Jonathan Anthony Crowley v Commonwealth of Australia, Australian Capital Territory and Glen Pitkethly
[2011] ACTSC 89
•27 May 2011
JONATHAN ANTHONY CROWLEY v COMMONWEALTH OF AUSTRALIA, AUSTRALIAN CAPITAL TERRITORY and GLEN PITKETHLY
[2011] ACTSC 89 (27 May 2011)
TORTS – negligence – circumstances in which police may owe a duty of care – extent of police “immunity” in respect of investigations and suppression of crime – taking control of situation may constitute assuming a duty of care – coherence.
TORTS – negligence – relationship between common law doctor-patient duty of care and statutory power to compulsorily detain mentally dysfunctional or mentally ill person – common law duty of care may be associated with existence of statutory power to compulsorily detain.
Australian Federal Police Act 1979 (Cth), ss 4, 8, 38
Australian Federal Police Legislation Amendment Act 2000 (Cth)
Evidence Act 1995 (Cth), s 135
Community and Health Services Complaints Act 1993 (ACT)
Health Records (Privacy and Access) Act 1997 (ACT), ss 5 (IPPs 9 and 10), 6, 18, 19
Mental Health (Treatment and Care) Act 1994 (ACT), ss 7(a), 9, 37, 38, 40, 41
Compensation to Relatives Act 1897 (NSW)
Mental Health Act 1990 (NSW), ss 9, 10, 21, 22, 24, Part 1 of Chapter 4
Police Service Act 1990 (NSW)
Police Act 1990 (NSW)
Community Welfare Act 1972 (SA), s 25(a)
Mental Health Act 1986 (Vic), s 10
Australian Federal Police Regulations 1979 (Cth), Sch 1
Court Procedures Rules 2006 (ACT), Div 2.12.2, r 1241(1), 1242(5), Schedule 1, subr 1.2(3)
Ashley v Chief Constable of Sussex Police [2008] UKHL 25
Ansett Transport Industries (Operations) Pty Ltd v State of NSW (1998) 28 MVR 145
Batchelor v State of Tasmania [2005] TASSC 11
Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495
C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
Chapman v Hearse (1961) 106 CLR 112
Chief Constable of The Hertfordshire Police v Van Colle;Smith v Chief Constable of Sussex Police [2008] UKHL 50
Chomentowskiv Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070
Cran v State of New South Wales (2004) NSWCA 92
Cumming v State of NSW (2008) NSWSC 690
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Ferroggiaro v Bowline (1957) 64 Am LR 2d 1355
Gibson v Orr [1999] SC 420
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gruber v Backhouse [2003] ACTSC 18
Haber v Walker [1963] VR 339
Halech v SA (2006) SASC 29
Hill v Chief Constable of West Yorkshire [1989] 1 AC 53
Howard v Jarvis (1958) 98 CLR 177
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Jones v Dunkel (1959) 101 CLR 298
Kirkham v Chief Constable of the Greater Manchester Police [1989] EWCA Civ 3; [1990] 2 WLR 987
Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936
Knightley v Johns [1982] 1 WLR 349
Makita(Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Manly Council v Byrne [2004] NSWCA 123
March v Stramare (1991) 171 CLR 506
New South Wales v Klein (2006) NSWCA 295
OsmanvUnited Kingdom [1998] ECHR 101
Philips v William Whiteley Ltd [1938] 1 All ER 566
Rickard v State of NSW [2010] NSWCA 151
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
Rogers v Whitaker (1992) 175 CLR 479
Rush v Commissioner of Police (2006) 150 FCR 165
Schilling v Lenton (1988) 47 SASR 88
State of New South Wales v Fahy (2007) 232 CLR 486
State of NSW v Riley [2003] NSWCA 208
State of NSW v Spearpoint [2009] NSWCA 233
State of NSW vTyszyk [2008] NSWCA 107
State of Victoria v Richards [2010] VSCA 113
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Sullivan v Moody (2001) 207 CLR 562
Swinney v Chief Constable of Northumbria Police Force [1997] QB 464
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Tame v New South Wales (2002) 211 CLR 317
Thompson v Vincent [2005] NSWCA 219
Ticehurst v Skeen (1986) 3 MVR 307
Vairy v Wyong Shire Council (2005) 223 CLR 422
Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692
Wyong Shire Council v Shirt (1980) 146 CLR 40
Zalewski v Turcarolo [1995] 2 VR 562
Transcript of Proceedings, Tyszyk v State of NSW [2009] HCATrans 84 (1 May 2009)
Luntz H, Hambly D, Burns K, Dietrich J, Foster N, Torts: Cases and Commentary (6th edition, Lexis Nexis Butterworths, 2009)
Review of Fatal Shootings by Victoria Police (Report of the Director of Police Integrity, Office of Police Integrity, Victoria, November 2005)
Spigelman CJ, ‘Negligence: The Last Outpost of the Welfare State’ (speech delivered at the Judicial Conference of Australia: Colloquium 2002, Launceston, 27 April 2002)
No. SC 367 of 2002
Judge: Penfold J
Supreme Court of the ACT
Date: 27 May 2011
IN THE SUPREME COURT OF THE )
) No. SC 367 of 2002
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JONATHAN ANTHONY CROWLEY
Plaintiff
AND:COMMONWEALTH OF AUSTRALIA
First Defendant
AND:AUSTRALIAN CAPITAL TERRITORY
Second Defendant
AND: GLEN PITKETHLY
Third Defendant
ORDER
Judge: Penfold J
Date: 27 May 2011
Place: Canberra
THE COURT ORDERS THAT:
Judgment is given for the plaintiff, in the action in negligence, against the first, second and third defendants, for an amount of damages to be ordered.
The parties be heard about the amount of damages and about the apportionment of damages among the defendants.
The parties have leave to apply to the court in respect of the claims not addressed in this judgment.
Part 1 – Introduction
The actions
Jonathan Crowley is seeking damages from the Commonwealth of Australia, the Australian Capital Territory (ACT) and Glen Pitkethly in respect of injuries Mr Crowley sustained in an incident in 2001. There is a claim for contribution and indemnity by the first and third defendants (the Commonwealth and Mr Pitkethly) against the second defendant (the ACT), and a matching claim by the ACT against the Commonwealth and Mr Pitkethly.
The Commonwealth is said to be liable for the negligence of the Australian Federal Police (AFP). It is also said to be vicariously liable for the actions of Mr Pitkethly, now Sergeant Pitkethly but at the time of the incident a Senior Constable in that part of the AFP that provides police services to the ACT and is known as ACT Policing (SC Pitkethly), and his colleague Ben Willis, also now a Sergeant but in 2001 also a Senior Constable in ACT Policing (SC Willis). The plaintiff also claims damages for an assault and battery by SC Pitkethly. I shall refer to the first and third defendants together as “the police” except where it is necessary to distinguish the AFP from SC Pitkethly.
The ACT is said to be liable for the negligence of an agency now known as Mental Health ACT that was in 2001 part of the ACT department responsible for health and known as ACT Mental Health Services (ACTMH). I shall generally refer to the second defendant as ACTMH.
Separately from its claim for contribution or indemnity from the Commonwealth in respect of any damages it is liable to pay Mr Crowley, the ACT also claims damages from the Commonwealth for economic loss arising from the ACT’s responsibility to provide ongoing health care for Mr Crowley, which loss is said to be caused by the negligence of the police.
The judgment
This judgment makes findings of fact about the relevant events, and determines that all three of the defendants are liable to the plaintiff in negligence. It does not apportion liability among the defendants, or assess damages. It does not deal with other tortious claims made by any of the parties. All of those matters may be the subject of further submissions to be made in the light of the findings of fact and law set out in this judgment.
The judgment is organised as follows:
Part 1 – Introduction [1]-[18] Part 2 – The evidence [19]-[73] Part 3 – The events of December 2001 [74]-[445] Part 4 – The negligence claims [446]-[449] Part 5 – Claims against the police – the applicable law [450]-[583] Part 6 – The plaintiff’s claim against the police [584]-[881] Part 7 – Claims against ACTMH – the applicable law [882]-[957] Part 8 – The plaintiff’s claims against ACTMH [958]-[1083] Part 9 – Other matters [1084]-[1086] Part 10 – Conclusions and orders [1087]-[1093]
The incident
The basic facts of the incident are not in dispute.
Jonathan Crowley (Jonathan) was at the time of the incident a 34-year-old man who lived in a caravan in his parents’ backyard in Chapman ACT. He was intelligent and personable, although somewhat eccentric and a sufferer of obsessive compulsive disorder. As a result of various accidents before 2001, he suffered chronic back pain, and was living on a disability support pension provided through Centrelink.
Several days before the incident in question, Jonathan showed the first signs of what was ultimately recognised as a psychotic episode. At this point, he was not a patient of ACTMH, although his brother Mark who lived at the same address was.
On Monday 10 December 2001, family members made contact with ACTMH, and an ACTMH psychologist visited the family home that night. It was agreed that Jonathan needed assessment in hospital, and there were discussions about how this might be arranged. Next morning, Jonathan was observed acting strangely by an ACTMH employee, but this was not reported to anyone for two hours. No hospital admission was achieved before Jonathan left the family home on the Tuesday morning carrying a kendo stick, an instrument consisting of several pieces of bamboo held together by some sort of covering.
For some time after leaving home, Jonathan wandered the streets near his home, and interacted with various members of the public working or otherwise present in the area. Some of them, and others who observed his progress, reported his behaviour to the AFP. As a result of these reports, SC Pitkethly made a number of enquiries in the Chapman area but did not find Jonathan.
