State of New South Wales v McMaster
[2015] NSWCA 228
•10 August 2015
|
New South Wales |
Case Name: | State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster |
Medium Neutral Citation: | [2015] NSWCA 228 |
Hearing Date(s): | 18 and 19 September 2014 |
Decision Date: | 10 August 2015 |
Before: | Beazley P at [1]; |
Decision: | 1. Appeal allowed in each matter; |
Catchwords: | APPEAL – where plaintiff shot by police officer responding to home invasion – challenges to factual findings |
Legislation Cited: | Civil Liability Act 2002 (NSW) |
Cases Cited: | Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 |
Texts Cited: | Balkin & Davis, Law of Torts, 4th ed, LexisNexis Butterworths |
Category: | Principal judgment |
Parties: | 2013/385833 |
Representation: | Counsel: |
File Number(s): | 2013/3858332013/3858352013/386015 |
Decision under appeal: | |
Court or Tribunal: | District Court |
Citation: | [2013] NSWDC 244 |
Date of Decision: | 13 December 2013 |
Before: | Mahony DCJ |
File Number(s): | 2012/27695 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the judgment]
Three civil suits were brought against the State of New South Wales (the State) in relation to the shooting of Justin McMaster by a police officer, Constable Fanning. When the shooting occurred, Constable Fanning, with a second police officer, Constable Kleinman, was responding to a violent home invasion occurring at the premises at which Justin was living. Justin was (or was contended to be) running down the road in from of the premises towards Constable Kleinman when he was shot. Georgia Karakizos, Justin’s mother, and Kayla McMaster, his sister, also resided at the premises and were present at the shooting.
Justin brought claims in negligence and trespass to the person. The trial judge, Mahoney DCJ, held that no duty of care arose in negligence, such a duty being inconsistent with Constable Fanning’s obligations as a police officer. However, his Honour found that the State was liable to Justin in battery, and awarded him a sum of $512,450. Georgia and Kayla each brought proceedings against the State under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4, claiming damages for nervous shock, depressive illness and associated sequelae. They were also successful at trial, and were awarded damages in the sums of $89,910 and $132,420 respectively.
On the appeal, the State challenged a number of the trial judge’s factual findings relating to whether Constable Fanning was acting in defence of Constable Kleinman when he shot Justin. The State also contended that the trial judge erred in failing to find that its liability to Justin in battery was precluded by a common law principle analogous to that by which it was found that no duty of care arose. It contended that the defence of self-defence was made out, either at common law or pursuant to s 52 of the Civil Liability Act 2002 (NSW), which requires that the conduct to which the defendant was responding was “unlawful”. It further submitted that the defence of necessity was made out, and that Constable Fanning’s actions were lawful pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 230. By notice of contention, Georgia and Kayla contended that, separate to their claim under the Law Reform (Miscellaneous Provisions) Act 1944, they had a cause of action at common law for damages for nervous shock derived from Johnson v The Commonwealth (1927) 27 SR (NSW) 133 which was proven on the facts established at trial. The quantum of damages awarded to each party was also in issue.
Per Beazley P, McColl and Meagher JJA, allowing the appeal in each matter:
Beazley P (McColl and Meagher JJA agreeing):
(1) Police officers exercising force in the course of their duties are not excused from liability for battery by reason of an honest belief based on reasonable grounds that the force used was necessary to prevent a breach of the peace. The existence of any such common law principle is not supported by authority. [36]-[39].
Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370; State of NSW v Tyszyk [2008] NSWCA 107; State of New South Wales v Spearpoint [2009] NSWCA 233.
(2) The trial judge was in error in his findings as to the location of the police officers and Georgia and Kayla when Justin was shot and in finding that Justin was not running towards either of the officers at that time. His Honour should have found that Justin was 2-3m away from Constable Kleinman when he was shot. [112]; [121]-[127]; [349]-[351]; [353].
Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167
(3) The trial judge was in error in finding that Justin did not pose a direct threat to Constable Kleinman when he was shot. This followed from the circumstance that Justin was running towards Constable Kleinman, holding a metal rod and yelling and it was not clear that Constable Kleinman was able to defend herself with her Taser. Further, the trial judge ought to have found that Constable Fanning acted in order to defend Constable Kleinman and that he subjectively believed that his actions were necessary. [127]-[131]; [140]-[143]; [352].
(4) At common law, the defence of self-defence in the civil context is made out if the defendant subjectively believed, on reasonable grounds, that what he did was necessary for the protection of himself or another. The proportionality of the defendant’s response to the harm threatened is a factor to be taken into account in the application of that test but is not inherently determinative. In light of the facts as they ought to have been found, the defence of self-defence at common law was made out. [166]-[167]; [170]; [174]-[175]; [180]-[184]; [361]-[365].
Underhill v Sherwell [1997] NSWCA 325; Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645; Watkins v State of Victoria [2010] VSCA 138; 27 VR 543; Miller v Sotiropoulos [1997] NSWCA 204; George v Rockett [1990] HCA 26; 170 CLR 10; Lean v R (1993) 66 A Crim R 296.
(5) Justin was acting unlawfully by committing an assault in contravention of the Crimes Act 1900 (NSW), s 61 at the time he was shot. Responsibility for that assault was not precluded by the operation of s 418 as he was not acting to prevent any particular attack. It followed that the State made out the defence of self-defence pursuant to s 52 of the Civil Liability Act. [190]-[199].
R v Knight (1988) 35 A Crim R 314; Vallance v The Queen [1961] HCA 42; 108 CLR 56; Blackwell v The Queen [2011] NSWCA 93; 81 NSWLR 119; Macpherson v Brown (1975) 12 SASR 184; Pemble v The Queen [1971] HCA 20; 124 CLR 107; Taikato v The Queen [1996] HCA 28; 186 CLR 454.
(6) “Unlawful” as it appears in s 52 of the Civil Liability Act extends to conduct which is purely tortious such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort. Justin was at least negligent as to the commission of a civil assault when he was shot and s 52 therefore applies on that additional basis. [200]-[209].
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; SAS Trustee Corporation v Woolard [2014] NSWCA 75; Barton v Armstrong [1969] 2 NSWR 451; Venning v Chin (1974) 10 SASR 299; Stanley v Powell [1891] 1 QB 86; McHale v Watson [1964] HCA 64; 111 CLR 384; Macpherson v Brown (1975) 12 SASR 184.
(7) The defence of necessity requires that there be a situation of immediate danger and the actions taken, as viewed at the time they were taken, were reasonably necessary. It is not an answer to the defence that, in the event, the actions were not necessary. The circumstances of the shooting, this defence was made out. [214]-[225].
Dehn v Attorney-General (1988) 2 NZLR 564; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; Southwark London Borough Council v Williams [1971] Ch 734; Cope v Sharpe (No 2) [1912] 1 KB 496; State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496.
(8) The phrase “act, neglect or default”, as it appears in the Law Reform (Miscellaneous Provisions) Act 1944, s 4 is not limited to cases in which the wrongful act was negligent, such that the section may apply in any case in which a wrongful act gives rise to civil liability. However, as in this case there was no wrongful act, no liability to Georgia or Kayla arose. [234]-[249].
Gifford v Strang Patrick [2003] HCA 33; 214 CLR 269; Chester v Waverley Corporation [1939] HCA 25; 62 CLR 1; Bourhill v Young [1943] AC 92; Scala v Mammolitti [1965] HCA 63; 114 CLR 153.
(9) The cause of action at common law for which Georgia and Kayla contended was not pleaded below and raised legal and factual questions which were not explored at trial. It followed that leave should be refused to rely upon the notices of contention. Further, there was no authority that clearly demonstrated the independent existence of the cause of action. [256]-[265]; [273]-[274].
Johnson v The Commonwealth (1927) 27 SR (NSW) 133; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; State of New South Wales v Spearpoint [2009] NSWCA 233; Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254; University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68; Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Bibby Financial Services Australia Pty Ltd Sharma [2014] NSWCA 37; Wilkinson v Downton [1897] 2 QB 57; Jaensch v Coffey [1984] HCA 52; 155 CLR 549; Magill v Magill [2006] HCA 51; 226 CLR 551; Nationwide News v Naidu [2007] NSWCA 377; Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92.
(10) The trial judge was not in error in the awards of general damages or damages for loss of earning capacity he made to Justin. However, particularly as the shooting occurred without intent to do wrong and in the heat of a particularly difficult moment, his Honour erred in awarding aggravated and exemplary damages. [285]-[288]; [296]; [303]; [309].
Wilson v Peisley (1975) 50 ALJR 207; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; State of New South Wales v Abed [2014] NSWCA 419; (2015) Aust Torts Reports 82-195; Moran v Mahon [1985] 3 NSWLR 700; House v The King [1936] HCA 40; 55 CLR 499; Costa and Another v The Public Trustee of NSW [2008] NSWCA 223.
(11) The trial judge’s award of general damages to Georgia was too high in the context of other awards his Honour made and too high to reasonably reflect the harm caused, such that appellate intervention was warranted. [321]-[323].
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118; House v The King [1936] HCA 40; 55 CLR 499.
(12) The trial judge’s award of general damages to Kayla was excessive in the circumstances that her symptoms had substantially resolved and at least some of what she suffered was attributable to the home invasion rather than the shooting. His Honour did not err in the determination of damages for past loss of wages. [333]-[334]; [342]-343].
Watts v Rake [1960] HCA 58;108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Chapman v Hearse [1961] HCA 46; 106 CLR 112.
Beazley P (Meagher and McColl JJA not deciding):
(13) LEPRA, s 230 makes lawful what would or may otherwise be contrary to law, whether criminal or civil. In the circumstances of the shooting, s 230 acts to preclude the State’s liability. [226]-[233].
