report upon the dangerous situation he had observed and there was plainly vicarious liability for that.

The Court of Appeal said vicarious liability was not pleaded.  It was pleaded.  It is there in the statement of claim and the psychiatric experts, Dr Phillips and Dr Telfer, both confirmed that having regard to the level of training which he had, one would expect him to be able to report such conduct to the appropriate persons.  Thank you, your Honour. 

HAYNE J:   Thank you, Mr Gross.  Yes, Mr Semmler.

MR SEMMLER:   Your Honours, not only is there no important question of legal principle arising in this case so far as the police are concerned, but there is no question of injustice and that is because, your Honours, the decision of the Court of Appeal on the breach issue was correct.  Even if, your Honours, contrary to what this Court had to say in Sullivan v Moody and in Tame, one assumes for the moment there was a duty of care on the police, the reality is that there was no breach in the seconds that the police had to respond to the situation that they encountered on Doyle Terrace. 

Your Honour Justice Bell asked Mr Gross or suggested to Mr Gross that it was a matter of seconds and indeed it was.  Could I take your Honours just briefly to appeal book number 1 at page 131 at paragraph 392 of her Honour’s judgment where her Honour says that:

Jonathan moved towards the police car after it stopped and as the police officers got out of the car.  I am satisfied that the period between when the car stopped and when the OC spray was first used was only a few seconds, and that the actions of Jonathan and the police officers were effectively simultaneous –

Now, your Honours have to consider that finding in the context that her Honour did not find a duty until the police car came to a stop.  So they have arrived on Doyle Terrace, there is no duty of care before that, they come to a stop, and simultaneously with them getting out of the vehicle the applicant for special leave is bearing down upon them with a weapon.  He is only metres away from them and the movements are as one.  Your Honours, because of that ‑ ‑ ‑

HAYNE J:   Well, the hypothesis is that the relevant duty is a duty to execute their powers with reasonable care.

MR SEMMLER:   Yes, your Honour, that is broadly correct, but your Honour Justice Hayne, in particular, has emphasised in many cases that one needs to define or go to the content of the duty.  When it comes to that, attempting – when your Honour asked my learned friend can you epitomise what you say they did wrong, that is, to articulate what is the content of the duty, he cannot do it with any precision.  Inevitably, all he said was, well, they were meant to deal with him “softly, softly”, in a non‑confrontational way ‑ ‑ ‑

HAYNE J:   Well, I understand the case against you to be that the police officers either had or should have treated themselves as having a choice about the way they approached the plaintiff.

MR SEMMLER:   Yes, and the reality is, without any criticism of Mr Crowley himself, circumstances did not permit them the luxury of the kind of analysis that my learned friend suggests and, certainly, not the luxury of the kind of analysis, with respect to her Honour, that the trial judge thought they should have undertaken.  Her Honour went so far as to say that when this happened, when the duty is engaged, the vehicle comes to a stop, the man is only a few metres from the front of the car and he walks towards them with his weapon raised, her Honour says, they had the luxury of 30 seconds, they should have taken 30 seconds to discuss between themselves what they were going to do, what is the best way to approach this man.  They did not have that time.

That is why I say, your Honours, that there is no injustice in this case because the exigencies of the situation confronting the police ‑ as is often the case when police are dealing with armed suspects ‑ the exigencies were such that they did not have the time to enter into this considered debate about what is the “softly, softly” approach to this man.  So that they got out of the vehicle as he is bearing down on them, and after that my learned friend says, well, they should not have adopted a combative approach, but as the Court of Appeal said, they had no choice.

He was bearing down on them, he raised the weapon, and then shortly after that he hit one of the policemen so heavily that he rolled up in a ball on the side of the road in the foetal position because he thought he was going to be killed.  The other one then retreats 10 metres behind the vehicle and then eventually is forced to shoot the applicant.  They had no time.  The exigencies of the situation were such that there is no injustice because they were not in breach of a duty of care.

Your Honours, the fact that the duty cannot be – the content of it cannot be defined with clarity is an indication that in this particular situation there was no breach of the duty of care.  My learned friend has referred to the Canadian Supreme Court’s latest exposition on this subject, and as the Chief Justice in Canada said, courts are not in the business of second‑guessing what the police do in situations of urgency, exigencies such as this. 

So that whilst there may be an interesting point in relation to people other than offenders, so far as the question of duty of care of the police is concerned, this man clearly falls within the principles that have already been articulated by this Court in cases such as Sullivan v Moody and Tame, that is, he is a suspect and there are strong reasons in legal principle and public policy as to why the police do not owe a person in that position the kind of duty that is suggested.