Police officers assembled at the Chapman shops car park for a briefing. A report of a recent sighting was relayed to those police officers, and a police vehicle driven by SC Pitkethly and also containing SC Ben Willis left the car park to follow up the report. Senior Constables Pitkethly and Willis came upon Jonathan in Doyle Terrace, Chapman. SC Pitkethly stopped the vehicle, and both police officers got out. They engaged with Jonathan, and shortly thereafter SC Pitkethly shot Jonathan in the neck. Jonathan sustained injuries as a result of being shot that left him suffering quadriplegia.
This basic narrative, however, glosses over many aspects of the incident that are in dispute, and does not address the interpretation or implications of facts agreed or disputed. As well, of course, there has been argument about the legal significance of many of the events in terms of founding any liability on the part of any of the defendants, as well as about whether any of the defendants owed any duty of care to Jonathan.
The shooting of Jonathan Crowley was undoubtedly a tragedy, not just for Jonathan himself but for his parents, his brothers and sisters and other family members. It became apparent during the trial that the shooting was also a tragedy for others involved, in particular SC Pitkethly who shot Jonathan, the two police officers who witnessed the shooting, and the civilian witnesses to the shooting. Several of them broke down while giving evidence, even though it was more than seven years after the event.
It is appropriate to record that it is not only the Crowley family, and Jonathan Crowley in particular, who have been permanently damaged by these events.
It is also appropriate to note that inevitably, the form and scope of these proceedings limit the enquiry into where in a chain of events there were duties of care, and breaches of those duties, sufficient to found liability for the damage that Jonathan has undoubtedly suffered. Findings of negligence on the part of any of the defendants do not mean that no one else played a role in the unfortunate chain of events that resulted in the tragic outcome.
Damages
Before the hearing began, it had been agreed between the parties that questions of liability and quantum of damages would not be separated. However, little if any evidence relevant to damages had been heard before the beginning of the third week of a six-week hearing, at which point the parties indicated that they had almost reached agreement on quantum of damages, and a draft agreement was provided to the court. As already mentioned, this judgment does not deal with questions of quantum.
Communications
It is ironic that the reason given by both police officers for getting out of the police car and engaging with Jonathan on Doyle Terrace was the need to communicate with him. The irony emerges from the fact that this tragedy appears to have resulted from a series of communications failures, in circumstances where avoiding any one of those failures might have changed the course of events sufficiently to avoid the final disastrous outcome. Communications within ACTMH, within the AFP, between the two agencies and by each agency with others outside the agency were too little and in some cases too late; finally, the two police officers involved failed to communicate properly, in particular with each other, about any aspect of the Crowley apprehension until it was all over, and their attempts to communicate with Jonathan were spectacularly unsuccessful.
Part 2 – The evidence
Oral evidence
Evidence was given at trial by the witnesses listed in Part 1 of Appendix A. The evidence of witnesses in the trial, together with legal argument and submissions, generated over 2,100 pages of transcript.
I comment on some of the witnesses in the course of discussing their evidence, but it is useful to comment here on several of the key witnesses. First I should say that, with minor qualifications noted in this judgment, all the witnesses impressed me as honest people genuinely trying to give truthful evidence. The differences in their recollections of events was in some cases stark, but this did not seem generally to indicate dishonesty (although there was a degree of evasiveness that I have also noted in particular contexts). Rather, the difficulty seemed to arise from the time that had elapsed since Jonathan’s shooting (six or seven years, depending when witnesses gave their evidence) combined with the fact that either the subject of their evidence was not of great moment to the witness when it happened or, for those for whom the relevant events were dramatic as they happened, their recollections have over the years developed a life of their own.
This is a case in which, I suspect, many of those involved have asked themselves whether Jonathan’s tragedy would not have happened if they had done something different on 11 December 2001, and whether, even discounting hindsight, they should have done something different that day. Keith Crowley hinted at this when he described trying to reconcile some of the things he was told about what had happened on the day of the shooting with how he believed he would have responded if those things had in fact happened.
There was certainly scope for a fair amount of guilt to be spread around the participants in this case. Clearly, in such circumstances, there is an incentive for people to remember things in the way that they find most comforting and most defensible. It is likely that such a tendency has, in this case, been reinforced by the repeated re-tellings of their stories that have been required of the key witnesses.
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.
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.
For these reasons, I have considered that the fact that the evidence of the key witnesses tends generally to favour their own interests is simply an inevitable outcome of the circumstances of this case rather than any indication of a casual or dishonest attitude to the truth, and I have seen my task not as trying to work out who to believe but as trying to sort out the most probable course of events from the multifarious confused and inconsistent versions of events that have been presented to me.
Documentary evidence
Documentary evidence totalling nearly 1,400 pages was also put before me.
Police interview transcripts
The documents included transcripts of conversations and interviews conducted by police investigators within two or three months after the shooting. Different names are used for different kinds of police interviews, but these are irrelevant for present purposes—I refer to them all as police interviews and the transcripts as interview transcripts. The police interviews involved many of the people who gave oral evidence as well as a number of civilians who had observed Jonathan’s behaviour before the shooting, and several AFP members and employees, ambulance officers and ACTMH staff who were involved with Jonathan’s case before or after the shooting. Part 2 of Appendix A lists other participants in the events of the few days leading up to the shooting whose police interviews were transcribed and put in evidence.
Official records
Two kinds of police records were in evidence. These consisted of:
(a) audio recordings of communications (via police radio or telephone) made to and from the police communications centre (Communications), and transcript made from those recordings (Communications transcript); and
(b) a report apparently generated from some kind of log of Communications activity, showing second by second information about the locations and activities of mobile units (police officers in vehicles) as well as “CAD operator” comments providing substantive information about reports received from mobile units and others (the CAD log).
No evidence was given of how these records were generated or, in particular, of how reliably the times recorded reflected the actual timing of the events recorded (for instance, whether the CAD log purported to show the time a phone call was made or the time the operator recorded that it had been made).
In relation to the Communications records, the original audio recordings were apparently held on what counsel for the police described as “a large piece” of “very sophisticated equipment that records a whole lot of things and ... requires a special operator”. Instead of the equipment being brought to court to play “the original digital file”, a CD was produced containing the relevant information from the digital file, and a transcript of the recording it contained was also prepared.
There were, however, two problems with the CD and transcript. One was that for some reason, the CD and the transcript as produced in court were not aligned, in that some of the later material appeared in a different order on the transcript from its order on the CD. The content of the several different conversations recorded and transcribed did, however, enable the making of a rationally-based assessment of the most likely correct order for the material.
More significant was the absence of time stamps for much of the material. The material had been extracted from a much larger body of material reflecting all matters being dealt with by Communications on the day concerned, and it seemed that in the course of extracting the material many of the time stamps (which appeared to be applied at one-minute or shorter intervals) had been lost, possibly for any conversation that was not the first one to begin after the most recent time stamp, but possibly on an even more random basis. This meant that the most that could be said about any particular conversation was that it had taken place between the two surrounding time stamps. Where the gap between the two was substantial (in one case it was 35 minutes), this placed a major obstacle in the way of determining when the conversations concerned had taken place and where they fitted into the broader chronology.
During the trial, relevant parts of the Communications audio recording were again extracted and a new transcript prepared, which included some material not in the original transcript and omitted some material that had been included. The new transcript more clearly identified individual conversations, but had no time stamps at all, and the conversations transcribed were still not necessarily set out in the correct order (for instance, the transcript of the police broadcast of a particular sighting of Jonathan came before the transcript of the report to the police of that sighting by the member of the public concerned).
As to the CAD log, there was no evidence of the relationship between the times shown in the log and the entries recorded against those times. A comparison of the early CAD log entries with Communications transcript of early reports of sightings of Jonathan shows the CAD log entries being made after the Communications records, but not with a regular delay so as to suggest that the clocks timing the two sets of records were not synchronised; rather the delay seems to be around two to three minutes but possibly as much as six minutes early on (perhaps before the matter took on any urgency). This in turn suggests that the CAD log entries were made manually at the time recorded in the CAD log, soon after the information was received by Communications but not a fixed time afterwards. That is, the CAD log showed the time records were made, not the time of the events recorded.
Some of the deficiencies in the evidence were not of major importance, but some of them have significantly complicated the fact-finding task.
Other issues
Two apparently relevant documents referred to in Keith Crowley’s evidence were not tendered, for no identified reason. These were Telstra records for the Crowley home and Keith Crowley’s mobile phone, and some kind of report prepared by a Michael O’Connor who had visited the Crowley home during the Tuesday morning.
I have commented at [640] below about what I consider an odd approach to some relevant AFP documents.
Evidence relating to ACTMH
Only one member of staff from ACTMH gave evidence, and he was called not by ACTMH but by the plaintiff. He was Jason Morris, a rehabilitation worker who dealt with Jonathan’s brother Mark and had a brief and accidental encounter with Jonathan on the morning of the shooting.
ACTMH called only two witnesses; both were called as expert witnesses, although in one case the evidence admitted was not admitted as expert evidence.
The evidence of ACTMH’s involvement with Jonathan (apart from that given by members of the Crowley family) consists largely of ACTMH records and the transcripts of police interviews with some of the staff members concerned, which were tendered by the plaintiff.
This has had several significant effects. There was no cross-examination of the ACTMH staff (other than Jason Morris) who made statements to the police. There was little or no useful explanation of:
(a) the organisational arrangements under which mental health services were provided to the ACT community by ACTMH;
(b) the composition of teams or the seniority or professional status of staff members;
(c) the movement of information within and between teams;
(d) the accessibility of information entered in ACTMH records; or
(e) the records themselves, and how those records, particularly time information attached to them, should be interpreted (apart from the ambiguous comments mentioned at [106] below).