Taikato v The Queen [1996] HCA 28; 186 CLR 454; Crafter v Kelly [1941] SASR 237; Halliday v Nevill [1988] HCA 80; 155 CLR 1; Coco v R [1994] HCA 15; 179 CLR 427.
JUDGMENT
INDEX
| BEAZLEY P | 1 | |
| Introduction | 2 | |
| Trial judge’s factual findings | 13 | |
| Issues on the appeal | 14 | |
| Some introductory comments | 17 | |
| Was the State protected from liability for battery? | 20 | |
| Was Constable Fanning acting in self-defence? | 40 | |
| The evidence | ||
| The transcript of the police radio recording | 43 | |
| Constable Fanning’s ERISP | 46 | |
| Constable Kleinman’s ERISP | 76 | |
| The walk through video | 87 | |
| Justin’s hospital statement and evidence at trial | 92 | |
| Kayla’s evidence | 101 | |
| Georgia’s evidence | 104 | |
| Jasmin’s evidence | 111 | |
| The challenged facts (11), (13) and (18) and whether Justin posed a direct threat | 112 | |
| Challenge to the finding that Constable Fanning was not acting in defence of Constable Kleinman | 133 | |
| Self-defence at common law | ||
| The common law test for self-defence | 144 | |
| Submissions | 178 | |
| Consideration | 180 | |
| Self-defence pursuant to the Civil Liability Act 2002 (NSW), s 52 | 185 | |
| Did Justin’s actions amount to criminal conduct? | 190 | |
| Does “unlawful” in s 52 extend to purely tortious conduct? | 200 | |
| Did Justin’s conduct constitute a trespass to the person? | 205 | |
| Interaction between s 52 and the common law test for self-defence | 210 | |
| Limitation of damages pursuant to the Civil Liability Act, s 53 | 212 | |
| The defence of necessity | 214 | |
| Were Constable Fanning’s actions lawful pursuant to LEPRA, s 230? | 227 | |
| Georgia and Kayla’s claims for compensation | ||
| The application of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4 | 235 | |
| The proposed notice of contention | 251 | |
| Damages | 276 | |
| Damages: Justin | 277 | |
| General damages | 278 | |
| Future loss of earning capacity | 290 | |
| Aggravated and exemplary damages | 298 | |
| Damages: Georgia | 311 | |
| Damages: Kayla | 325 | |
| General damages | 326 | |
| Past loss of wages | 336 | |
| Conclusion | 345 | |
| McCOLL JA | 348 | |
| MEAGHER JA | 359 | |
BEAZLEY P:
Introduction
On 26 September 2011, at approximately 12:35 am, Justin McMaster was shot in the abdomen by a New South Wales police officer, Constable John Fanning. Present at the scene of the shooting were Justin McMaster’s mother, Georgia Karakizos and his sister, Kayla McMaster. For the purposes of these reasons, I will refer to each of these persons as Justin, Georgia and Kayla respectively. Another police officer, Constable Natasha Kleinman, was also present.
The shooting occurred in circumstances where the police had been called to attend a home invasion involving a brutal physical assault on Georgia and a serious assault on Kayla, who had a knife held to her throat and was sexually assaulted. Georgia’s younger son, an infant, also had a knife held to his throat. The intruders, two at least of whom were known to Justin, were demanding money.
Justin and his de facto partner, Jasmin Potts, Georgia and Kayla lived at 4 Holmes Street. Jasmin, who was inside a granny flat attached to the residence at the time of the invasion, telephoned 000 and reported the invasion. Constables Fanning and Kleinman, who were on duty, responded to a police radio message in respect of the incident. The information they received included that the intruders had a knife.
When the police officers arrived in Holmes Street, they parked between houses numbered 6 and 8. Upon observing the presence of the police van, Kayla ran towards it. Georgia, who had been hiding in the house next door, 6 Holmes Street, ran down the street almost immediately after Kayla. The two police officers were speaking to Georgia and Kayla outside 6 Holmes Street, when Justin emerged from number 4 and ran down the road, carrying a curtain rod, which he had grabbed from inside the granny flat. The curtain rod was made of aluminium and was 1.5 m long and 1-2 inches in diameter.
Constable Fanning shot Justin as Justin approached the group. Constable Fanning estimated that the time between their arrival on the scene and the moment Justin was shot was no more than two minutes. This was verified by the transcript of the police radio call.
The trial judge, at [5], described Georgia and Kayla as being “visibly upset and somewhat hysterical, and were having difficulty communicating to the officers what exactly had occurred”. His Honour, at [6], described what happened at the scene in these terms:
“… Justin McMaster emerged from the front yard of number 4 Holmes Street carrying the curtain rod. With him, and slightly behind him, was Jasmin Potts, who was carrying a knife. The facts of the matter are very much in dispute, however, Justin was calling out ‘Where's my sister?’ and ran down Holmes Street in the direction of the Police vehicle. Jasmin followed Justin, but she was on the nature strip. The street lighting was not good, and as Justin approached the Police, he was told to stop and drop his weapon. Justin McMaster, who had not dropped the curtain rod he was carrying, in his left hand, was shot by Constable Fanning, who had discharged a single round from his service pistol, striking Justin in the stomach.”
Justin, Georgia and Kayla each brought proceedings against the State. Pursuant to the Civil Liability Act 2002 (NSW), s 3B, the provisions of the Act, save for the provisions relating to self-defence contained in Pt 7, had no application to the claim: see Dean v Phung [2012] NSWCA 223; State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168.
Justin alleged that the action of Constable Fanning in shooting him constituted an assault and battery and trespass to the person. Justin also brought a case in negligence, but that case was rejected by the trial judge and is not pursued on the appeal.
Georgia and Kayla brought proceedings against the State under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4, claiming they had suffered severe nervous shock and depressive illness and associated sequelae as a consequence of being present when Justin was shot. Section 4 was repealed in 2002, but Georgia and Kayla have the benefit of the provision pursuant to the provisions of the Civil Liability Act, Sch 1, cl 11.
The trial judge found the State liable to Justin on the basis that Constable Fanning had committed a deliberate assault and battery and trespass to his person. His Honour awarded damages to Justin the sum of $512,450. In finding for Justin, his Honour rejected the State’s defence of self-defence and its argument that the State was entitled to a common law immunity for the actions of the police officers whilst engaged in the police operation and in activities for the suppression of crime.
Georgia and Kayla also succeeded in their claims. His Honour awarded damages to Georgia damages in the sum of $89,910 and Kayla in the sum of $132,430. As the award in favour of Georgia was less than $100,000, she requires leave to appeal. Leave should be granted. Her case involves exactly the same factual matters as the cases of Justin and Kayla and the legal issues in her case are the same as in Kayla’s. The matter is also one of importance in the administration of justice. All three cases raise questions as to the circumstances in which the State may be liable for the actions of a police officer in the course of responding to a report of a serious crime being committed. For the reasons that follow, I would allow the State’s appeal in each matter, with costs.
Trial judge’s factual findings
In reaching his conclusion that Justin had proved his case in assault, battery and trespass, the trial judge held, at [177], that certain specific facts had been established. It is convenient to set out those factual findings at this early stage, as they are not only a statement of the essential factual background, but the State’s appeal is directed in a significant way to establishing error in respect of three of those findings. The findings were as follows:
“(1) Both Kayla and Georgia were subjected to violent and terrifying assaults during the home invasion which left them highly traumatised.
(2) Justin McMaster observed his sister in a highly vulnerable state and was very concerned for her welfare.
(3) Justin McMaster was acting courageously in an attempt to free Kayla, by arming himself with the curtain rod, and returning to the front of the property.
(4) Justin McMaster was observed by Constable Fanning running out along the driveway of number 4 Holmes Street and onto the roadway.
(5) At the time he first saw him, Constable Fanning drew his service revolver, not knowing that he was not an offender, but Kayla’s brother.
(6) At that time, both Kayla and Georgia were on the road, at the boundary of numbers 6 and 8 Holmes Street, talking to Constable Fanning and Constable Kleinman.
(7) The Police vehicle was parked outside number 8 Holmes Street, and did not have its lights illuminated.
(8) The street lighting was such that two lights shed some light on Holmes Street between number 4 and number 8. The street was not in darkness.
(9) There was good lighting at the front of the premises at number 4 Holmes Street which allowed Justin McMaster to be seen as he emerged along the driveway.
(10) Justin McMaster was holding the curtain rod in his left hand as he ran at about waist height. This meant that it extended well above his shoulder.
(11) Both Constable Fanning and Constable Kleinman were standing towards the western gutter of Holmes Street. Constable Fanning was in front of, and to the left of Constable Kleinman.
(12) Constable Fanning could not see what Constable Kleinman was doing, although she was in his peripheral vision.
(13) Justin McMaster ran down the middle of Holmes Street. He was at no time running towards either Constable Fanning or Constable Kleinman.
(14) The manner in which Justin McMaster held the curtain rod did not change.
(15) Constable Fanning shouted out ‘Stop Police, stop’.
(16) Constable Kleinman said ‘Put it down, put it down’.
(17) Constable Fanning and Constable Kleinman did not communicate at all with each other as to what action should be taken.
(18) When Justin McMaster was about 5 metres away, Constable Fanning discharged his service pistol towards him, diagonally across Holmes Street.
(19) In doing so, Constable Fanning intentionally lowered his aim, so as to shoot Justin McMaster in the abdomen so as not to kill him.
(20) That occurred just less than two minutes after the Police had arrived in Holmes Street.
(21) Almost simultaneously, Constable Kleinman had her taser aimed at Justin McMaster. That led to the video film being exposed of what occurred after Justin McMaster had been shot.
(22) Constable Fanning, when advised by Georgia that Justin McMaster was her son, said ‘I did not know that’.
(23) At the time he shot him, Constable Fanning believed that Justin McMaster was ‘one of the bad dudes’ and was carrying a stick.