Might I say, your Honours, whilst on that topic, this case is not a suitable vehicle to examine this issue of the circumstances in which the police may be subject to a duty because in the end her Honour eschewed any reliance in her decision upon broad questions of principle or policy.  She discussed those matters but in the end she decided that on the facts of this case a duty was assumed. 

So the broad questions that have been before the House of Lords in Hill and more recent cases and were before the Canadian Supreme Court, they did not arise in her Honour’s mind in her Honour’s decision and similarly the Court of Appeal decided that on the facts of this case her Honour was in error in deciding that the police assumed a duty of care, whatever that may mean, to the applicant because – and this was the important point – they had no control over the source of the risk of harm.

The source of the risk of harm was the mental state of the applicant and the fact that he was armed.  He was irrational and he was armed.  They did not control that.  They had no control over that whatsoever, as the events demonstrated.  One of them was struck to the ground and played no further part and the other one had to retreat 10 metres and then as he was about to be struck what he thought was a life‑threatening blow, he had to use his firearm, but at no stage until the firearm was used did they have control.  Therefore it would be inappropriate, we say, and the Court of Appeal certainly said, to assume that they in effect assumed a duty of care or responsibility to the applicant.

So, your Honours, for those reasons there is no question of injustice here and on the question of the broader principles, true it is that the Court of Appeal invoked some broader principles, but they did so simply following what this Court has said in cases including Tame and the case of Sullivan v Moody.  The fact is that there is a clear incompatibility of duties between what the police were required to do pursuant to the Australian Federal Police Act, that is, take action on behalf of the community – the duties under the Act are not to any individual, but for the community at large - an incompatibility between that and the suggested duty that in relation to armed offenders, or suspects rather, there is a common law duty superimposed upon the statutory duty that requires them to have regard to the interests of that person and to take reasonable care that in the performance of their statutory duties they do not cause harm to the suspect.  Now, my learned friend says in his submissions ‑ ‑ ‑

HAYNE J:   Well, it may not be such a large step to say that the execution of a power or carrying out of a power must be done carefully, but that may not be so.

MR SEMMLER:   Well, your Honours, it is a question of whether, as a matter of practicability and, indeed, common sense, the two can be reconciled.  If one takes the typical example of the police attempting to apprehend an armed offender, inevitably – and these were the words used by Justice Charron in the dissenting judgment in the Canadian Supreme Court case – inevitably a private law duty to the suspect in the way in which they attempt to arrest him or bring him to ground or whatever they are attempting to do, inevitably that must pull away from their statutory duty on behalf of the community at large to bring that offender under control.  The two cannot, we say, be reconciled.

Your Honours, in addition to the incompatibility of the duties, which we say the Court of Appeal correctly used as a basis for deciding there was in fact no duty, there are the broader policy issues that were invoked by the Court of Appeal that were first articulated in Hill v Chief Constable of West Yorkshire and in more recent decisions in the United Kingdom that effectively say it would be detrimental to the proper law enforcement to have police officers subject to private law duties to the very people that they suspect of crime.  It would detract from the efficiency with which they carry out their police work.  It would cause valuable police and limited police resources to be devoted to litigation such as this, rather than to their prime purpose of enforcing the criminal law.

Your Honours, we say that the policy reasons which were articulated and referred to indeed in Hill have been adopted at least, or referred to with approval by this Court on a number of occasions, and we have referred to those in our written submissions in cases such as Crimmins v Stevedoring Industry Finance Committee, in Sullivan v Moody itself, in Tame and in D’Orta-Ekenaike v Victoria Legal Aid. 

In each of those cases, the Hill policy reasons behind what they call an immunity in the United Kingdom were referred to with approval and, indeed, in Tame, the one authority to which we have referred your Honours, a number of Justices in this Court invoked the question of irreconcilable or inconsistent duties to deny that the police in that case owed a duty of care to a suspect.

Now, true it is that was in the context of psychiatric injury but in reality, in our submission, that is a difference without relevance to the question of whether or not a duty of care should not arise by reason of inconsistency.  I am not sure if your Honours have a copy of that decision, but if I could just ‑ ‑ ‑

HAYNE J:   I think we are generally familiar with Tame, and I think the notion of calling Mrs Tame a suspect might come very close to the very source of her complaint.

MR SEMMLER:   Yes, your Honour, and as I recall, that was one of the submissions that was put.

HAYNE J:   Yes.

MR SEMMLER:   But be that as it may, on one analysis perhaps, she might have been regarded in that way.

HAYNE J:   If she had been in a motor accident ‑ ‑ ‑

MR SEMMLER:   Yes.