Some of the ACTMH records refer to “CATT” (apparently Crisis Assessment and Treatment Team), but how many and which of the relevant ACTMH staff were strictly speaking part of a Crisis Team is not apparent. Accordingly, some of my references to the Crisis Team (which I have used as a more meaningful term than “CATT”) may not be strictly accurate.
Several of the police interviews with relevant ACTMH staff members were conducted in the presence of other ACTMH staff members who were there to “support” the person being interviewed. The interview transcripts show that those “supporters” participated in the interviews by correcting, or supplementing, the answers provided by the staff members being interviewed.
In the police interview with Jason Morris, the “supporter”, a clinical nurse consultant identified in the transcript as Howard Lane Franchie but whose surname may in fact have been Lanfranchi, apparently took over the interview to such an extent that at one point the transcript-maker began treating him as the interviewee and identifying Mr Morris as an interjector whenever he got a word in.
Mr Franchie’s role in the interview is exemplified by his response when Mr Morris was explaining how he had perceived Jonathan’s behaviour outside the Crowley home and why he hadn’t felt it necessary to go inside and talk to the family. At that point Mr Franchie interrupted with “I’m sure if you had reason for concern you would have called the police ...”.
John Bubear, described as Team Leader, Mental Health Crisis Team, attended police interviews with other ACTMH staff members Jenny Williams and Karen Eggins, and showed the same tendency as Mr Franchie to intervene to “correct” information given by the interviewees.
Counsel for the ACTMH explained in closing submissions that the various ACTMH staff involved in Jonathan’s care, and in dealing with the police on 11 December 2001, could remember very little of the events of that day, and for that reason there was no point in calling them to give evidence. ACTMH staff may well face memory challenges, as did most of the witnesses. There is no reason to believe that, with recourse to their interview transcripts if necessary, they could have given no useful evidence. Quite apart from evidence of the events of 11 December, coherent evidence of how ACTMH records were created and what information could be extracted from them would also have been useful. Such evidence could presumably have been given by a witness involved in either setting up or supporting that record-keeping system, whose memory could have been supplemented to a large degree by the specifications of the system and instructions or training materials on how to use it.
Counsel for the police noted that ACTMH’s failure to call witnesses who could have given relevant evidence had particular significance under Jones v Dunkel (1959) 101 CLR 298, referring me to the formulation of the NSW Court of Appeal in Manly Council v Byrne [2004] NSWCA 123 at [51] as follows:
Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
The material in the interview transcripts of police interviews with ACTMH staff is in many areas direct evidence of matters in issue, and possibly more reliable than the evidence that would have been given six or seven years later. As noted above, however, there are some areas in which evidence from ACTMH staff would have been useful, and I have to some extent relied on Jones v Dunkel to justify the drawing of inferences in relation to several issues, most notably for the purposes of my findings about the contents of the ACTMH telephone call to Keith Crowley shortly before Jonathan was shot (at [187] below).
AFP training material
Two AFP recordings relating to Jonathan’s shooting were tendered in DVD form and shown in court. One was a training DVD entitled Facing Fear, in which SC Willis described the incident and how he had experienced it, and the other was the unedited interview tapes from which the training DVD was made. This material was interesting and often moving, and gave extra insights into how the events of 11 December 2001 and their aftermath have affected the police. However, in the task of working out what actually happened on that day and why, the DVDs add little to the material available from the police interviews with the two officers and the evidence the officers gave at trial. Where the DVD material appears to be inconsistent with that other evidence, I have relied on the information given to police investigators shortly after the incident, and the evidence given on oath during the trial, in preference to information in the DVDs that was provided in a very different environment and for very different purposes.
Expert evidence
Seven expert witnesses gave evidence during the trial, two in relation to mental health issues including how a properly functioning publicly-funded mental health service might be expected to operate, and five in relation to the police response to Jonathan’s emerging crisis. One other witness was initially put forward as an expert. In the end, the only evidence from him that was admitted was not given in any expert capacity (see [333] below).
This case was originally listed to be heard by another Judge, and first came before me on the day the trial was to start. Previous case management had not apparently involved any consideration of the options for trying to find some common ground among the expert witnesses, although it is fair to say that for the reasons set out at [56] to [65] below, options such as the concurrent hearing of expert testimony (see Div 2.12.2 of the Court Procedures Rules 2006 (ACT) (CPRs)) may in fact have been more or less unmanageable.
Before discussing the specifics of the main expert evidence, it is useful to recall the requirements for expert evidence to be admissible, as set out by Heydon JA in Makita(Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85] as follows:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking, not admissible, and, so far as it is admissible, of diminished weight.
It is also useful to note that the requirements set out by Heydon JA have been identified as a “counsel of perfection”, and that as Branson J said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 (Sydneywide Distributors) at [7]:
As a reading of his Honour’s reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined ...
There are several respects in which Heydon JA’s requirements have not been properly met in this matter, but in the absence of any relevant objections from other parties, I have not excluded affected evidence or particular parts of it. Rather, I have adopted the approach outlined by Weinberg and Dowsett JJ in Sydneywide Distributors at [87]:
once the witness’s claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing.
There were two general problems in this case with the expert evidence.
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.
Mental health experts
The two medical witnesses were Dr Jonathan Phillips, called by the AFP, and Dr James Telfer, called by ACTMH. Their qualifications and experience are summarised at Appendix B.
While both the medical witnesses legitimately claim expertise in the specialist field of psychiatry, and both have had experience as senior managers in publicly-funded mental health services, there is a question in my mind about whether the running of publicly-funded mental health services is itself a field of “specialised knowledge”. While issues were raised about the diagnosis of Jonathan’s problem and the urgency of his admission to hospital (clearly matters for expert psychiatrists), those issues were no more vital than a separate set of issues relating to dealing with patients and their families, the respective roles and responsibilities of clinicians and families, and proper records management and information-sharing in a mental health crisis team. Some of those latter issues are not necessarily the kinds of issues that would routinely exercise the minds of senior psychiatrists in a mental health service, at least not until after a disaster. Furthermore, while it was clear that both medical witnesses were well qualified and respected in terms of their medical knowledge and experience, and that each of them had been in some form responsible for a publicly-funded mental health service, there was no evidence before me of their expertise (as distinct from their experience) in running such a service.
Experts in “policing”
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.
There are many very experienced police officers around, and some of them are no doubt recognised by their peers as having outstanding skills, knowledge, experience, insights and perhaps even instincts in policing. In some cases this recognition will have been demonstrated by promotions, or by particular police awards. In many other cases there will not, I suspect, be any way of identifying whether a particular police officer is recognised within the police community for particular “specialised knowledge”, and many of the most effective and skilled police officers might be hard pressed to turn their training, experience, insight and instinct into any kind of theoretical exposition of the requirements for “good” policing. That is, the identification of an expert in general duties policing is not straightforward.
Perhaps reflecting the lack of any real academic discipline of “policing”, the evidence given by the expert witnesses on many topics did not seem to me to be based on a body of technical knowledge to which I would otherwise have had no access; rather, it seemed to amount to using a degree of common sense and good judgment in applying to real-life situations the AFP principles and policies put in evidence, being principles and policies that were developed and drafted so as to be accessible to and applied by general duties police officers in their day-to-day work.
With one exception (Darren Rath, still a senior member of the AFP), the witnesses called to give evidence about policing had left a career in active policing some time previously. The two who had done so relatively early (Mr Jennings and Mr Smith) had worked as consultants in fields often described as “security”, and conceded that providing security advice to paying clients is very different from engaging in (or even being responsible for) day to day community policing on the streets; not only were the witnesses not engaged in such activity, but generally that was not the kind of activity they were in the business of giving advice about either. The two who had retired from senior positions in the police force (Mr Hazzard and Mr Schuberg) had spent much of their senior careers in areas not involving community policing.
Apart from Federal Agent Rath, the witnesses were consultants called to give evidence about a matter (specifically “general duties” or community policing) that might once have been part of their regular experience but was no longer either part of their experience or, in general, directly relevant to the expertise they were selling as consultants.
There is a further complication about Federal Agent Rath’s evidence, although I note that no objection was taken to it on these grounds. Federal Agent Rath included in his written report, and in his oral evidence, some evidence that was appropriately given in his capacity as a senior AFP officer, such as about policies and procedures of the AFP, and the content of training that is given to AFP officers.
The rest of his evidence, being opinions about the appropriateness of the actions of Senior Constables Pitkethly and Willis, was genuinely in the nature of expert evidence, and that evidence might have been assessed in the light of the fact that Federal Agent Rath was, in effect, an officer of the party which had engaged him to give expert evidence, namely the AFP. However, Federal Agent Rath had agreed to abide by the Expert Witness’s Code of Conduct, and I saw no indication that in giving his expert evidence he was acting otherwise than as an independent expert.
The issues surrounding Federal Agent Rath’s evidence mirrored those relating to the evidence of Merv Carnall, now an AFP Sergeant attached to the Specialist Response and Security Tactical Team, who was the officer in charge of the Operations Support Group (OSG) training activity on 11 December 2001 and who brought two OSG teams to Chapman to help in the operation to deal with Jonathan. Sgt Carnall was called by the plaintiff; he gave evidence of his role in the events of that day and evidence of AFP policies, procedures and operating arrangements, but also gave opinion evidence dealing with some of the issues covered by expert witnesses who gave evidence about policing. He had not been formally qualified as an expert witness, and nor had he agreed to the Expert Witness Code of Conduct; however, there was no objection to his evidence on that basis.