(24) At the time, Constable Fanning was concerned about the report that a knife had been used during the home invasion.
(25) After the shooting, Constable Fanning rendered appropriate aid to Justin McMaster until an ambulance arrived.
(26) Constable Fanning said to Justin McMaster, whilst rendering aid to him, ‘Why didn’t you stop?’
(27) Justin McMaster had no recollection of what occurred from the time he emerged onto Holmes Street.
(28) Justin McMaster did slow down his pace as he ran along Holmes Street. Constable Kleinman referred to him slowing to a ‘swift walk’ in her ERISP interview … and Constable Fanning, consistent with this evidence, told Investigating Police that there had been a reduction in the threat posed by Justin McMaster before he was shot. This could only mean that Justin McMaster had slowed down.”
Issues on the appeal
The State’s amended notice of appeal by which it appeals against his Honour’s judgment in favour of Justin raises the following issues:
(1) Whether the State is protected from liability for the commission of a battery by a police officer in circumstances where the officer holds an honest belief based on reasonable grounds that force used was necessary to prevent a breach of the peace: ground 1;
(2) Whether the trial judge erred in parts of the factual findings at facts (11) and (13) and erred in his factual findings at fact (18) of [177]: grounds 2(a)-(c);
(3) Whether his Honour’s conclusion at [178] that there was “no direct threat by Justin McMaster towards either Constable Fanning or Constable Kleinman at the time he was shot by Constable Fanning” was in error: ground 2(d);
(4) Whether his Honour was in error in finding, at [199], that Constable Fanning shot Justin because he failed to respond to the command of Constable Fanning to stop: ground 2(e);
(5) Whether Constable Fanning was acting in defence of Constable Kleinman at the time that he shot Justin such that liability was precluded by the statutory defence of self-defence pursuant to s 52 of the Civil Liability Act or the common law defence of self-defence: grounds 3 and 4 respectively;
(6) Whether his Honour erred in finding, at [204], that the common law defence of necessity was not made out: ground 5;
(7) Whether his Honour erred in the assessment of the damages awarded to Justin: grounds 6-10;
(8) Whether the award of damages to Justin was precluded by s 53 of the Civil Liability Act; ground 11.
The appeal by the State against his Honour’s judgment in favour of Georgia and Kayla raises the following issues:
(1)Whether the Law Reform (Miscellaneous Provisions) Act, s 4 applies to intentional torts or whether its operation is confined to cases where there has been a breach of a duty of care owed to the primary victim: ground 1 of the draft notice of appeal as against Georgia and ground 1 of the notice of appeal as against Kayla.
(2)Whether his Honour erred in the assessment of damages awarded in favour of Georgia and Kayla: ground 2 of the draft notice of appeal as against Georgia and ground 1 of the notice of appeal as against Kayla.
Georgia and Kayla also seek leave to file a notice of contention in which they claim that, if they are not entitled to damages pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act, they have a separate cause of action at common law which was proven on the facts established at trial.
Some introductory comments
Before dealing with each of the challenges to his Honour’s judgment, it is important to observe at the outset that, despite differences in the recollections of the various witnesses, the trial judge made no adverse credit finding against any of them. Rather, his Honour, at [176], considered that each of the witnesses was doing his or her best to recall the event, which, as he noted, was highly traumatic. His Honour made specific mention of Justin, whom he considered to be “particularly impressive” and who made “appropriate concessions”, although he stated that Justin had no recollection of the critical events. Justin’s evidence was that he remembered the events of the evening up to the point at which he was in the front yard of 4 Holmes Street, immediately prior to running out on to the roadway and being shot.
The State submitted that in these circumstances, it was important to have regard to the contemporaneous records in order to resolve the inconsistencies in the evidence of the witnesses which were critical to the outcome of the case. In particular, the State contended that the ERISPs of the two police officers, a ‘walk through’ of the scene by Constable Fanning recorded on video and an interview conducted with Justin at the hospital provided the most reliable evidence of what occurred at the time that Justin was shot. The State submitted that these contemporaneous accounts were of particular significance given that Georgia and Kayla were in an upset and “hysterical” state.
A question that should also be addressed at the outset and upon which the parties advanced different arguments was the test to be applied in determining the challenge to the trial judge’s factual findings. In my opinion, the test to be applied in this case, given the absence of adverse credit findings, is as stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [27]:
“If, making proper allowance for the advantages of the trial judge, [appellate courts] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
Was the State protected from liability for battery?
The trial judge held that having regard to the principles stated in Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370 the State owed no duty of care to the respondents. That finding is not challenged on appeal.
However, his Honour held at [180] that the State was liable to Justin as Constable Fanning’s action in discharging his firearm and wounding Justin constituted a battery.
The State did not challenge that the nature of the conduct involved in the shooting was a battery. However, it contended that the principles in Crowley applied to protect from liability the intentional actions of police officers performed in the course of carrying out their policing duties.
The trial judge, at [195], rejected the State’s argument that an operational immunity applied to intentional torts: see Hill v Chief Constable of West Yorkshire [1989] AC 53, cited in Crowley. See also State of New South Wales v Spearpoint [2009] NSWCA 233 at [9] where Ipp JA observed that there was “no authoritative decision in Australia [that had held] that there was an absolute immunity afforded to police for their conduct in the course of their duties”.
In Crowley, the respondent brought proceedings in negligence against, relevantly, an officer of the Australian Federal Police and the Commonwealth of Australia, in relation to an incident in which the officer shot the respondent in the spine, leaving him permanently quadriplegic. The Australian Federal Police officer had responded to a number of complaints about the respondent, who had been acting in an erratic and aggressive manner while wielding a sword and a kendo stick. At the time of the incident, the respondent had been suffering from an acute mental health episode.
The trial judge’s finding of liability was overturned on appeal. The ACT Court of Appeal (Lander, Besanko and Katzmann JJ) held, relevantly, that the Australian Federal Police officer owed no duty of care to the respondent, primarily because such a duty would conflict with the duties of the police to the public at large.
The Court held, at [271], by reference to a number of English cases including the leading case of Hill v Chief Constable of West Yorkshire at 59, that police officers owe overlapping statutory and common law duties to enforce the criminal law, and that such duties:
“… exist for the benefit and protection of the general public. The community requires a strong and energetic police force to enforce the criminal law by preventing crime and protecting members of the public from injury to their person and damage to their property.”
It followed that policy considerations militated against the imposition of tortious liability for actions done in the course of such duties. At [274], the Court held that:
“The discharge by the police of their public duties cannot be constrained or limited by the fear that in carrying out those duties police officers may be found to be liable to suspected criminals, victims or bystanders, because that will impede the discharge of those duties. If it were otherwise, policing would become unduly defensive and therefore inefficient, and, as a consequence, members of the community would be put at risk.”
In addition, the Court held that a common law duty imposing tortious liability in the circumstances of the case would be inconsistent with the officer’s statutory duties. As it explained, at [287]:
“… there is another reason why police officers do not owe a duty of care to a suspect whom they are attempting to apprehend or arrest for the protection of the public. Common law duties cannot be imposed upon authorities if the discharge of the common law duty would conflict with a statutory duty owed by that authority. In Sullivan v Moody [(2001) 207 CLR 562], the Court said at [60]:
‘But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.’”
In the present case, the State contended that it would be incongruous if the position with respect to actions brought in negligence and actions brought in battery were different, and that the result of that approach would be that the policy considerations in Crowley could be sidestepped. It contended that the reasoning in Crowley applied, by analogy, to the question of whether police officers should be liable to individual members of the public for conduct that would, were it not in the course of their duties, constitute battery. As this was put in oral argument:
“… the ACT Court of Appeal … was talking about duties of care and we're not currently talking about that. The policy imperatives, however, about preventing policing becoming unduly defensive which would impede the protection of the community, remain relevant here.”
The State identified two aspects of coherence which it contended were also relevant to the question of liability for battery. First, it submitted that it is incoherent for a common law duty to be imposed on a person that is incompatible or inconsistent with an existing statutory or common law duty, power or function. The State contended that the imposition of liability for battery, in circumstances in which the discharge of the officer’s public duties required the commission of the battery, would be incoherent with the duties of a police officer, to which further reference is made below.
Secondly, the State submitted that it is incoherent for a common law duty to be imposed on a person which would tend in practice to undermine or discourage the performance of a statutory or common law duty, power or function which exists for the benefit and protection of the general public or a class of it. The State contended, therefore, that as a matter of legal policy the law was or ought to be that:
“… police officers are excused from liability for batteries committed by them whilst preventing a breach of the peace, provided the police officer held on reasonable grounds an honest belief that the force was necessary to prevent the breach of peace.”
This submission rested on a formulation of the duties, powers and functions of police officers which, in the State’s contention, in summary, are as follows:
(1)Police officers in New South Wales have all of the “duties and powers of a constable at common law, and also any other duties and powers conferred on them by statute”: State of NSW v Tyszyk [2008] NSWCA 107 at [72]; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 4 (LEPRA).
(2)Officers have common law duties to investigate and prevent crime and to prevent or assist in preventing disturbances or breaches of the peace: Tyszyk at [84]-[85].
(3)Officers are entitled to use such force as is reasonably necessary to prevent a breach of the peace: Albert v Lavin [1982] AC 546; R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105; Poidevin v Semaan [2013] NSWCA 334 at [18]-[19].
(4)LEPRA, s 230 also provides statutory protection to a police officer exercising police functions. That section provides:
“230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.”
(5)In evaluating the reasonableness of the use of force, “the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight”: Woodley v Boyd [2001] NSWCA 35 at [37], a case that concerned the use of force in an arrest, per Heydon JA (Davies and Foster AJJA agreeing). See also McIntosh v Webster (1980) 43 FLR 112 at 123.