HAYNE J:   Yes.

MR SEMMLER:   Your Honours, in an attempt to persuade to your Honours that this is a matter of significance that deserves the grant of special leave, my learned friend refers to this Canadian decision of Hill v Hamilton‑Wentworth, but the reality is, your Honours, that in the majority judgment the Chief Justice of the Canadian Supreme Court did not even cite the cases - the line of authority in this Court concerning the importance of coherence in the law and the importance of there not being inconsistent duties, and it is clear therefore that the emphasis that is put on those issues in Canadian law is different from that which is placed upon them in Australian law.

The other matter to be taken into account, your Honours, when considering whether this really is an issue of significant public importance is that it is not just the question of inconsistent duties but it is also a problem for the fabric of the law, in terms of coherence, if your Honours even contemplated that there may be a duty of care owed by the police to a suspect.  We see that in the article that my learned friend helpfully put before you written by Mr Manton on the significance of the Canadian decision.

HAYNE J:   The more you emphasise these points, Mr Semmler, the more you identify a matter of controversy.  The question, I would have thought that was at stake in this case, is whether we ever get to those questions of controversy.

MR SEMMLER:   Yes.  Your Honours do not get to them because we say the law is clear from Sullivan v Moody and Tame and the more recent decisions of this Court and your Honours do not – if there is no question of importance, so far as the duty is concerned, there is certainly no issue in relation to the question of injustice for the reasons I have indicated, so far as the facts of the case are concerned.  This was an unusual factual situation and, your Honours, the Court of Appeal’s decision was correct.  Those are our submissions, your Honour.

HAYNE J:   Thank you, Mr Semmler.  Yes, Mr Maconachie.

MR MACONACHIE:   The case was determined by the Court of Appeal against the ACT on a purely factual basis.  Arising out of what Mr Gross has had to say there are really only two points I want to make.  The first is the manner in which the Court of Appeal dealt with the question of delay.  The Court of Appeal found at 415, line 30 of the appeal book – it is in the second volume, your Honour, and I will not take you to it, as such – she was “impressed” – that is the trial judge was impressed – with the honesty and the like and the attempts to give truthful evidence of each of the witnesses who gave evidence.

Secondly, that seems to be a finding, we would say, that demeanour and the like is a somewhat neutral element.  Next, at 414, line 34, the Court of Appeal noted that the trial judge approached the fact‑finding exercise not impressionistically but analytically, considering the evidence and the probabilities based on an analysis of the evidence.  At 416 when the Court of Appeal dealt with the evidence of Constable Willis the approach that was taken was analytical rather than impressionistic.

HAYNE J:   What is the point you are trying to get us to, Mr Maconachie?

MR MACONACHIE:   The point I am taking you to, your Honours, is that the trial judge approached the case analytically rather than impressionistically and by reason of demeanour.  The Court of Appeal noted the submission put by myself and Mr Semmler to the effect that given the delay, which was three years from the time she saw the witnesses until the time she delivered her judgment, the court needed to be cautious in the manner in which it treated her impressions.

HAYNE J:   We understand that to have been the reasoning of the Court of Appeal.

MR MACONACHIE:   Quite.

HAYNE J:   What follows from it?

MR MACONACHIE:   What follows from that is that the assertion by the Court of Appeal – they were in just as good a position to determine the questions of fact which they were required to do – Fox v Percy, a real review of the trial.  The point made by Mr Gross to the effect that the Court of Appeal dealt incorrectly with the question of delay is just not made good, for the reasons that I have just given. 

The other matter to which I wish to take your Honours is the breach question as against the hospital – as against the health authority.  When asked by your Honour the presiding judge what was the breach, he said that there was a failure to follow up the next morning.  There was no failure to follow up the next morning.  The plan that was – if it is to be called a plan that was fashioned the night before in the company of Mr Crowley, Mrs Crowley and Jonathan’s sister, Dr Crowley, was that Mr and Mrs Crowley would keep an eye on Jonathan overnight, or words to that effect, and they would call in the morning, or there would be a call made in the morning by the ACT Mental Health Service to determine whether or not it was necessary for there to be efforts made by the service to take Mr Crowley to the hospital.

It was Mr Crowley’s reasonable concern, that of a loving father, that his son who had a dislike for police might be upset by being forced to go to the mental health facility and he was confident that he could, on the night of the 10th, persuade his son to go, and he said let me try, as it were.  The following morning at 7.53 he made a telephone call to the ACT Mental Health Authority and said he is in as good a condition – as good a position as I have seen in a long time or words to that effect.  Let me try and get him to the hospital, do not come out.  Mrs Eggins said that sounds fine to me.  That is good and sensible, and that in the context of section 7 and section 9 of the legislation which says interfere with the autonomy of the human being with whom you are considering dealing with under section 37 to the least possible extent.  That is what was done. 