Counsel for the police went to some trouble to establish that the policing experts called by the plaintiff should be given less credence than those called by the police, because of asserted differences in their experience and status. He submitted that serving police officers (among whom he included Mr Schuberg, who retired in 1997) were the people who could best inform the court about appropriate standards for police conduct, rather than the “security experts” called by the plaintiff. To some extent these comments reflected the concerns I have expressed at [61] to [65] above about the existence of a relevant recognised field of expertise in relation to policing. They also, however, underscored those concerns, to the extent that two of the witnesses relied on by counsel for the police were serving police officers with the AFP, one of whom (DCS Carnall) was not, as mentioned above, bound by the Expert Witness Code of Conduct.
The other difficulty with counsel’s submission was that the evidence given by both Federal Agent Rath and Mr Schuberg, unsurprisingly, reflected some assumptions that were not borne out by the evidence and the facts as I have found them. Furthermore, Mr Schuberg’s evidence at trial provided several remarkable examples of question-begging reasoning; examples will be provided in relation to particular issues.
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.
The view
Early in the trial, the Court conducted a view of relevant areas of Chapman, being the Chapman shopping centre, Perry Drive, Bertel Crescent where the Crowley family then lived, Rickards Street, and Doyle Terrace where the shooting took place. No measurements were taken and no contemporaneous record was at any stage tendered by the parties. The view gave me a general understanding of the scene of the shooting and other relevant sites, but I have not relied on any specific observations.
Part 3 – The events of December 2001
The chain of events
There were many points in the 24 hours before Jonathan Crowley was shot at which a different decision or action on the part of one of the participants in the unfolding tragedy might have changed the outcome, but the chain of events can usefully be considered in three chapters.
First come the events of the day before the incident (Monday), and the early morning of the Tuesday on which the shooting took place. These mainly involve the Crowley family’s recognition of Jonathan’s deteriorating mental state, and their dealings with ACTMH about a mental health assessment of Jonathan. As well, on Tuesday morning an ACTMH staff member observed Jonathan acting strangely in the driveway of his parents’ home.
Next is the period during which both the AFP and eventually ACTMH became aware of an apparently disturbed person behaving in a threatening way in the Chapman area. After Jonathan left his parents’ home, he spent some time wandering through the streets of Chapman and possibly further afield. His unusual and in some cases threatening activities were reported to the police by a number of concerned citizens, and the police in turn sought information about him from ACTMH. The ACTMH staff member, Jason Morris, also reported his observation of Jonathan to other ACTMH staff.
The final period covers the police operation, beginning with the assembling of various police officers at the Chapman shops and ending with Jonathan’s shooting.
The main protagonist in each act of this tragedy is Jonathan Crowley, but with several minor exceptions he has a non-speaking role. Even when he does speak, he gives little or no insight into his motives or intentions, presumably because of the depth of the psychosis affecting him, a psychosis the existence or intensity of which has not been challenged in any way. The main supporting characters, however, are different in each act, and it may be that the lack of continuity in the community’s response to Jonathan Crowley’s crisis is one of the keys to this tragedy.
Jonathan Crowley’s evidence
Jonathan gave brief evidence. He conceded that he gets confused between what he can actually remember of the earlier events of the day he was shot, and what people have told him happened, and that his recollection of the events of the day is in many respects unreliable.
Jonathan said that on the day he was shot, he was having “some kind of nervous breakdown and some kind of religious experience”. His memory of the shooting was as follows:
I remember going for a walk. All I remember of the shooting is, I was walking along a footpath. I stepped down where the kerb, on the footpath, and a police car slammed on its brakes and pulled up right in front of me just missing me. I felt a little agitated and I waved my bamboo cane in the air and brought it down to my side and then the driver’s side policeman hopped out and shot me.
Jonathan’s life before the shooting
Before considering the events of Monday and Tuesday in detail, it is necessary to provide some background about Jonathan Crowley and his experiences and activities in the years and then the weeks leading up to the shooting. Most of this information was provided at the trial by his father Keith Crowley.
Jonathan Crowley was born in 1967, the sixth of seven children of Keith Crowley, now a retired school principal and Paloma Crowley, now a retired school librarian. He was brought up and educated in the Roman Catholic faith, and as an adult his faith remained important to him. After completing secondary school in the early 1980s he took a variety of jobs, including as a book salesman and as a security guard, but his real interests were in writing and politics. He had political aspirations, and was particularly interested in the possibility of a Bill of Rights for Australia. Jonathan was a big man, over 180cm (6 ft) tall, and at the time of the shooting he weighed around 100kg. His mother gave evidence that Jonathan was a spiritual man who did not like violence; he was gentle and caring and made friends easily.
Health problems
Over the years Jonathan had suffered a number of mishaps, including one assault, which resulted in significant injuries and eventually chronic back pain. He was treated by various specialists, including a psychologist, and prescribed analgesic medication. He also developed some mental health problems; he was prescribed antidepressant medication for intermittent depression, and also suffered from an obsessive compulsive disorder. By 1997 Jonathan was unable to work, and received a disability support pension.
Jonathan had used cannabis, apparently in fairly high quantities, for many years; this was partly recreational use, but he also found the drug helpful in pain management.
At the time of the shooting, Jonathan was living in a caravan in the backyard of his parents’ home in Chapman. He had recently moved back to live with his parents following a road accident in which he had received injuries that made it difficult for him to look after himself.
Attitude to police
Unfortunately, some of Jonathan’s mishaps had involved him in dealings with the police, and, whether rightly or wrongly, he believed that on some occasions he had not been properly treated by the police. His father gave evidence of two relevant incidents.
Some years before the shooting, Jonathan’s car had been broken into while he was working as a security guard, and items had been stolen. As a result of inconsistencies between his report to the police and the report prepared by the police, his employment as a security guard had been terminated; Jonathan blamed the police officer concerned, whom he believed had not described the situation properly in his report.
In 2000, Jonathan was involved in a road accident, and he had been visited at home by a police officer investigating the accident. Mr Crowley reported Jonathan’s view of the interview:
He was still in a lot of pain, and the policeman started to cross-examine him on distances and he’d never been very good on distances and he felt that he was being put at a disadvantage and being asked all these distances and he was unable to answer adequately.
Subsequently Jonathan was advised that “the two parties had been found 50% each guilty of careless driving”, a decision which he did not take well because he was “adamant that the other driver was completely at fault”. Mr Crowley described Jonathan as “annoyed” about this incident.
Mr Crowley conceded that in both situations, Jonathan had felt that the individual officers had dealt unfairly with him, and he agreed in cross-examination that, in counsel’s words, Jonathan was “very concerned about the rights of the individual in the interface between the individual and authority figures”. Mrs Crowley gave evidence that Jonathan was “passionate about the rights of the individual” and about things like a Bill of Rights, but denied that “when it came to the interface between the individual and authority or authority figures, [he] was on the side of the individual”.
Mrs Crowley said that Jonathan’s dealings with the police had caused Jonathan disappointment, and conceded that, “to a certain extent”, Jonathan had “a significant dislike of the police”. She said, however, that if she and Mr Crowley had felt obliged to call the police, they would not have told the police to be careful because Jonathan didn’t like them, they would have helped the police.
Jonathan’s political writings and interests indicated a concern with ensuring the proper exercise of the powers conferred on law enforcement authorities. In cross-examination, Jonathan agreed that one of the reasons he was keen to have a Bill of Rights in Australia was to ensure that the individual is not treated badly by the authorities. However, asked whether, in a fight between an authority figure and “the little man”, he would side with “the little person”, Jonathan pointed out that the Bill of Rights is also about responsibilities. Jonathan asserted that he had nothing against the police individually, and was concerned more for the constitution, and that he was always polite and helpful. Pressed by counsel to agree that as at December 2001 he had “a significant dislike for the police”, Jonathan said “I would say no to that. I would say more so I had a significant dislike of some of the laws in which the judicial system has to act upon”.
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.
The relevance of that finding is not necessarily obvious.
First, my finding about Jonathan’s general attitude does not of itself prove anything about the nature or intensity of Jonathan’s reaction to the presence of police in Doyle Terrace. In particular, it does not confirm the police claim that Jonathan was unexpectedly and exceptionally aggressive, and effectively irresistible. However, the information may be relevant to an assessment of the extent to which the police directly contributed to Jonathan’s reaction to them and the extent to which his behaviour was inevitable simply because they were police.
Secondly, as will become apparent, ACTMH was aware from the night before the shooting that Jonathan did not get on with police, but this was never conveyed to the police, if only because ACTMH never identified Jonathan to the police and never gave the police any information about Jonathan. The possession of the information by ACTMH, and its failure to pass that information on, are unaffected by the origins or exact details of the frame of mind that had given rise to that general statement, or indeed by the accuracy of the statement at all.
The sword and the stick
Some 10 years before the shooting, Jonathan had acquired a samurai sword, which had a fairly straight blade and a sheath. Mr Crowley gave evidence that some days before the shooting he had at Jonathan’s request taken the samurai sword, which Jonathan usually kept in his caravan, and had hidden it away (in a sheath and wrapped in some sort of cloth) under the carpet under a bed in his study. There was no evidence that Mr Crowley had checked its presence at any later stage, and the sword remained under the bed until Mr Crowley produced it in accordance with a police requirement after Jonathan was shot.
Mr Crowley said that he had not concerned himself with the kendo stick that Jonathan kept in his caravan, a bamboo stick used in the practice of the martial art known as kendo. This stick was referred to around the Crowley household as the “bok”, but it seems that sticks of this kind are also known as “kendo sticks”, “kendo swords” or “kendo shinai”. Jonathan had been interested in kendo when he first left school, but in recent years, Mr Crowley said, Jonathan had taken the kendo stick with him on walks, using it both as a walking stick and a possible weapon against the brown snakes that are found in Chapman (although more often Jonathan would take his dog instead). The kendo stick was said by Mr Crowley to be a training weapon designed so users would not injure each other. Andrew Oakley, one of the witnesses who encountered Jonathan on the Tuesday, described the stick as a practice or training sword.