(6)A breach of the peace occurs when an act “either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done”: R v Howell [1982] QB 416 at 426. It is likely that this definition is not exhaustive: see Tyszyk at [87]-[98] per Campbell JA and the cases cited therein.
Justin contended that there was no basis in the State’s assertion of incongruity if he could sue in battery but not in negligence, noting that such findings had been made in a number of cases. He cited State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496 and State of NSW v Koumdjiev [2005] NSWCA 247; 63 NSWLR 352, both cases concerning battery during an arrest; State of NSW v Ibbett [2006] HCA 57; 81 ALJR 427, a case concerning assault and trespass to land by a police officer; and State of NSW v Delly [2007] NSWCA 303; 70 NSWLR 125, a case concerning unlawful arrest. However, it should be noted that in none of these cases was the question of police protection from liability, in sense raised by ground 1 of the notice of appeal, considered.
Justin submitted that, accepting the principles stated in Crowley and the cases on police powers, the State should, on the facts in this case, nonetheless be found liable. He submitted that:
“[The State’s] submission on battery involves no more than a statement that reasonable force used in the context of a reasonable belief that harm is imminent is an available defence. That is not in dispute.”
Justin contended that “the unassailable findings of fact reveal no such reasonable belief was held by Constable Fanning”. He noted the distinctive facts of Crowley:
“Mr Crowley was not just wielding a kendo stick. He had hit one member of the public in the abdomen [at [204]], could not be contained with capsicum spray [at [232]] and hit a police officer on a number of occasions including a heavy blow to the back [at [233]].”
In my opinion, this Court should not accept that the actions of Constable Fanning were protected on the basis of, or by analogy to, the principles stated in Crowley. There are several reasons for this. First, Crowley was a case where the matter in issue was whether the police officers, who had responded to reports of erratic and potentially dangerous behaviour by the plaintiff, owed him a duty of care or whether their actions were protected by a common law operational immunity. The ACT Court of Appeal upheld the claim of immunity. In its detailed review of the case law, it observed, however, at [302], that it was difficult to “try and harmonise the authorities by reference to a single test”. It should be noted that the principle for which the State contended was initially framed in the alternative, as an immunity, but the language used in the amended notice of appeal was that of “lawful excuse”.
Secondly, there are observations in the authorities in New South Wales, to which the ACT Court of Appeal referred, that a duty of care is not necessarily ousted by the existence of such an immunity: see, for example, Tyszyk per Campbell JA at [128]. See also State of New South Wales v Spearpoint, to which reference has been made above.
Thirdly, the legislature, by the enactment of s 230, has spoken as to the circumstances in which a police officer’s actions in exercising a function under LEPRA, or under any other Act or law, are lawful.
I would dismiss ground 1 of the State’s notice of appeal relating to Justin.
Was Constable Fanning acting in self-defence?
The State contended that, on the facts as they ought to have been found, the evidence established that Constable Fanning believed, on reasonable grounds, that it was necessary to do what he did in defence of Constable Kleinman such that he was acting in self-defence: see Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645. The determination of this issue requires, in the first instance, the resolution of the State’s challenges to the factual findings.
In support of its challenge to the factual findings in paras (11), (13) and (18) the State relied, in particular, upon the transcript of the police radio recording responding to the 000 call, the ERISPs of each of the police constables, the walk through video and Justin’s statement to police at the hospital. The evidence at trial of each of the constables and of Justin, Georgia and Kayla and Jasmin also requires consideration.
Once those factual challenges have been resolved the following legal questions arise:
(1)Whether the test for self-defence stated in Zecevic, a criminal case, applies to a civil suit.
(2)Whether, on the facts as determined, Constable Fanning acted in defence of Constable Kleinman such that the State was entitled to rely on the common law defence of self-defence.
(3)Whether Constable Fanning was entitled to rely on the defence provided for by s 52 of the Civil Liability Act.
The evidence
The transcript of the police radio recording
The police radio recording commenced from the time of the call being made for an urgent response to the 000 call (the urgency being signified by a double beep) and concluded after other police had arrived at the scene and conducted a search of the area, including the premises, and had found a knife. The total time of the recording was 1 hour and 55 minutes. As is revealed from the transcript of the recording, the information that the police had on the basis of the 000 call was that “somebody [was] holding a knife against a female’s throat” and that there were four persons involved. One “male was kicking the female in the head”. The transcript also revealed that the time between the arrival of Constable Fanning and Constable Kleinman at the scene and the shooting was less than two minutes.
The transcript also records that one of the two police officers at the scene reported back to the radio base as follows:
“… at this stage there’s a home invasion. One of the ladies was armed with a knife … by a male who we believe to be the offender and we’ve had … shoot him. He’s got a bullet wound his … house at the moment, we’ve got everyone out … a knife to her throat.”
The reference to the female being armed with a knife is a reference to Justin’s partner, Jasmin, who ran down the street after Justin holding a knife, as is discussed below. It is likely that this report was made by Constable Kleinman, as immediately after the shooting Constable Fanning was attending to Justin.
Constable Fanning’s ERISP
Constable Fanning was interviewed by Detective Inspector Guyatt on Tuesday 27 September, commencing just after midday. It will be recalled that the shooting occurred at about 12.35 am on Monday 26 September, about 36 hours prior to this interview.
In the interview, Constable Fanning said that he was informed by Constable Kleinman that there was an urgent call out and that, as they were walking out of the police station to the police car, she reported to him that, “[a]pparently there’s two males holding a female”. Constable Fanning said that she “didn’t know too much more than that at that stage. So I was prepared for that”. He said that as they were driving to the scene of the accident, further information came over the police radio that there were “two males holding down a female, possibly a knife”. Constable Fanning said that he knew that it was a serious job because it was “a double beeper”, that he believed that it was a 000 call, and from the fact that there were two males and one female, which was “pretty rough”.
Constable Fanning’s police driving qualification (code blue) did not permit him to drive above the speed limit, operate the police lights or sound the siren.
Constable Fanning explained what he saw at the scene in the following terms. He said that they had driven a little way down the street when Constable Kleinman said “there’s a woman running, there’s a woman running”. He said that he saw a woman coming towards them and they pulled the police vehicle over. He said that the woman ran to his (the driver’s side) window, which was up, and that she was “hysterical ... she was waving her arms and she was screaming”.
Constable Fanning said that he got out of the vehicle and the woman said “there’s a man … he had a knife, he had a knife and he was choking me”. Constable Fanning said he asked “Where is he or where are they”, as he believed that there were two men involved, and that they told her to calm down.
Detective Inspector Guyatt asked what happened after they had “moved forward” with the woman, to which Constable Fanning replied:
“O.K. This is where it gets pretty full on … I just walked up and at the front of the house … another female came out. I don’t know who that female was so we now had two females with us.”
He said that the two women were speaking to each other in a “heightened” manner and that they were “obviously scared … they looked scared”. He said that the woman who had run to their vehicle had looked “petrified” and was “hysterical”. He said that the two women stood behind him and Constable Kleinman.
Constable Fanning then explained that:
“… at that point a male came running out of the driveway area of the house and he was screaming … I got a clear look at him because [the front of the house was lit by a floodlight]”.
He described the male person as wearing a black t-shirt and grey tracksuit pants. Constable Fanning said that the person:
“… was carrying in his left hand a very long steel looking frame ... I’d not seen something like that before. And he was holding it like this as he was running, he was doing this, this action with it, with his left arm … [he was moving his hand] [b]ack and forward as he’s running.”
Constable Fanning continued his description of what occurred as follows:
“… he looked to me … like he was crazy. He was screaming and when I … saw him come out with that long steel object, I then pulled my gun out because I didn’t know or see what he had in his other hand. I knew he had a long object in his left hand and he was waving it around in what looked to me to be an aggressive manner, a threatening manner. I pulled my gun out and at one point my view was obstructed … for a brief moment.”
Constable Fanning could not recall whether it was a car or a tree that had obstructed his view, but estimated that at that point the male person was “maybe” 15 or 20 m away from him. Constable Fanning then saw that the person “had moved out into the middle of the roadway and he was still screaming”. At that point, Constable Fanning said:
“… Stop, stop police, ‘cause I had my gun out … and he kept running. I said, Stop, stop police. And he kept running and he was getting closer … I may have said it a third time … I’m not sure, I can’t guarantee ‘cause it happened so quick but I may have even said it a third time, Stop, stop police and he was very close to [Constable Kleinman].”
Constable Fanning then described the position of himself, Constable Kleinman and the person running towards them. He said he was close to the gutter and the person was in the middle of the road. He estimated the person’s distance from Constable Kleinman as:
“… only 2 metres, two and a half metres. Distance from me on the night I thought was only probably 3 metres but maybe it was more. Maybe it was 4 metres.”
Constable Fanning said that the person “still had the rod in his hand and he was still waving it”. Constable Fanning said that Constable Kleinman was in line with him and that the person’s position in relation to them was “like the point of a triangle”. He said that the two women were between him and Constable Kleinman a bit behind them.
Constable Fanning said that he heard a female voice say “Stop, stop”. He did not know whose voice it was and said it may have been Constable Kleinman’s. Constable Fanning said that at that stage the distance between the male person and Constable Kleinman “was far too close” and that he had let the person come closer than he normally would have because he had not seen a knife at that point. However, he said that “what I saw was an object that could be used as a weapon and it could have taken my partner out”. He said that he “believed at that time [he] was thinking that [the object] could hit [Constable Kleinman’s] head”.
Constable Fanning then explained what happened next as follows:
“… he was waving it around and to me, my mind he looked unpredictable. He looked like he’d lost the plot, he’s looking like a crazy person cause he was screaming out and he wasn’t listening to what I was saying at all ... It seemed my words had no effect and I was yelling as, at the time I thought quite loud. It was pretty much, at that point I had to make the decision … I’ve never even put my hand on my gun as a precautionary measure in 2 years so for me to have my gun out it was serious and because of his actions and the threat that he was posing to my partner I felt I needed to act because I couldn’t live with that, if my partner got injured.”