Mr Crowley observed his son on a number of occasions during the morning, but in the events that occurred, plainly enough a situation emerged in which Jonathan deteriorated.  There was a guest at the house, a Mr O’Connor.  Whether that was connected with the supervision that he might otherwise have been given one cannot but know. 

What happened plainly enough was that Mr Crowley, plainly a loving and caring father, and Mrs Crowley, were doing what they considered appropriate to keep their son calm and under control and to persuade him to go to hospital.  Even if the ACT Mental Health people had come out first thing in the morning, what would they have found?  On the evidence they would have found, as Mr Crowley found, a young man who was in a good place, not requiring the compulsive processes of section 37.

BELL J:   In any event, to the extent that there was, contrary to the Court of Appeal’s conclusion, a relationship of health care provider and patient established the night before, it was part of the agreement that there would be telephone contact the following morning to further assess.

MR MACONACHIE:   Absolutely, and that occurred.  The Court of Appeal’s outcome ‑ ‑ ‑

HAYNE J:   I think we need not trouble you further, Mr Maconachie.

MR MACONACHIE:   Thank you, your Honours.

HAYNE J:   Mr Gross.

MR GROSS:   Your Honours, in relation to the arguments on behalf of the police, what has been put is that the plaintiff was bearing down on them and that they had to deal with this hostile situation.  Your Honours, the fact was that he had turned when the police car arrived, taken a few short steps and then stopped, and so he was stopped and the police car was stopped.  At that point, the police officers got out of the car.  Could I very briefly refer your Honours just to a few things?  At page 449 at paragraph 230:

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”.

BELL J:   Where are we, Mr Gross?

HAYNE J:   Page 457, I think.

BELL J:   Page 457?

MR GROSS:   I am sorry, page 449 in the second book at paragraph ‑ ‑ ‑

HAYNE J:   Page 457, I think we are at.

BELL J:   It is 457.

MR GROSS:   I will continue:

Mr Allan Richter’s evidence was to similar effect; that the police officers screamed at Mr Crowley.

Paragraph 231:

The trial judge preferred the evidence of Mr Oakley and Mr Allan Richter 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 negotiations; and

(e)that while the police officers were yelling at Jonathan, he brought the kendo stick into an attack or “ready” position.

Your Honours, at page 484, somewhat inconsistently the Court of Appeal deals further with this.  It is said that they were entitled to assume that he would comply with their forceful directions, but on the descriptions of the witnesses, that is, the lay witnesses - they are not the police officers - his posture before they got out of the car was in effect holding the kendo stick above his head rather like a weightlifter would and where they thought he was in a surrendering posture.

It is at that point that the police officers – the moment the police car arrives - immediately jump out of the car and dramatically take on a confrontational and threatening approach, both in terms of their verbal language and their body language, and made demands of him from a position which plainly indicated hostility.  They made no attempt to communicate with him at all.  They provoked this large, mentally disturbed man who was armed with a weapon to go from being a passive, if not surrendering, state into a violent response.  So, your Honours, it a consequence of accepting the lay witnesses on that that you have this transition from peaceful or non‑violent response by the plaintiff to the car arriving to the confrontation that occurred.

The overlap in the times appears to be on the question of whether ‑ after the police officer had done all the things we have just described, that is, yelled and the like ‑ whether Constable Willis moved forward from behind the car and the plaintiff moved forward towards him at the same time, or who went first, and so that was a bit ambiguous.  There was no ambiguity about the fact that from the time when the police car arrived the police officers did all these things which I have just described, and only

then did the violent and non‑co‑operative reaction occur from the plaintiff which involved him moving towards the police officers in a threatening manner.

Your Honours, in relation to the case against ACT Mental Health, the point that is made by the psychiatrists – and they are in agreement on this – that the plaintiff’s father did not have the training to make the professional clinical judgment that psychiatric assessment was not required, and so that it is the reliance upon that source that prevented them from going ahead with a well thought out and appropriate regime for the treatment, or continuation of the treatment and care that they had already embarked upon.  Thank you, your Honours.

HAYNE J:   Thank you, Mr Gross.

The applicant has insufficient prospects of disturbing the actual orders made by the Court of Appeal in this matter to warrant a grant of special leave to appeal against either of the respondents.  Special leave is refused.

AT 10.19 AM THE MATTER WAS CONCLUDED