The kendo stick as exhibited at the trial consisted of several strips of bamboo tied together, and a leather handle described by Jonathan’s counsel as looking “like an old tennis racket handle”. There were no sharp edges. It was 120 cm long and about 3 cm wide at its thickest point. There was expert evidence that these sticks weigh up to 750 gm (my own assessment is that Jonathan’s stick was somewhat lighter than that, which would be consistent with the evidence that some of its original leather covering was missing). The stick had writing on it making both religious and possibly military allusions, such as “God loves you forever”, “Joan of Ark’s [sic] sword”, and “To smite the nations to save them”.
Mr Crowley expressed surprise when the kendo stick was produced in court. He said that when he had last seen it, three or four years before the shooting, the bamboo had been covered by some sort of material along its whole length. He also said that he had never seen writing on the kendo stick; when he saw the kendo stick in court, Mr Crowley expressed some surprise at the writing, and said “I would have had the police out myself, your Honour, if I’d seen that”.
Emergence of Jonathan’s mental health crisis
Apart from the Crowley family, the significant players in Jonathan’s emerging mental health crisis were the staff of ACTMH. In those circumstances, the absence of comprehensive evidence on behalf of ACTMH (see [38] to [49] above) is notable.
The following general background about the organisation and operations of ACTMH has been gleaned from the small quantity of relevant material that was in evidence.
ACTMH – organisation and operations
In his police interview, Jason Morris explained that ACTMH consisted of four regional teams (City, Woden, Belconnen and Tuggeranong) plus units in The Canberra Hospital (referred to in some documents as “TCH”) and at Hennessy House in Belconnen.
In one of the police interviews which he attended, John Bubear (described as an ACTMH team leader) gave very general information about the physical set-up in the premises from which the Woden Team operated, but whether the Woden Team was the Woden Crisis Team or a larger group that included one or more Crisis Teams was not clear. Mr Bubear explained that the local mental health team (presumably the Woden one rather than one covering the whole of Canberra) worked in a converted house. Staff members rotated through the triage area and the Crisis Team. All phone calls came through one single point and were taken by the triage staff, of whom there were two working on weekdays. The triage staff wore headsets so didn’t hear other people’s conversations. If a record that had been entered in the system needed to be brought to the attention of the Crisis Team, the triage staff member had to print out the record and walk with it to the Crisis Team. Mr Bubear noted that this could cause time delays in passing on information.
In the course of Jason Morris’s police interview, some information was given by Mr Franchie, who attended the interview to “support” Mr Morris (see [44] above). That information was somewhat incoherent in the form in which it emerged, and it was not clarified in the interview. Nor was it clear whether Mr Franchie in any way spoke for ACTMH management. What seemed to emerge from his comments, however, was that an ACTMH staff member who made an electronic record could override the automatic recording and manually input the date or time of the incident recorded (although Mr Franchie did say that “if somebody selects a different time they usually have zero zero zero zero”). Mr Franchie might also have intended to convey that in such a case the record would retain an automatic date stamp, but this was not clear. He seemed also to suggest that a record being made could remain open for some time and that the automatic date stamp would reflect when the data entry was completed rather than when it was begun.
Monday – a problem is recognised
The Crowley family
Members of the Crowley family were among the first people to realise that Jonathan, who had been somewhat eccentric for years, had suffered a sudden deterioration in his mental health. Before the events of this week in December, Jonathan had not been a patient of ACTMH. Nor had he had any psychiatric admissions, or been seen by any specialist psychiatrist. Mr Crowley said that although Jonathan had been functioning reasonably well as late as the week before the shooting (he had, for instance, attended his local Labor Party branch meeting and presented a report about matters to do with an Australian republic), things had changed dramatically by the day before the shooting.
Very early on the Monday morning, Jonathan woke his parents up to tell them that he was Jesus Christ, and made comments to the effect that “we had 1,000 years to solve the problems of the world”. Mr Crowley said that nothing like this had happened previously, and that Jonathan “wouldn’t have been game” to come into his parents’ bedroom at hours like 5:00 am. Mr Crowley wanted to go back to sleep, and told Jonathan to go back to bed.
Mrs Crowley, however, realised that the problem was potentially serious, and told her husband that he needed to go and see what was going on. Mr Crowley talked to Jonathan in the caravan, and then contacted Jonathan’s general practitioner Dr Hislop later that morning. Dr Hislop said that Jonathan’s behaviour as described by Mr Crowley was outside his experience but indicated a serious psychiatric problem.
Later on the Monday morning Jonathan joined his parents and his sister on the front verandah of their home; he told them that there had been a miracle, that he was healed, that he would no longer need his marijuana, his cigarettes, or his medication (Panadeine Forte and Aurorix); he put all of it, including his prescription medication, into the bin.
ACTMH is called in
By Monday evening Crowley family members were quite concerned about Jonathan’s mental state. His sister Kate Crowley, a medical practitioner (then working at The Canberra Hospital), telephoned ACTMH and asked for someone to visit and assess Jonathan’s condition. That call was recorded by ACTMH at 6:53 pm as follows:
Call from sister concerned that this man who lives with his aged parents is quite delusional. He apparently believes that he is Jesus, has exhibited poor judgeemnt [sic] and is neglecting his self care. [T]he sister is happy to be present when we assess him. He has a long Hx of THC abuse but no previous psychotic episodes.
The record also shows that Jonathan was assessed as priority 2 (for response within 12 hours), at moderate risk of accidental self-harm and “non-compliance/absconding”, and at low risk of deliberate self-harm and harm to others. Boxes for “First Onset Psychosis”, “No Evidence of Mental Illness” and “Is the client currently depressed?” were all marked “No”. Questions about any history of violence and whether Jonathan was currently violent were answered “No”, but the availability of weapons was said to be “Unknown”. Action was set out as “CATT to assess tonight.” The negative response to the “First Onset Psychosis” box, combined with the note that Jonathan had “no previous psychotic episodes”, is notable.
Jon Wells came to the Crowley house at about 9.00 pm. Mr Wells was described as “Clinician” in the forms he completed for ACTMH records, one of which was a Canberra Hospital Patient Progress form and the other of which was headed “ACT Mental Health Services, Module B”. The fact that Mr Wells identified himself in a letter to the police investigators as “Psychologist”, but that Jenny Williams, a registered mental health nurse, also operated as a clinician on some shifts, suggests that “Clinician” was a functional description, referring to field workers who conducted mental health assessments, rather than an indication of the qualifications of particular staff. No evidence of Mr Wells’ relative seniority or status was drawn to my attention.
Keith Crowley said that it was clear to him by the time Mr Wells arrived that Jonathan was “mentally quite unwell”. Mr Wells spoke to Jonathan, and Mr Crowley described the subsequent discussion around the dining room table involving himself, Jonathan’s mother Paloma, his sister Kate, and Jon Wells, as follows:
[Jon Wells] certainly put the case that he was going to need help, which we agreed, and that he should be admitted to hospital and because it was getting late at night we suggested that he might wait till the morning, because we couldn’t see that he was a danger to anyone, or to himself. He was just so happy and peaceful. Jon Wells agreed and Kathy agreed, my wife, that we’d leave it till the morning, and that I’d keep a close eye on him. I stayed with him till he went to sleep.
Following his visit to the Crowley home, Jon Wells completed two forms as mentioned at [113] above. The Patient Progress Form included the following material:
Dom to Jon. House is first on left at end of Bertel that comes directly off Perry Drive. Jon was in his caravan with two friends when I arrived. I was greeted by his brother Mark (who also lives with his parents) and sister Kate. I briefly met Jon, a strongly built man of about 180 cm with dark curly shoulder length hair. Jon was very expansive and familiar. He told me that he had been depressed for 17 years but now was fine. He hugged me and stated to me that we had 1000 years to clean up the world and that he was going to establish a council of prophets early in the new year to get the process going and welcomed me to his circle. He introduced me to his two friends James and (Saint) Nicholas and pointed to his brother Mark and talked about Mark on the road to Damascus. He said that he had met Judas yesterday and that he had gone and hung himself but that he believed his soul was saved because he had shown remorse through the act of hanging himself. He stated that he had been tussling with the devil who had crushed his hand and that he had healed his hand by immersing it in cold water. Jon then went back to his caravan with his friends who told his parents, Kate and me that they would quickly say goodbye to Jon and send him in to see us.
I then discussed situation with Jon’s parents and sister Kate. They advised me that he has not presented like this before. They stated that Jon had been using marijuana since he was teenaged and that he had a history of having bad accidents. They advised that he did not get on with police, particularly since a road accident he had recently which he and his family believe was clearly the fault of the other driver but for which Jon got blamed. They advised that when Jon is coming off marijuana he is usually angry and aggressive, punching holes in walls as he demands money. Jon told them he threw his marijuana in the bin this morning and he shows no signs of aggression or anger. They said that Jon has always been charismatic and had lots of friends but that he has never really had a career. They also advised that he has a history of compulsive behaviour (eg checking he has locked his car many times) and was on aurorix for this but that he has had no medication for that for some time.
Jon did not come in while I was there. Parents agreed that there was no immediate risk of harm to self or others and assured me that they could manage him overnight. They have our number in case the situation takes a turn for the worse. It is my judgement that Jon requires admission to assess and control risk and to initiate treatment. Jon’s parents advised that they are not hopeful about our ability to bring him in for assessment without police involvement but would prefer if we could manage without if possible. They believe Jon could leave if he knew we were coming to assess him.
PLAN: AM assessment. P/C to father (Keith) on his mobile (0421 xxx xxx) first.