Constable Fanning said that it was constantly reinforced in police training to look out for their partner. He said that he had initially aimed for the person’s chest when he was yelling out to him to stop, again, because that was part of their training. Constable Fanning said, however, that it went through his mind that he did not want to kill the person and so he lowered his aim to their stomach area. He said:
“… it happened in a split second … I never, ever thought that I would be able to think that at the time, in the moment. I never thought that I could make a judgement as such in the moment but I did … I fired off a round and I saw him collapse to his knees … he was holding his stomach area and at that point I heard … one of the females say, That’s my brother, and my heart sank, my heart sank because it’s not the offender. Well I don’t know if he’s involved or what, I don’t know but at that point he’s been stated by the female as being a family member in a crazed state and I’ve shot him.”
Detective Inspector Guyatt asked Constable Fanning why “in the first place” he had taken his firearm out of its holster. Constable Fanning explained:
“I drew my firearm because I believed it was an imminent threat, I believed that there was a knife somewhere. I did not know if this bloke was the offender and there was, he was running, I felt there wasn’t enough time for me to stop and ask the women who is this bloke, I had to keep my eyes on him. So because of that I kept focused on what was in front of me. Maybe in hindsight you could say, stop right there and ask them O.K. who’s this bloke but ---”
Constable Fanning again explained that the person “got closer and closer” and would not stop, notwithstanding that he had called out to him at least two or three times and that it “clicked over in my mind I’ve run out of options, he’s too close to [Constable Kleinman]”. He knew that Constable Kleinman had a Taser. However, he did not know whether she had it out, or whether it was turned on. He said that, therefore, he “was relying on only my option as a method to save her and myself, mainly her, ‘cause she was closer”.
Detective Inspector Guyatt asked what would have happened had he not discharged his gun. Constable Fanning answered:
“… If I didn’t discharge my firearm I felt that the threat was great enough that he could hit my partner with whatever he had in his hand and I didn’t not know until, at that stage I did not know if he had a knife … I couldn’t see his other hand …
--- I didn’t know if he was part of what happened.”
Detective Inspector Guyatt asked what the level of threat Constable Fanning believed there was at the time that he discharged his firearm. Constable Fanning responded:
“The level of threat was serious injury, I felt like if I don’t do something there could be serious injury. At that stage I didn’t have it in my mind that he was going to kill my partner, I had it in my mind that it was a serious weapon, whatever it was that he had in his left hand and I’d allowed him to get too close for my mind. I’d given him more than I should really. We don’t normally let people get that close. In the COPS it’s common 3 metres is … occupational safety.”
Detective Inspector Guyatt then asked Constable Fanning whether the level of threat had “ceased or lowered at any time” when the person was moving towards him. Constable Fanning replied:
“No, no. Only, there was a point where I had to make a judgement and at that split second he may have, he may have decreased his threat but to my mind he was, the threat was still on … he had not dropped it, he still had it in his hand and for my mind the threat was still on.”
Constable Fanning also said that he believed that he had no other option to stop the threat. He had capsicum spray which he had used in the past against a person with a small knife who was threatening self-harm, but he said that that was only effective when a person was close and not effective at a distance of greater than 3 m. He said he also had an extendable baton, but the person running towards him had a long metal object, so the baton was not going to be effective. He said, “I didn’t feel like I had another option. I felt like that my only option to stop the threat”.
Constable Fanning confirmed that he knew that the object that the person was carrying was metal, as he had seen it from the light at the house. He described it as silver in colour. Detective Inspector Guyatt asked whether he had formed an opinion as to how dangerous the object was. Constable Fanning said that he “felt like it was … a weapon”. He added:
“So at this stage the way he was holding it, why would someone do that, why would someone run out in the night time holding something metal and going like that. To me it was a threat. I felt threatened. … as well I still did not know if he had a knife. It was fresh in my memory from her that the bloke had a knife”.
The following exchange then occurred:
“Q274 Did you see the male that was holding, the male that you described was holding the weapon above his head ---
A Yeah, yeah.
Q275 --- did you at any point see him in possession of a knife?
A No I didn’t.”
Constable Fanning was then asked questions as to Constable Kleinman’s reactions at the time. He said that he did not know whether she had “gone into panic mode and frozen”, but from his “peripheral” vision he saw “that she was there” and that the person was “too close for [his] liking”.
Detective Inspector Guyatt then told Constable Fanning that it had been reported to him in the course of the investigation, that “at the point of the shooting”, the male person had “put the pole on the ground [and] was in the process of standing up”. Constable Fanning said that he had “heard that on the news” and that his “first reaction to that was bullshit. He confirmed that it was “bullshit”.
Constable Fanning was examined about certain of these matters during the course of his evidence at trial. He said that he had pulled his gun from his holster as soon as he became aware that the person “had a weapon”, “pretty soon after” he saw him in the floodlight. He said that:
“I’ve allowed him to get closer and closer. He was still running and he was still swinging the pole … I’ve known where my partner was … just from my peripheral vision I could see that she was to the side of me in the middle of the roadway, as was the suspect.”
Constable Fanning said that the person coming towards them had “breached the 7 metres that we are taught”. He said he was “waiting for a reaction” from Constable Kleinman, however, he didn’t take his eyes off the person coming towards him to check what Constable Fanning was doing.
Constable Fanning said that his decision to shoot the person:
“… was a last resort, because I reasoned within myself that, if I don’t stop him, he’s going to seriously injure my partner or even kill her. I saw the threat as imminent, I saw the threat as serious, and I knew that I had to react to stop that threat from getting any closer.”
He said that he was “waiting for a response from a taser” but did not see a red dot on the person and did not “see anything discharged from the taser”. He repeated that he “saw no other way of stopping the threat” from where he was. Constable Fanning also said in evidence that there was 3-4 m from himself to the person running towards him and that the person was 2-3 m away from Constable Kleinman. He said that was “further [meaning closer] than I would have allowed someone normally”.
Constable Kleinman’s ERISP
Constable Kleinman described the woman who was running along the road towards the police vehicle as being “hysterical” and as “hardly [able to] sling words together”. It is not in dispute that this person was Kayla. Constable Kleinman said she tried to calm Kayla down. Kayla was saying “[h]e had a knife to my throat”, that the offenders were “still in the house”, and that “[t]here’s two in the house. The kids are still in there”. She made no mention of her brother being in the house.
Constable Kleinman then saw a woman in a “knitted white kind of shirt” running down the footpath on the grassed verge. The evidence established that this was Georgia. She said she then saw a male “coming up the street … in the middle of the road … holding some long, long thing I don’t know what it was in his hand”. She said that the object he was holding was facing upwards and “when he was running it was running with him”.
Constable Kleinman said that the male was yelling something that she could not understand. Meanwhile, she was “trying to hold on to [Kayla] … trying to move her off the road”. She described the male person as:
“… coming up real fast and coming up close so we didn’t know what was happening … I thought he was chasing [Georgia] actually.”
Constable Kleinman estimated that the male person was probably 10 m behind Georgia, “but to the side because he was in the middle of the road”. She said that Georgia was “yelling and screaming”, that the male person was yelling as well and that he was “real close”. She added:
“I think he was running and it turned into … a swift walk still holding it up this … I don’t know what it was. It was a big long like, yellowy creamy white thing. It had like, little hooks on it.”
Constable Kleinman said that when she first saw the male person running down the road she did not know whether he might have been one of the offenders. She continued:
“… we’ve told him to stop and he’s still coming at us I thought well, he was about to assault us in some way or try and get away … so I’ve tried to grab my Taser but the lady obviously was trying to come forward. I’m trying to pull her back at the same time trying to grab my Taser ...”
Constable Kleinman described the physical position of Constable Fanning at this time as being:
“… back, a little bit back before … he’s come out the side and he was then on my right side. I can’t remember how he got to my right but he was on my right side. And as I’m trying to push the lady back pull my Taser … he’s kind of stood not quite in front of me but in like, closer to him so that I was behind him in a way.”
She said that at the time that she heard the gunshot she thought she was 4 m away from the person with the pole and that Constable Fanning was only 2 m away from her. She said that she estimated these distances because she was trying to determine whether her Taser would reach the person coming towards them, that she was “a good … distance” and that Constable Fanning was “a little bit further than me”. She added that it was a bit hard to determine as it “all happened so fast”.
It is convenient at this point to note that in her evidence at trial, Constable Kleinman said that Constable Fanning was on her left side and that was the finding made by the trial judge at fact (11). This aspect of the trial judge’s finding at fact (11) was not challenged by the State. Constable Kleinman also stated in her evidence that when she first saw Justin, he was about 20 m away, and that when he was shot, he was less than 4 m away from her. She believed he was 2 m from her. She said that Constable Fanning was on the roadway, slightly in front of her. Kayla was to her right behind her. She said that she was not sure where Georgia was.
Constable Kleinman was questioned in her ERISP as to what options she had to stop Justin. She said that she did not consider the use of her baton or capsicum spray as viable options, given that Justin was holding the pole which was longer than her baton and also that she did not know whether he had a knife. She said that if Justin had a knife, he would “probably come at me with the knife quicker than I could spray something”, so that the spray would not have been effective to stop him.
She also said that both from her experience, and from what she had been told, capsicum spray was not always effective in stopping a person from continuing to move. Constable Kleinman said that in the circumstances, she “automatically went for” her Taser. She said that if she had not had her Taser, she would probably have “pulled [her] gun straightaway”.