Significant matters mentioned in the forms are:
(a) Jonathan’s report of having met Judas who had subsequently hanged himself, and of having been “tussling with the devil who had crushed his hand”;
(b) that Jonathan did not get on with police;
(c) that when Jonathan was coming off marijuana he was usually angry and aggressive and punched holes in walls;
(d) that Jonathan’s parents had assured Mr Wells that “they could manage him overnight”;
(e) that Jonathan was tall (around 180 cm) and strongly built, with curly shoulder-length dark hair;
(f) that Jonathan was unlikely to agree to psychiatric treatment and that an involuntary admission would probably be required to assess and control risks and commence treatment;
(g) Mr Wells’ suggestion to the Crowley family that the Crisis Team could visit “after about 9am” on Tuesday “to see if we could get him to agree to come to hospital voluntarily for a psych reg assessment”;
(h) Mr Wells’ advice that if Jonathan was unwilling to go voluntarily, “we would most likely leave and return with police to take him to hospital”;
(i) the Crowley family’s statement that they “would prefer that police not be involved but were aware that they may be required”.
Jon Wells marked the risk assessment for “non-compliance/absconding” as “high” (an upgrade from the earlier “moderate” risk). He also wrote on the Crisis Team whiteboard the plan specifying that the Crisis Team should phone Keith Crowley to organise a visit to assess Jonathan early the next morning.
Mr Crowley stayed with Jonathan that night until around 1:00 am or 2:00 am, at which stage Jonathan seemed to be sleeping soundly.
Mr Crowley’s evidence was that there was agreement between Mr Wells, Mrs Crowley and himself that he (Mr Crowley) would “keep a close eye on [Jonathan]”. He also gave the following evidence:
But you were concerned to make sure that until the CAT team came the next morning that he stayed at home?---Yes, that he was okay, yes.
What were you worried about?---We had never experienced this, we’d never experienced it with Jonathan. We didn’t know what to expect. All we knew was that we had to observe him as closely as we could, and make judgements about whether he was going to change his behaviour any further.
...
Is it fair to say that given his state of mind you considered he needed to have somebody keeping an eye on him all the time?---No I didn’t really, I suppose I should’ve but I didn’t because the way he was describing his feelings and his state of mind was one of peace, happiness, joy not of wanting to fight, argue, he just wanted to be loving and be loved and he was happy at that stage. This was before the following day.
Yes?---We had no reason to believe he was going to take off ...
Apart from his reference to Mr Wells’ agreement, Mr Crowley did not give evidence of receiving any advice from any ACTMH staff member to the effect that he should ensure that Jonathan was watched at all times until he went to hospital; nor is such advice mentioned in any of the ACTMH records in evidence.
Having regard to the many other details of the discussion recorded in Mr Wells’ note, in particular his assessment that Jonathan was a high risk for “non-compliance/absconding”, the absence of any reference to such a warning is notable.
There is in Jason Morris’s interview transcript a reference to Mark Crowley having told him, after Mr Morris observed Jonathan acting oddly, that:
everything had settled. ... [The Crisis Team] didn’t feel that it was necessary for him to be admitted but they were encourage [sic] the father to just keep an eye on him and if he needed to – to go but they were gonna encourage the – the family to do that rather than with the other options because that was gonna be the easiest way for them.
At trial, Mr Morris said that Mark Crowley had told him that his father was “kind of keeping an eye on how things were going”. If anything, Mr Morris’s evidence confirms my inference, from the absence of other evidence, that neither Mr Wells nor any other ACTMH staff member gave any member of the Crowley family clear advice that, until he could be admitted to hospital, Jonathan had to be supervised closely; rather, they encouraged the Crowleys to “just keep an eye on him”, a very different message.
Tuesday – Jonathan is still unwell
Keith Crowley set his alarm for 6:00 am on the Tuesday and went back to see Jonathan then, finding him listening to the radio. Jonathan told his father that “I’ve never been so happy in all my life”. At that point Keith Crowley still believed that Jonathan would need to be hospitalised, but having got through the night it seems that he considered there was no ongoing need to keep a particularly close eye on Jonathan (see [119] above).
Jonathan’s mother also spent some time with Jonathan in his caravan during the early morning, visiting him around 7:00 am or 7:30 am and finding him calm and peaceful and reporting great happiness. She was relieved about this, but did not want to discuss spiritual matters with him because of his comments the day before.
Keith Crowley telephones ACTMH
On Tuesday morning Keith Crowley telephoned ACTMH. Mr Crowley thought this phone call was made around 9:00 am, but the ACTMH record appears to have been entered in the ACTMH record-keeping system at 7:53 am and I see no reason to doubt that. The record was made by Jenny Williams, a registered mental health nurse who sometimes worked as a clinician conducting assessments.
The record was as follows (the reference to Calvary is to Calvary Hospital, the other public hospital in the ACT):
Call From Father
father feels that J will go to calvary voluntarily
plan
- await outcome of attemp[t] at calvary admission (father will let Catt know later today)
At trial Mr Crowley described his report to Ms Williams as follows:
I reported that Jonathan had a good night and at present he was peaceful and there was no need for an involuntary retreat or entry to the hospital and that I’d keep them advised. And they said they’d keep in touch.
And did you tell them what your intentions were about getting further treatment for Jonathan?---Yes. I told them I was keen to get him to Calvary, because I knew Calvary from his brother Mark.
In cross-examination, Mr Crowley said:
I advised them that [Jonathan’s] condition had not deteriorated and that I’d report to them as soon as there was any sign of deterioration.
Mr Crowley gave evidence that in the course of this call he had been asked whether Jonathan was a danger to himself or to anyone else, and he “had to say as far as I was concerned he wasn’t a danger to himself and he wasn’t a danger to anyone else”. This is not mentioned in Ms Williams’ record of Mr Crowley’s call, but such questions, and answers to the effect mentioned by Mr Crowley, are noted in the ACTMH record of a much later call said by ACTMH to have been made to Mr Crowley.
Mr Crowley said he initiated the phone call to ACTMH on Tuesday morning because:
I just wanted to make them aware that the situation hadn’t deteriorated before they went to the trouble of, say, coming out with the police.
Mr Crowley agreed that at that point he believed there was no need for the Crisis Team to come and he agreed that he probably said to ACTMH:
Look there’s no need for you to come out at this stage, we’re still negotiating or talking to Jon and getting him in the state of mind to go to Calvary. ... He’s peaceful, he’s not aggressive, he’s not harmful to himself or anyone else. ... We’ll take some more time.
Mr Crowley said that he still intended to get Jonathan to Calvary that day, that he had made that intention clear to ACTMH, and that he had told them that he would be in touch again if and when Jonathan’s condition deteriorated. He was not asked what he understood to be the symptoms of a deterioration. Nothing in the ACTMH records of the Monday evening assessment indicates that the Crowleys had been told about any warning signs they should be alert for; presumably the questions about the risk of self-harm and harm to others (if and when they were actually asked) gave some hint of the sorts of risks that could emerge, but without any advice about advance warning signs for such risks.
Michael O’Connor’s visit
By mid-morning on the Tuesday, except that Mrs Crowley had begun to do Jonathan’s laundry so that he would have clean clothes to take with him, Jonathan’s parents had not done anything about getting him to hospital; this was because, in Mrs Crowley’s words, “unfortunately this visitor had come”.
There are several uncertainties about Michael O’Connor’s visit, including the timing of his departure relative to other events and the point during that visit when Jonathan had come in to speak to him. Mr O’Connor was not called to give evidence and nor did anyone tender Mr O’Connor’s “report”, referred to by Keith Crowley in his second police interview.
Mr Crowley said that Michael O’Connor had come over “late morning” (around 11:30 am) and stayed until lunchtime (a bit after 1:00 pm), leaving then because he had an appointment at 2:00 pm.
Mr Crowley said that Jonathan had come in to say hello about 10 minutes before Mr O’Connor left. He noted that Mr O’Connor in his “report” had mentioned that Jonathan “looked a bit stressed”. He did not appear to Mr Crowley to be holding the kendo stick at that point. Mrs Crowley confirmed that while Mr O’Connor was there, Jonathan had come in to say hello to him, without anything in his hands.
Mrs Crowley had made sandwiches for herself, Mr Crowley and Mr O’Connor, and had then made some for Jonathan. When she took them out to the caravan, Jonathan was not there. She went straight back inside and told her husband. Mr Crowley said that his wife had taken Jonathan’s lunch out to the caravan 10 or 15 minutes after Mr O’Connor had left, but Mrs Crowley said that when she went back to the house to report Jonathan’s absence, Mr O’Connor “was about to leave anyway so he left”. When Mrs Crowley reported Jonathan’s absence, Mr Crowley said that he would get into the car and drive around looking for Jonathan; he estimated that he had done so four or five minutes after Mrs Crowley’s report.
Jason Morris’s observations of Jonathan
Jason Morris was a rehabilitation officer with ACTMH at the time of the shooting, based at the Woden office of ACTMH. His previous experience included three years working in the psychiatric unit of The Canberra Hospital. On the Tuesday, Mr Morris was to take Mark Crowley, Jonathan’s brother, to a rehabilitation activity. He also had to pick up other rehabilitation clients for the same activity. Mr Morris had met Jonathan over the two years that he had been providing rehabilitation support to Mark. He got on well with the Crowley family, felt he was welcome in the house, and recognised that the exchange of information with the family was important. His previous dealings with Jonathan had involved pleasant conversations while he was waiting to pick up Mark, and Mr Morris was not aware that Jonathan had exhibited any signs of mental illness during his dealings with him.
Jason Morris arrived at the Crowley home on Tuesday at around 10:45 am or possibly a bit later. He was driving a passenger van and had not yet picked up any of his other passengers. While sitting in the van outside the Crowley house waiting for Mark, he saw Jonathan come out onto the road in front of his vehicle. Jonathan was talking to himself and had with him a sword (described by Mr Morris as a reasonably long black item) which he had waved around above his head, although in a demonstrative rather than aggressive way.
Mr Morris thought that Jonathan was “different to his usual self”. He glared at Mr Morris and raised his eyebrows. In cross-examination Mr Morris conceded that Jonathan had raised his fists at Mr Morris. They exchanged gestures, finishing with “thumbs up” gestures, after which Jonathan went back into his caravan.
Mr Morris had not experienced anything like this before, and did not know what to make of it. He thought about going inside to talk to Jonathan’s parents, but was concerned about his obligation to pick up other participants in the rehabilitation activity.
Part 9 – Other matters
Claims of assault and battery
As well as the negligence claims, the last round of pleadings included a claim by the plaintiff that the third defendant, SC Pitkethly, assaulted him with OC spray and a baton, and by shooting him in the neck, and that the plaintiff’s damage was caused by the assault and battery on him by SC Pitkethly. The alleged assault and battery is also relied on in the second defendant’s notice claiming contribution and indemnity from the police, and in its claim against the police in respect of the loss suffered by it as a result of its provision of health care to the plaintiff.
None of these claims was argued in the trial or in subsequent written submissions. The concession made on behalf of the plaintiff that there was no criticism of SC Pitkethly’s use of his gun in the circumstances in which it was used may have been intended as a withdrawal of the plaintiff’s claims in respect of battery constituted by shooting, but nothing was conceded about the claims based on the use of OC spray or the baton, there was no equivalent concession made by the second defendant about any of the weapons in respect of any of its claims, and there was no amendment to the pleadings filed subsequently. For those reasons, I simply note at this stage that in the absence of submissions I have reached no conclusions about any of the claims based on an alleged assault and battery of the plaintiff.
Developments in the law since the end of the hearing
The delay in finalising the judgment in this case has meant that there were some possibly significant developments in the law after the hearing had finished. Several subsequent decisions were drawn to my attention by the parties and have been mentioned in this judgment. Several months before the judgment was finalised, I listed the matter for mention and, among other things, established that none of the parties wanted to make any further submissions in relation to any decisions handed down since the hearing finished.
Part 10 – Conclusions and orders
Conclusions
Accordingly, I find that the first, second and third defendants all owed duties of care to Jonathan, and that each of those defendants breached the duty of care in respects that caused the injury complained of by the plaintiff.
The third defendant breached his duty of care, and the first defendant breached its duty of care vicariously in respect of the actions of the third defendant and SC Ben Willis:
(a) by the third defendant and SC Willis confronting Jonathan without having done, either alone or together, any useful planning or risk assessment, in particular having regard to their knowledge that Jonathan was armed and mentally-disturbed, that a large number of other police officers were closely behind them on the way to Jonathan’s location, and that there were particular risks associated with the apprehension of mentally-disturbed people, and having regard to their belief that Jonathan had already attacked Andrew Oakley twice;
(b) in the manner in which the third defendant and SC Willis confronted Jonathan, specifically by getting out of the car as soon as it stopped and effectively simultaneously, by adopting a threatening pose in standing behind their car doors with OC spray in their hands ready for use, and by shouting at Jonathan (simultaneously, until SC Pitkethly realised that was inappropriate) to drop his weapon and get on the ground.
The second defendant breached its duty of care by:
(a) the failure of ACTMH staff to pursue Jonathan’s admission to hospital on Tuesday morning;
(b) Jason Morris’s failure to report Jonathan’s odd behaviour to the Crowley family; and
(c) the failure of ACTMH staff, namely Ms Twell and her colleagues, to pursue the reasons for the police interest in the person the police had asked about and to raise the possibility that Jonathan was the person police were interested in with the police, either immediately or after pursuing that possibility with the Crowley family.
The first, second and third defendants are liable to the plaintiff for the injuries suffered when he was shot by the third defendant.
Orders
There will be judgment for the plaintiff against all three defendants for an amount of damages to be ordered; as noted at [17] above, I understand that the amount of damages will be agreed between the parties, and I shall hear the parties as to the agreed amount.
Although counsel for the first and third defendants made brief submissions about the appropriate contributions of the several defendants if all of them were found liable, those submissions were made on the basis of assumptions that do not accord in all respects with my findings of fact and conclusions. Counsel for the second defendant did not make any submissions about apportionment. Accordingly, I shall hear the defendants about the appropriate orders in respect of apportionment.
The parties have leave to apply to the court in respect of the claims not addressed in this judgment.
I certify that the preceding one thousand and ninety two (1093) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 27 May 2011
Counsel for the plaintiff: Mr Gross QC with Mr Dixon
Solicitor for the plaintiff: Collaery Lawyers
Counsel for the first defendant: Mr Semmler QC with Mr Stretton
Solicitor for the first defendant: Australian Government Solicitor
Counsel for the second defendant: Mr Molomby SC with Mr Watts
Solicitor for the second defendant: ACT Government Solicitor
Counsel for the third defendant: Mr Semmler QC with Mr Stretton
Solicitor for the third defendant: Australian Government Solicitor
Dates of hearing: 19, 20, 21, 22, 23, 26, 27, 28, 29 May, 6 June 2008
24, 25, 26, 27 February 2009
2, 3, 4, 5, 10, 11, 12, 13, 16, 17, 18, 19 March 2009, 7 May 200923 November 2010 (mention)
Date of judgment: 27 May 2011
Appendix A – Witnesses and evidence
Part 1 – Witnesses
The witnesses named below gave oral evidence in the order listed.
| Name | Description | Called by ... | |
| 1 | Keith Hamilton Crowley | Father of plaintiff | P |
| 2 | Paloma Crowley | Mother of plaintiff | P |
| 3 | Norman Hazzard | Expert witness (policing) | P |
| 4 | Jonathan Anthony Crowley | Plaintiff | P |
| 5 | Mervyn John Carnall | Police officer (OSG team leader) | P |
| 6 | Jonathon Phillips | Expert witness (mental health) | D1&3 |
| 7 | Richard William Jennings | Expert witness (policing) | P |
| 8 | Jason John Morris | Employee of ACTMH | P |
| 9 | William Reginald Arthur Atkinson | Member of the public | D1&3 |
| 10 | Leonard Benjamin Richter | Air-conditioning installer (son of Allan Richter)` | D1&3 |
| 11 | Peter Mark Parker Smith | Expert witness (policing) | P |
| 12 | Allan Charles Richter | Air-conditioning installer (father of Leonard Richter) | D1&3 |
| 13 | Andrew David Oakley | Postman | D1&3 |
| 14 | Glen Thomas Pitkethly | Police officer | D1&3 |
| 15 | Benjamin Jeffrey Willis | Police officer | D1&3 |
| 16 | Paul Adrian Bailey | Police officer | D1&3 |
| 17 | Geoffrey Esmond Schuberg | Expert witness (policing) | D1&3 |
| 18 | Darren John Rath | Police officer/Expert witness (policing) | D1&3 |
| 19 | James Archibald Telfer | Expert witness (mental health) | D2 |
| 20 | Anthony Quinn | Surveyor | D2 |
Part 2 – Police interviews
The people named below took part in police interviews, transcripts of which were in evidence.
| Name | Date of interview |
| Plaintiff | 11 December 2001 |
| Plaintiff | 7 March 2002 |
| Mr Keith Crowley (father) | 14 January 2002 |
| Mr Keith Crowley (father) | 7 March 2002 |
| Mrs Paloma Crowley (mother) | 14 January 2002 |
| Ms Camille Corson (sister) | 12 December 2001 |
| Katherine Arnold | 11 December 2001 |
| Angela Badalassi | 12 December 2001 |
| Michele Belford | 12 December 2001 |
| Roslyn Brice | 12 December 2001 |
| Varvara Carl | 16 December 2001 |
| Margaret Day | 12 December 2001 |
| Peter Day | 12 December 2001 |
| Diane Exon | 11 December 2001 |
| Paul John Foley | 16 December 2001 |
| Maria Ghyson | 11 December 2001 |
| Akim Halank | 11 December 2001 |
| Roma Hatchard | 12 December 2001 |
| Margaret Healy | 11 December 2001 |
| Desmond Linehan | 11 December 2001 |
| Don McLaglan | 11 December 2001 |
| Mark Norman | 11 December 2001 |
| Andrew Oakley | 11 December 2001 |
| John Payne | 11 December 2001 |
| Sandra Payne | 11 December 2001 |
| Allan Richter | 11 December 2001 |
| Leonard Richter | 11 December 2001 |
| Nicole Scargill | 11 December 2001 |
| Oranuch Sparke | 11 December 2001 |
| Sue Stanwell | 11 December 2001 |
| James Wright | 13 December 2001 |
| Senior Constable Glen Pitkethly | 11 December 2001 |
| Senior Constable Glen Pitkethly | 25 March 2002 |
| Senior Constable Ben Willis | 11 December 2001 |
| Senior Constable Ben Willis | 21 March 2002 |
| Senior Constable Paul Bailey | 11 December 2001 |
| Constable Phillip Eagles | 14 December 2001 |
| Constable Julian Mann | 14 December 2001 |
| Sergeant Geraldine Morris | 11 December 2001 |
| Sergeant Geraldine Morris | 19 March 2002 |
| Sergeant Geraldine Morris | 20 March 2002 |
| Det Snr Con Mervyn Carnall | 19 December 2001 |
| Det Snr Con Mervyn Carnall | 20 March 2002 |
| Snr Con Martin Beresford | 13 December 2001 |
| Snr Con Martin Beresford | 21 December 2001 |
| Det Snr Con Thomas Charles-Jones | 13 December 2001 |
| Det Snr Con Thomas Charles-Jones | 18 December 2001 |
| Constable Guy Davy (missing pages 2, 4, 6 and 8) | 19 December 2001 |
| Det Snr Con John Dougan | 23 December 2001 |
| Constable Mark Richardson | 21 December 2001 |
| Constable Craig Skinner | 12 December 2001 |
| Constable Michael Towart | 19 December 2001 |
| Simon Tillmanns | 3 January 2002 |
| Jeffrey Linkston | 11 March 2002 |
| Serena Buxton | 7 January 2002 |
| Edwin Fuderer | 23 January 2002 |
| Rebecca Kirk | 24 January 2002 |
| Paul McFawn | 20 February 2002 |
| Gareth Williams | 23 January 2002 |
| Sarah Benson | 5 March 2002 |
| Benjamin Kwok | 13 March 2002 |
| David Royds | 15 March 2002 |
| Peter Collins | 25 February 2002 |
| Stephen Fekete | 13 December 2001 |
| Greg Addison | 13 December 2001 |
| Michelle Blewitt | 12 December 2001 |
| Phillip McHugh | 13 December 2001 |
| Howard Wren | 12 December 2001 |
| Jason Morris | 22 January 2002 |
| Andrea Twell | 23 January 2002 |
| Karen Eggins | 4 February 2002 |
| Jenny Williams | 27 February 2002 |
Appendix B – Expert witnesses: qualifications and experience
Expert witnesses – policing
Richard Jennings
Richard Jennings works as a security and safety risk analyst. He was a member of the London Metropolitan Police Service from 1963 until 1978. He worked initially on “general crime duties” but later as a senior detective attached to specialist investigative units dealing with matters such as burglary, robbery, fraud, organised crime, murder and counter terrorism. Mr Jennings’ experience included a number of situations involving persons displaying “unstable psychiatric behaviour”; at one stage he was in charge of a police station covering London’s largest psychiatric hospital, and on a number of occasions personally attended incidents in which hospital patients had got themselves into violent situations and need to be taken back to hospital.