Constable Kleinman said that as the male was running towards her she thought he might have been “one of the offenders” who had held the knife to Kayla’s throat. She was asked how she had felt about the person running out of the house “with this massive pole”. She responded:
“… I thought here we go … here comes the offender now. And I, I don’t believe anyone who is a victim would have been, armed themselves and run at police. Like, we were clearly there to help them … once we said stop a couple of times and he’s kept running I thought oh, definitely he’s an offender. He’s not stopping. He’s not listening. And that’s when I attempted to pull my Taser … I thought he was about to obviously assault us to try and get away from what’s happened.”
The walk through video
The walk through video was filmed on 27 September 2011, the day after the incident.
In the walk through video, Constable Fanning initially indicated that he was standing in the street what appears to be less than a foot from the driveway of 6 Holmes St when he saw Justin emerging from the house. He indicated that Constable Kleinman was to his right, closer to the middle of the road. Georgia and Kayla were somewhere behind Constable Kleinman, although the statement relating to them was accompanied by the comment “I don’t know”. Later in the video, Constable Fanning indicated that he was in fact standing considerably further towards the middle of the road than he had initially indicated.
Constable Fanning said that he could see Justin clearly in what appeared to be a strong floodlight from his point of exit. However, he also said that his view was momentarily partially blocked, such that he could only see Justin’s head and something metal sticking up in the air. He could not recall whether the blockage was a tree, telegraph pole, small bush, or vehicle.
Constable Fanning gestured that when Justin emerged he was holding something above his head and was swinging it forwards and backwards in what appears in the video to be a spearing motion. Justin then came running down the road and Constable Fanning moved back and said “stop, police”. Constable Fanning said that he allowed Justin to get very close. He said that Constable Kleinman was at that time to his right near the centre of the road and he thought that Georgia and Kayla were in between him and Constable Kleinman. He indicated that Justin had run down the road, closer to the opposite side than to the side on which he was standing, but had moved towards the centre as he approached. He said that in his memory, there “was only a matter of metres between [Justin] and Constable Kleinman” when he was shot.
Constable Fanning said that he did not draw his firearm until he saw Justin emerging from the house. He said that he originally held the pistol in a cover position but raised it to point to Justin’s upper torso when Justin started coming down the road, could be seen clearly, and was not responding to calls to stop. He lowered it to Justin’s lower torso immediately before he shot because his intent was not to kill but to stop the threat. Constable Fanning agreed that Justin was approximately 1.5 or 2 m away from Constable Kleinman at the moment that he discharged his gun. He emphasised that it was dark and there was limited street lighting, but that when he shot he had a clear view and a clear shot.
Justin’s hospital statement and evidence at trial
Justin was interviewed in the intensive care ward at Westmead Hospital at 7 pm on 26 September 2011, that is, is on the same day as the shooting and a short time after undergoing surgery. The trial judge did not accept that Justin had made voluntary admissions in the course of this interview to the effect that Constable Fanning had made an honest mistake in shooting him and that he was shot by accident. This was not challenged by the State. However, the State placed some reliance upon Justin’s recollection of how things had unfolded up to the point that he was shot.
In his statement to police, Justin said that he knew two of the offenders, but did not recognise the third member of the party. He saw one of them with the knife to his sister’s throat. He said that he heard a siren. That, of course, could not have been correct, as the police siren had not been activated. He said that he grabbed the “top rail piece” of the vertical blinds and that as he was running, he was holding it:
“Up above my head … Waiting for them. See if my sister had a knife to her throat. I was gunna take his head off.”
He was asked what was going through his mind at that point and he said:
“Free my sister … Making sure my sister was out of harm’s way but if I had noticed there were cops I wouldn’t have kept running and swinging.”
He said that all he saw was “a couple of figures standing around my sister”. He said he thought those persons were the offenders. He said that by the time that he realised they were police officers, his hand “was already on my stomach and I was wrecked. I was out”. He said that the police officer had told him he should have stopped because he “yelled it out a fair few times”. However, Justin said that “with what was going on in my mind at that time I couldn’t hear it”.
Justin was asked how far he was from the police officer when he was shot. He initially described the distance by reference to his position in the bed to the door. When asked how far that was, he said “[a couple of] metres. Three metres, four metres”. He said that at that time he was still running which he described as not being “like a flat sprint but it wasn’t like a jog either”. He reiterated that he was just trying to get to his sister.
As already mentioned, Justin also said that this shooting by the police officer “was an honest mistake”. When asked why he said that, Justin responded:
“Because I was running around like a psycho yelling out at the top of my lungs ‘Where the Fuck is my sister?’ And I had a weapon in my hand … Cause I was expecting those people to be still with my sister, not the cops.”
Justin said that after he had been shot, the police officer picked him up and carried him over to the footpath. He laid Justin down and put pressure on the wound and kept talking to him, making sure that he was awake and that he was all right. Justin said:
“[Constable Fanning] was really apologetic ... with what happened ... Which is why I said I don’t want nothing to happen to that officer, what did shoot me because it was an honest mistake.”
Justin confirmed in his evidence at trial that he had grabbed the curtain rod and started to run out from the house. He said that he would have used it “if need be and [his] sister was at the point was going to get hurt”. In cross-examination, Justin agreed that he was holding the rod above his head ad it was going backwards and forwards. He also accepted that he was running towards his sister when he got shot.
Justin gave evidence at the trial of the intruders. In that evidence, he said that he was running towards his sister. At that stage, he did not know whether the intruders were still with her or not. He said he just wanted to protect her. He did not see anybody else until he got shot. He said it was that point that he “actually snapped into it, looked around and I saw my mum, my sister and the police”.
Kayla’s evidence
Kayla gave evidence that, of the two police officers, Constable Kleinman was closer to the gutter. She was not certain where her mother was, but remembered that her mother was closer to Constable Kleinman. Kayla said that she was closer to Constable Fanning and of the four, she was furthest from the gutter. She said that she was not directly in the middle of the road but between the middle of the road and the gutter. In response to a question as to whether she observed Justin coming towards her, or towards someone else, she responded, “No, he was just running. I don’t know who he was coming at”.
Kayla agreed, however, that Justin was running in the direction where she was but he had slowed down before he was shot. He had not however, “come to a dead stop”. Asked whether Justin was only a distance of “one, two, perhaps metres away” from the police officer, she said that she was not sure as to how many metres away. She said Justin was “a bit away from the officer, yeah” and a bit further back than two or three footsteps. She agreed that it all happened very quickly.
The confusion occurring at the time was captured in the following cross-examination:
“Q. When the police car arrived you were so panicked that you were scared for your own life even upon arrival of the police, weren’t you?
A. Yes.
Q. You were unable to give the police details upon their arrival. Correct?
A. Yes.
Q. That was because of what you had gone through in that earlier period before they’ve arrived. Is that so?
A. Yes.
Q. You told me a bit earlier about your mother and your mother being panicked, but when your mother appeared she was also bleeding, was she not?
A. Yes.
Q. It was obvious just by looking at her that she had been injured as a result of the assault carried out upon her the perpetrators?
A. Yes.
Q. Would it be fair to say that parts of her face were covered with blood?
A. Yes.
Q. Sorry, you’ve just pointed to the right hand side of her head?
A. It was – I’m not sure if it was the right or left, but the back of her head was--
HIS HONOUR: [Counsel for the State], [Kayla] has indicated with her right hand pointing to the right side of her head and the right temporal area.
[COUNSEL]: Thank you.
Q. You’ve told us a little bit about how you were having trouble getting words out of your mouth or to communicate, but when Justin came out holding this object in his hand, was it the case that you were trying to say, ‘It’s my brother,’ to the police but the words just wouldn’t come out?
A. When Justin had run out he had said, ‘Where’s my sister?’ Whether the police had that or not I’m not sure but I could have – I would have maybe tried to have said, ‘That’s my brother.’
Q. When you say, ‘Maybe I tried to say it,’ the situation is that you weren’t able to get the words out of your mouth at the time?
A. I’m not sure if they come a hundred per cent out of my mouth.
Q. I’m sorry?
A. I’m not sure.
Q. All right. And when you say Justin came out saying, ‘Where’s my sister?’ or something like that, at the time when he said that, is it correct to say that – this is on your recollection for the moment, is it correct to say that both you and your mother were both screaming at the same time whilst in the presence of the police?
A. Yes.
Q. In other words, you were screaming, you were yelling, your mother was screaming, your mother was yelling, but somewhere there you believe you heard Justice say, ‘Where’s my sister?’
A. Yes.
Q. When Justin came out of a house, it wasn’t just a case of him coming out and being quiet. He was actually screaming himself, was he not?
A. Yes.
Q. Was he screaming in a very loud voice?
A. He was screaming, yes.
…
Q. Was he screaming, making a loud, continuous noise, effectively not saying any words but just a loud, continuous noise?
A. I can’t remember what was coming from his mouth.”
Georgia’s evidence
Georgia said that when she first saw Justin, he was in the middle of the road holding the curtain rod. According to her description, he was holding it with both hands together like a baseball bat and that was holding it to the right-hand side. She said he was calling out, “[w]here’s my sister? Where’s my sister?”. Georgia said that at that point, they were all standing on the grass facing back towards the house, with the female officer and Kayla on her left and the male officer on her right. On that description, Constable Fanning would have been closest to the gutter, although Georgia gave evidence that the four were “[a]ll pretty much close to the road because we were right – just before the gutter”.
Georgia also said that when the police officer pulled out his gun she said, “[t]hat’s my son. That’s my son”. She said that she said this to both officers, because one had a Taser and the other had a gun and she did not want them to use them on her son. She said that she wanted the officers to know that he was not one of the intruders.
Georgia also gave the following evidence in chief:
“Q. Ms Karakizos, do you have a memory of what happened between the time you saw Justin on the road running with the curtain rod and the time that Justin was shot?