In 1978 he came to Australia to join Websters Investigation and Security Group. In 1998 he became Managing Director of Jennings Security Risks, a private security consultancy business, and began giving evidence as an expert witness. In 1993 he worked on contract as Security Project Manager for the NSW Police Service, reviewing and reorganising the Security and Safety Department of the NSW Police Service, and providing new training and crisis management plans for high risk facilities such as police premises.
Mr Jennings holds various certificates including Certificate IV in Security Risk Management and an Advanced Diploma in Risk Management, as well as security and private inquiry agent licences under NSW legislation.
Tertiary study
- Bachelor of Arts (Archaeology and Paleoanthropology) – University of New England
Relevant employment
- 1963-1978 – London Metropolitan Police Service
- 1978-2005 – employment as investigator and security consultant.
Peter M Smith
Mr Smith is the managing director of Ulong Risk Management, where he works as a senior consultant and senior defensive tactics instructor. He was a member of the AFP for five years, resigning in 1988; he had little operational policing experience while in the AFP and has had none since. His expertise is in the use of force in the apprehension of mentally ill persons and more generally in the use of force to deal with resistive behaviour in making arrests. Mr Smith holds various certificates including Certificate IV in Security Risk Management and in Investigative Services and Certificate III in Security Guarding.
Tertiary study
- Bachelor of Science (Security) – Edith Cowan University
Relevant employment
- 1983-1988 – Australian Federal Police (general duties policing, Organised and Major Crime Units)
- Since 1988 – Security Consultant to a wide range of public and private sector clients
- Since 1988 – Training provider (design, development and delivery) to public and private sector clients, including law enforcement organisations, relating to operational safety and defensive tactics, critical incident and emergency management, counter-terrorism, security risk management and investigations
Norman Keith Hazzard
Mr Hazzard was a member of the New South Wales Police Force for 41 years and retired in March 2006 as the Assistant Commissioner, Counter Terrorism. He has developed a university course for police negotiators to a Masters degree level, which is now part of the university program for police across Australia. His work has included consideration of cases involving responses by police to a situation where someone has to be arrested.
Mr Hazzard has not operated as a general duties police officer since 1969, but he was involved with the NSW State Protection Group until around 2001, during which time he interacted frequently with general duties police officers. Most of his experience has been in specialist groups which were better resourced and operated with more planning than is the case for general duties policing.
Relevant employment
- New South Wales Police Force for 41 years
- 1974 – Special Weapons and Operations Squad (SWOP) - terrorism training and high-risk incident resolution
- 1979-1979 - Police Negotiator – New South Wales Police Negotiation Unit
- 1988-1991 – Head police negotiator – New South Wales Police Negotiation Unit
- 1991 – Tactical Operations Commander – State Protection Group
- 1992 – Commander – State Protection Group
- 2003 – Assistant Commissioner – Counter Terrorism
- 2006 – Consultant to Commissioner of Police to conduct review into police response to the “Cronulla Riots”
Geoffrey Esmond Schuberg
Mr Schuberg is a retired Assistant Commissioner of Police, New South Wales. He began his career doing general uniformed duty, spent some time in Vietnam with the Australian Military Police, and returned to general duties policing. He is a qualified weapons instructor. He has instructed many police in the use of firearms, including by reference to the use of force protocols. From 1991 until he retired in 1997, he was involved, both as Director of Investigations at ICAC and from 1994 as Commander Professional Responsibility (at Assistant Police Commissioner level), in investigating complaints about the use of force by police officers. In 1997 he was awarded an Australian Police Metal for integrity and good police work over a number of years.
In 2001 he was appointed to the NSW Police Minister’s Advisory Council, which provided advice on critical areas of operational policing in order to increase police effectiveness and boost public confidence in policing.
Relevant employment
- From 1973 – General investigative duties, later specialising in investigation of organised crime
- Mid-late 1980s – Senior Investigator – National Crime Authority and NSW State Crime Commission. At this time he was trained and qualified in all aspects of operational policing
- 1991 – Independent Commission Against Corruption (ICAC)
- 1993 – Commander, Police Internal Affairs Branch (Chief Superintendent)
- 1994 – Commander, Professional Responsibility (Assistant Police Commissioner), Police Internal Affairs Branch
Darren John Rath
Federal Agent Darren Rath has been a member of the AFP since 1984. When he gave evidence in 2009 he was Senior Liaison Officer – Australian Federal Police HCMC Post, Vietnam. As a member of the AFP, Mr Rath had had considerable experience, and has acquired more structured knowledge, of the appropriate standards for police in operational roles. He had conducted reviews into two police shootings, including one in the ACT in 1995, and had also been involved, sometimes as the leader, in developing training and operating principles for the AFP. From 1996 he led a project to re-vamp the AFP’s operational safety training program and to implement it into the AFP’s operating doctrine, which he said was “well embedded” by December 2001.
Tertiary study
- Bachelor of Engineering (Chemical) – University of Wollongong and University of New South Wales.
Relevant employment
- 1985, 1986-1987 – General Duties – ACT Policing
- 1994-1997 – ACT Policing (including conducting the review of the shooting by police of Warren I’Anson)
- 1998-1999 – Training Delivery Team, Australian Federal Police College, Barton. Included designing and developing the “Defensive Skills/Firearms Instructor Program” and “Police Negotiation Team Training Program”.
- 2001-2002 – Team Leader – School of Operational Safety and Police Practice
- 2002-2004 – Duties included conducting the review of the police shooting of Malcolm Albert Hay in North Ryde, NSW on 13 December 1999
- 2004-2005 – Officer in Charge, Tuggeranong Police Station
Expert witnesses – mental health
Jonathan Phillips MB BS, FRANZCP
Dr Phillips has been a psychiatrist since 1973. He has worked as a general psychiatrist and now practices in Sydney as a consultant psychiatrist, continuing to see some patients. In 2008 he was constructing a Master’s degree course in forensic mental health for the University of NSW.
Positions held (as at 2008):
- Clinical Associate Professor, University of Adelaide
- Associate Professor, James Cook University
Previous positions and offices
- Director of Mental Health and Chief Psychiatrist, South Australia (for 2 years; this involved Dr Phillips in developing a Memorandum of Understanding between Mental Health South Australia and the South Australian police service)
- President of the Royal Australian and New Zealand College of Psychiatrists;
- President of the Committee of Presidents of the Australian Medical Colleges (which involved Dr Phillips in overseeing standards to be applied by practitioners in the mental health area in Australia).
- Part-time consultant to the North Shore Community Mental Health Service, Sydney. (T327)
James Archibald Telfer MB BS, FRANZCP
Dr Telfer is a medical practitioner specialising in psychiatry. He has had many roles at Royal North Shore Hospital. Since 1999 he has worked with three community health teams in a service integrating the Hospital Admission Unit at RNSH with the community health services under a single administration. Dr Telfer has also consulted to community health teams in western New South Wales. (1632)
Positions held (as at 2009):
- Consultant Psychiatrist, Royal North Shore Hospital and Ryde Mental Health Service (seeing about 40 outpatients each month)
- Since 1999 – Director of Psychiatric Services, Emergency Department, Royal North Shore Hospital
- Since 1999 – Clinical Lecturer, Faculty of Medicine, University of Sydney (Northern Clinical School)
- Since 1983 – Medical Superintendant, CJ Cummins Unit, RNSH (responsible for up to 14 in-patients, mostly detained under the NSW Mental Health Act; the unit serves a population of about 200,000).
Previous position
- 1991-1998 – Deputy Director, Royal North Shore Hospital and Community Health services.
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