A. He ran on the road, they kept telling him to put the rod down and I think he was about to put it down when he got shot …
Q. … Did you observe Justin do something with the curtain rod before the shooting?
A. No, he was going to put it down because we told him it was okay.
…
A. He was stopped. He had actually stopped on the road when we told him it was okay, she was here.
Q. Can you recall whether it was a sudden stop or whether he’d slowed down before he stopped or maybe you don’t recall?
A. Not 100% sure but I think it was a sudden stop.
…
A. … And he’s in the middle of the road.
…
[COUNSEL FOR THE APPELLANT]: I’m going to estimate that distance to be about 5 metres, your Honour.
…
[COUNSEL FOR THE RESPONDENT]: I won’t disagree, your Honour.”
The trial judge awarded Kayla total damages of $132,430, comprising general damages of $80,000, $46,000 for past loss of wages and smaller sums for interest and treatment expenses.
General damages
His Honour outlined Kayla’s experience of the home invasion at [36]. It was undoubtedly horrific. When she confronted the intruders, a knife was put to her throat and she was forced to search her mother’s room for money. She witnessed a knife put to her baby brother’s throat. She was then told that two of the men were going to rape her and a knife was placed between her legs on her inner thigh. She escaped and ran to the police car and witnessed the shooting of her brother. It seems the attackers also became aware of the police presence and decamped when it arrived and witnessed the shooting of her brother. Kayla’s evidence of the shooting is outlined above at [101]-[ 103]. She gave evidence that after the shooting she saw “a little bit of blood” on Justin and that she felt shock and fear.
Kayla saw Ms Shirin Steev, psychologist, on three occasions in November and December 2011. In a report dated 1 March 2012, Ms Steev stated that Kayla had been suffering PTSD “as a result of the home invasion and assault on 26 September”, but her prognosis was unknown as she had declined to continue treatment. Kayla did not return for treatment with Ms Steev or seek any other treatment.
Kayla was examined by Dr Roberts on 30 August 2012. He reported that Kayla presented “in a manner classical of PTSD”. As to causation, he found that:
“In considering the events of 26 September 2011 [Kayla] stated that the most significant events at the time of the occurrence of the above incident was the shooting of her brother. This should be deemed to be the substantial cause of the PTSD. The other significant incident namely the threat to harm her baby brother is currently the most significant of the incidents under consideration but this is a later development and the substantial cause of the PTSD is the shooting of her brother.”
Kayla was examined by Dr Samuell on 25 March 2013. He found that at that time her prognosis was excellent and that if she had been suffering from any psychological condition she was no longer doing so.
The trial judge considered there was little dispute on the medical evidence that Kayla had suffered PTSD as a result of the incident. His Honour found, at at [269], that “[Kayla] did suffer a post-traumatic stress disorder following the incident, and that a major component of that related to the shooting of her brother Justin”. His Honour also observed that Kayla had presented as a “most stoical person who was doing her best to put behind her what was a most violent and traumatic event”. These statements would appear to reflect an acceptance of the view of Dr Samuell that Kayla was no longer suffering from the condition.
The State contended that the trial judge’s reference to the shooting amounting to “major component” of the PTSD could at most be read as a finding that the shooting and the assault contributed equally to the condition. In that context, they contended that the sum was excessive by comparison with the sum awarded to Georgia, who suffered more severe ongoing PTSD. It contended that an appropriate award was in the order of $25,000.
Kayla contended that the State’s submission did not address the evidence she gave relating to her experience of the shooting, or that of the recording of the aftermath of the shooting. She also made the same submission relating to the impermissibility of comparisons pursuant to Planet Fisheries v La Rosa as was made by Georgia: see above at [320]-[322].
It is difficult to know what his Honour meant by the shooting of Kayla’s brother being a “major component” of her PTSD. Kayla was subjected to more significant trauma than Georgia during the invasion and it is difficult to see that it would not have had a major impact upon her. Nonetheless, different people react to stress and trauma in different ways and on his Honour’s finding, Kayla had done her best to put the events of the night behind her. The question for this Court, however, is whether the trial judge erred in awarding general damages for a condition that had resolved or had at least significantly resolved.
Once the question is posed in those terms, and given that some portion at least of the PTSD that Kayla suffered was attributable to what she encountered in the home invasion, I consider that an award of $80,000 for an injury which was limited or at least substantially limited in its ongoing effects to a period of less than two years was excessive.
In my opinion, an appropriate award for general damages is $40,000.
Past loss of wages
The trial judge’s finding on past loss of wages, at [270], was as follows:
“The plaintiff has claimed damages for past wage loss, but nothing for future loss of earning capacity. She was earning $400 net per week at the time of the incident. I award her that amount over the whole period, one hundred and fifteen weeks, in the sum of $46,000.”
His Honour found, at [268], that the reason Kayla was scared to go back to work was because of a fear that the perpetrators of the home invasion would come back and harm her and members of her family.
The State contended that, given the finding at [268] related only to the home invasion, causation with respect to the shooting was not established. Kayla contended that it was implicit from the trial judge’s findings that Kayla’s inability to return to work following the September 26 incident was materially contributed to by the events of the evening, including, “mainly”, witnessing the shooting. She submitted that, if the home invasion was a second cause resulting in the loss of wages, the State was “required to do the disentangling and to exclude the operation of the [wrongful conduct] as a contributory cause”: Watts v Rake [1960] HCA 58;108 CLR 158 at 160 per Dixon CJ.
Watts v Rake was a case concerning, relevantly, injury tortiously caused to a plaintiff who was already disabled. At 160, on the question of the onus of proving that the plaintiff’s injury was caused by the tort, Dixon CJ held that:
“… there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”
The effect of the principle outlined in Watts v Rake in a case such as the present was outlined in the concurring judgment of Windeyer J in Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 171, as follows:
“In Watts v. Rake … there is also a reference by Dixon C.J. to another situation, that which arises when it is said that a plaintiff's disabilities should be regarded as the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant. Such cases can no doubt exist. But again a defendant is not relieved of responsibility for the consequences of his conduct because the plaintiff would not have suffered as he did unless other contributory factors had existed. The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant.”
Shortly put, there is an evidentiary onus on defendant claiming that the harm to the defendant had a cause unrelated to the wrong to bring evidence such as could establish that cause and its relative effect on the injury. In the present case, it was up to Kayla to demonstrate in the ordinary way that the shooting was causally related to the past loss of wages and, that being done, it was for the State to bring evidence such as could establish the role of the home invasion in also causing the loss and, pursuant to Watts v Rake, to disentangle its effects from those of the shooting.
Kayla was asked about the cause of her unemployment in cross-examination, as follows:
“Q. Was it the case that you believed that if you went out and got a job, a full time job, the perpetrators may find out where you worked and would find a way to get back to you?
A. That could be a reason why I was scared.
…
Q. When you say, ‘It could be,’ it really was the case, wasn’t it, that you were concerned if you went out and got a job and was seen out there in the public that these perpetrators may have an opportunity of getting at you?
A. It’s not just that, it’s just that I didn’t trust people anymore.
Q. That’s because of what happened as a result of the home invasion that night, isn’t it?
A. The whole night.
Q. When you say, ‘The whole night,’ what led you to not trusting people was what happened in that house with the home invaders putting a knife to your throat, threatening your baby brother with a knife and threatening to kill you and members of your family, isn’t that so?
A. Yes.”
Given that exchange, which notwithstanding the final answer quoted, I would regard as somewhat equivocal, and the medical evidence underlying the finding at [269] that Kayla’s PTSD was causally related to both the shooting and the home invasion, I find that evidence was available such as to give rise to an inference that Kayla’s unemployment in the period before the trial was causally linked to both the home invasion and the shooting. I do not understand his Honour’s statement at [268], when read with [269], to have found that fear of the perpetrators was the exclusive cause of Kayla not seeking employment in the relevant period.
It follows that the State’s submission that causation was not made out for the award of damages for past loss of wages to Kayla should be rejected. In the absence of any clear submission to the effect that the shooting and the home invasion caused separate harm for which damage could be apportioned, and in accordance with the principle in Chapman v Hearse [1961] HCA 46; 106 CLR 112, the trial judge did not err in awarding damages for past wage loss. The State did not contend that that loss should be limited to point at which Dr Samuell considered that Kayla had made “an excellent recovery”, that is, by March 2013. Had the matter been argued, I would have considered that that was the appropriate time to which past wage loss ought to have been awarded.
Conclusion
It follows from the conclusions I have reached that the State’s appeals must be allowed. Whilst the State did not succeed on ground 1 of its appeal as against Justin, I consider that its overall success is such that the respondents ought to pay the entire costs of the appeal. To the extent that Justin and Kayla had success on their damages claims my reasons in that regard have only been given should I not be correct in the conclusion I have reached on liability.
In ordering costs against the respondents, I have not sought to determine any proportion each respondent ought to bear. However, in the usual way, the respondents are at liberty to apply for some other costs order either as against the State or as between themselves pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).
I propose the following orders:
1. Appeal allowed in each matter;
2. Set aside the orders of the Court below in each matter;
3. Refuse leave to rely on the notices of contention filed by Georgia Karakizos and Kayla McMaster;
4. Respondents to pay the State’s costs in the Court below and to have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled;
5. Respondents to pay the State’s costs on appeal in each matter.
McCOLL JA: I have had the benefit of reading Beazley P’s reasons in draft. I agree with her Honour that the State’s appeals in each case should be allowed and with the orders she proposes.
I agree with Beazley P’s reasons for concluding that the State’s challenge to the primary judge’s findings of fact at [177](11), (13), (18) and [178], [199] and [203], each of which was in my view were critical to his Honour’s finding in favour of the respondents, should be accepted.[1]
[1] See McMaster v State of New South Wales; [2013] NSWDC 244.
In my view the findings the State challenged were contrary to compelling inference. Part of the reason for that, stems from the primary judge’s erroneous conclusion that at the time of the critical incident, “both Constable Fanning and Constable Kleinman were standing towards the western gutter of Holmes Street”. It is common ground that that finding was erroneous and that, in fact the two police officers were standing on the eastern side of the street. It was accepted that, in that position Constable Fanning was in front of, and to the left of Constable Kleinman.[2]
[2] Primary judgment (at [177](11)).
As Beazley P has said, the respondents submitted that that this, in effect, was an immaterial slip on his Honour’s part which did not impact upon his Honour’s appreciation of the dynamics of the situation, in particular the position of the participants vis-à-vis each other. However, in my view that conclusion is not open. It is apparent that his Honour’s erroneous finding impacted on the challenged finding, that “Justin McMaster ran down the middle of Holmes Street [and] was at no time running towards either Constable Fanning or Constable Kleinman.”[3]
[3] Primary judgment (at [177](13])).
Once it accepted, as all parties do, that the police officers were standing towards the eastern gutter of Holmes Street, the dynamics of the situation changed. Even if Justin McMaster only ran down the middle of Holmes Street, nevertheless, because Constable Kleinman was positioned more towards the centre of the road than Constable Fanning and, too, behind the latter, the situation was that Constable Fanning was entitled to perceive that Justin McMaster posed a potential threat particularly to Constable Kleinman. This was especially so in circumstances where he could not see what she was doing[4] and was unable to determine whether she had been able to, or was about to, discharge her Taser.[5]
[4] Primary judgment (at [177](12)).
[5] Primary judgment (at [98]).
It is also significant that the primary judge erred in finding that Constable Fanning discharged his service pistol “when Justin McMaster was about 5 metres away.”[6] That finding involved his Honour accepting the evidence of Georgia Karakizos as opposed to that of both police officers and that of Kayla McMaster and Jasmin Potts as to Justin’s distance from the police officers when the shot was fired. As Beazley P has demonstrated, Georgia’s evidence was inherently unreliable. Contrary to the primary judge’s finding, his Honour ought, as the State contended, have found that Justin was between 2 to 4 metres away from Constable Fanning when he discharged his firearm.
[6] Primary judgment (at [177](18)).
Once the position of the prime players is oriented correctly, it is manifest that, contrary to the primary judge’s finding, at the time Justin was shot he posed a threat to Constable Kleinman. Accordingly, it is a compelling inference that Constable Fanning shot Justin because he reasonably believed it was necessary to do so to defend Constable Kleinman from the threat Justin posed.
In my view the primary judge’s findings were contrary to the evidence as Beazley P has explained and, further, contrary to compelling inference.
The foregoing remarks are in addition to the reasons Beazley P has given to allow the appeal.
I would not, however, express any view about the proper operation of s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The State referred to that provision briefly in its written submissions and, orally, mentioned it in passing, but suggested that, in any event, it probably did not change things very much. The respondents mentioned it only to contend that it was contrary to the findings of fact. Absent any argument about the proper operation of the provision, I would refrain from expressing any view about it.
I otherwise agree with Beazley P’s reasons.
MEAGHER JA: I agree with Beazley P that each of these appeals should be allowed. Subject to what follows I agree with her Honour’s reasons in support of those conclusions.
In its appeal from the judgment in favour of Justin McMaster, the State by ground 1 of the amended notice of appeal raised the question whether at common law a police officer is excused from liability for a battery that is committed whilst attempting to prevent a breach of the peace and on the basis of an honest and reasonable belief as to the necessity for that action. As her Honour records at [31], this was a much narrower proposition of the circumstances in which police officers were said to be excused from liability than that contained in the original notice of appeal. That being so, it is not necessary or appropriate to address that broader immunity defence. Nor is it necessary to consider whether s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provided an independent statutory justification for what otherwise was an actionable battery. That argument was not developed. It is not the subject of any ground of appeal and it is not necessary to resolve that question in order to determine the appeal.
I agree with her Honour’s conclusions in respect of the challenges to the primary judge’s findings of fact. To succeed on ground 4 it was necessary for the State to establish that Constable Fanning believed that it was necessary to shoot the man later identified as Justin McMaster in order to prevent serious injury to Constable Kleinman and that he had reasonable grounds for that belief. That question of reasonableness directs attention, in particular, to the necessity for the Constable to adopt what in most circumstances would plainly be a disproportionate response to a threat of injury. Because of the significance of this question I should record my own reasons for agreeing with Beazley P’s conclusion that this defence is made out, while also taking account of the further findings of fact made by her Honour.
Holmes Street, where the incident occurred, runs in a north-south direction towards Neville Street. Nos 4, 6 and 8 Holmes Street are on the eastern side of that kerb and guttered roadway, with No 4 towards the southern end. The police attended the scene following a complaint of conduct said to involve two men holding a female down and threatening her with a knife. As the vehicle driven by Constable Fanning and containing Constable Kleinman proceeded along Holmes Street in a southerly direction in response to that radio call, a woman was seen running towards them. That woman looked petrified and was “hysterical”. The vehicle was pulled over on the eastern side kerb somewhere outside No 8. The officers got out of the vehicle. The woman (later identified as Kayla, Justin McMaster’s sister) said that one of the men “had a knife, he had a knife and he was choking me”. Another woman was then seen running along the grass verge near the footpath on that eastern side and towards the police vehicle. This woman was later identified as Georgia, Justin McMaster’s mother.
In the very short timeframe which followed, Constable Fanning was standing close to the eastern side kerb facing along Holmes Street in the direction of No 4 and Constable Kleinman was standing slightly behind to his right and towards the centre of the road. Kayla and Georgia were behind Constable Kleinman and closer to Constable Fanning. A man appeared. He ran out of the driveway of No 4 Holmes Street and then onto the roadway. Constable Fanning described him as carrying a long steel object in his left hand (a “metal pole”), waving it around, screaming and looking “crazy”. (Justin McMaster described himself at this time as “running around like a psycho”). The Constable thought the man, now known to be Justin McMaster, was one of the intruders. He pulled out his service revolver and trained it on him (in what is described as “a cover position”). As the man reached the road he proceeded to run down the middle of it in the direction of Constable Kleinman and the two women. Constable Fanning shouted at the approaching man two or three times “stop, police, stop”. At some stage someone else, likely to have been Constable Kleinman, shouted “put it down, put it down”. The man continued running along the centre of the road towards Constable Kleinman.
Constable Fanning could see Constable Kleinman in his right peripheral vision but could not see what she was doing. He knew that she had a Taser but did not know whether she had it turned on or had pulled it out. As events unfolded, he did not have time to look away and then look back. At the same time Kayla and Georgia were “screaming”. As the man got closer, Constable Fanning believed he presented a threat of serious injury or worse. The Constable did not have a Taser. The only other possible weapons at his disposal were capsicum spray and an extendable baton. He was not close enough to use either. He waited for Constable Kleinman to use her Taser. At the instant before he fired, he lowered his aim towards the man’s stomach area. At that time Justin McMaster was two to three metres from Constable Kleinman.
Constable Fanning’s oral evidence given before the primary judge captures the predicament facing him (Black 346D-S):
Q. And what happened?
A. I’ve kept my eyes on him as he’s running down the roadway. By this time my firearm was already out and I had it pointed towards his upper torso. I've allowed him to get closer and closer. He was still running and he was still swinging the pole. I've then - I've known where my partner was, Constable Kleinmann, but I didn’t actually turn to look at her. I just knew that he was there. I could see - just from my peripheral vision I could see that she was to the side of me in the middle of the roadway, as was the suspect. He was running down the middle of the roadway. As he's got closer, I've then taken a step, maybe a step and a half, backwards towards the eastern side gutter, with my firearm still pointed at his upper torso. I’ve allowed him to get within 2 to 3 metres of Constable Kleinmann, which for me was further than I would have allowed someone normally.
He'd breached the 7 metres that we are taught, and I suppose I was waiting for a reaction also from my partner, who I knew had a taser, and there was no response from my partner. However, I didn’t take my eyes off him to check what she was doing. As he's got closer and closer, I've then thought very loudly in my head, "I'm going to have to shoot this bloke." It was a last resort, because I reasoned within myself that, if I don't stop him, he's going to seriously injure my partner or even kill her. I saw the threat as imminent, I saw the threat as serious, and I knew that I had to react to stop that threat from getting any closer.
…
Q. … Now I'll ask you about Constable Kleinmann. Was anything said by her, on your recollection, towards him?
A. I could hear her voice. I've known her for - at that stage, for at least a year, so I knew her voice, and I could hear her yelling out, “Stop, police, stop”. I heard her say those words, so I knew she was supporting me in that way, yes.
Q. You indicated you didn't discharge your firearm until he came to be the distance from you that you indicated. Why didn't you discharge your firearm earlier?
A. I was waiting for a response from a taser. I didn't see any red dot on the suspect and I definitely didn't see anything discharged from the taser. I saw no other way of stopping the threat from where I was.
In my view Constable Fanning’s act in pulling out his service pistol when he first saw the man running out of No 4 Holmes Street with what looked like a metal pole was reasonable in view of what he understood had occurred in that house, which also suggested that this man may have a knife. From that point, as the man got closer to Constable Kleinman’s position on the roadway, he presented, unless stopped, a threat of significant injury. This was not a case of a simple assault being resisted by use of a firearm. The threat to Constable Kleinman was believed to be serious injury or worse. Constable Fanning waited until the last moment. He did not see any indication that Constable Kleinman was going to use her Taser. At that point, he had no alternative course of action available to prevent the threat to Constable Kleinman which he reasonably believed the man presented.
**********
Amendments
10 August 2015 - Headnote, two typographical errors corrected
10 August 2015 - Headnote, formatting and numbering corrected
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18
7