Anderson v Dodds & Anor [1994] QCA 51

1 IN THE COURT OF APPEAL [1994] QCA 051 SUPREME COURT OF QUEENSLAND Appeal No. 143 of 1993 Before Fitzgerald P. Davies JA. White JA. [Anderson v. Dodds] BETWEEN: RODNEY MARK ANDERSON Appellant (Plaintiff) AND: RICHARD WILLIAM DODDS First (First Defendant) Respondent AND: THE STATE OF QUEENSLAND Second (Second Defendant Respondent REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 21/03/94 The circumstances giving rise to this appeal are set out in the judgment of Davies J.A. I agree with his Honour that the appeal should be dismissed. It is an extremely serious matter when a police officer shoots a citizen in the course of the police officer's duties, and a plea of self-defence in a civil action resulting from such an incident should be carefully scrutinised. Accordingly, it would have been preferable if the trial judge had made fuller, more detailed findings, so that the parties and this Court might more clearly understand the basis upon which he concluded (i) that the assault on the first respondent constituted by the appellant's threat to strike him on the head with what appeared to be a wooden post was such as to cause reasonable apprehension of death or grievous bodily harm and (ii) that the first respondent believed on reasonable grounds that he could not, except by shooting the appellant by way of -- 1 of 15 -- 2 defence, preserve himself from death or grievous bodily harm. Nonetheless, the appellant's first ground of appeal, which was expanded in lengthy written submissions, fails to persuade me that his Honour's decision was incorrect. On the contrary, the necessary conclusions to establish self- defence were quite open even if the appellant was further from the first respondent than he claimed when the shot was fired. On any view of the matter, the first respondent was called upon to react quickly in what would undoubtedly have been a frightening situation. Estimates of distance in circumstances such as those which existed at the time of the shooting are notoriously difficult. What is important is that the trial judge obviously was satisfied that, at the time when he discharged his weapon, the first respondent seemed otherwise in imminent danger of being struck on the head and injured by what appeared to be a heavy piece of wood. In such circumstances, there is no foundation in the appellant's first ground of appeal, which was based upon the erroneous premise that self-defence could not be made out if the appellant was not in, or immediately near, striking distance of the respondent when he shot him. Due weight must be given to the fact that, even if a little further away at the time, the appellant was running towards the first respondent, brandishing the object with which he was threatening to strike him. Whatever the distance the appellant and first respondent were apart when the shot was fired, there would have been very little time for the first respondent to think and act after it became apparent that the appellant intended to continue and strike him. The appellant's other ground of appeal was that the first respondent was, in any event, negligent in allowing the situation in which he shot the appellant in self-defence to develop. It is not clear how such a case would be developed if the shot was lawful by section 271 of the Criminal Code: see Code, section 6. Nor is it obvious why -- 2 of 15 -- 3 the appellant's own negligence would not deprive any negligence by the first respondent of all, or almost all, practical effect. It is unnecessary to pursue these issues. It is a sufficient answer to the appellant's negligence assertions to say that there would have been no occasion for the first respondent to consider retreat until the appellant ignored his direction to stop and continued to run forward to attack the first respondent who, by then, was called upon to think and act virtually on the instant. This aspect of the appellant's claim is further discussed in the judgment of Davies J.A.. I agree with his Honour's reasons for rejecting the appellant's case based on negligence and with his Honour's concluding remarks. -- 3 of 15 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 143 of 1993 Brisbane [Anderson v. Dodds] BETWEEN: RODNEY MARK ANDERSON Appellant (Plaintiff) AND: RICHARD WILLIAM DODDS First (First Defendant) Respondent AND: THE STATE OF QUEENSLAND Second (Second Defendant Respondent Fitzgerald P. Davies JA. White J. Judgment delivered 21.03.94 CATCHWORDS: Counsel: Mr. P. Dutney Q.C., with him Mr. J. Lee for the appellant Mr. P.E. Nolan for the respondents Solicitors: Thynne & Macartney as town agents for Goodfellow and Scott for the appellant Crown Solicitor for the respondents Hearing Date: 14/02/94 -- 4 of 15 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 143 of 1993 Before Fitzgerald P. Davies J.A. White J. [Anderson v. Dodds and State of Queensland] BETWEEN: RODNEY MARK ANDERSON (Plaintiff) Appellant AND: RICHARD WILLIAM DODDS (First Defendant) First Respondent AND: THE STATE OF QUEENSLAND (Second Defendant) Second Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 21/03/1994 The appellant sued the respondents in the District Court for damages for assault or negligence by the first respondent on 19 July 1989. That action was dismissed on 13 June last year and it is from that judgment that the appellant appeals. The learned District Court judge nevertheless assessed damages. Though there was an appeal against that assessment it was not pursued. The first respondent ("the respondent") was at all times a member of the Queensland Police Force. On the above date he shot the appellant in the groin with his police revolver. The circumstances giving rise to that shooting were as -- 5 of 15 -- 3 follows. At about 7 p.m. on the above date the respondent, in the course of his police duties, was driving a police car along a road outside the Marsden shopping centre. Another policeman was seated in the front passenger seat. A man suddenly ran across the road in front of their car pursued by another man (who as it turned out was the appellant) who appeared to be wielding a guide post in a manner as if he was intending to strike the other man with it. The respondent, having been forced to apply the brakes to avoid these men, then brought his vehicle to a halt and he and his police companion then pursued the two men on foot; the respondent pursued the plaintiff and his companion pursued the other man. Seeing the plaintiff in the vicinity of the car park area of the shopping centre, the first respondent called out to him: "You come over here. I want to have a word with you." The plaintiff looked back but then jogged away from him down the car park area towards the back of the shopping centre. He was still carrying the object which the first respondent believed to be a guide post. The respondent followed the plaintiff and, observing him move behind a large gum tree, called out to him again: "Come over here. I want to have a word to you but drop the guide post." They were then about 15 paces apart. The plaintiff -- 6 of 15 -- 4 replied: "Come on. Be a fucking hero." and commenced to run towards the first respondent with the object raised above his head. The respondent then called out: "Stop, police. Stop or I'll shoot" to which the plaintiff replied: "Come on mate, be a fucking hero" and continued to run towards him. The respondent had not at that stage drawn his revolver which was in a holster under his parka. He then drew it quickly and fired, at the same time putting his hand over his head to prevent injury to himself. He did not have time to aim. Three facts should now be mentioned, none of which is, in my view, relevant. The first is that the object being wielded at all material times by the plaintiff was not a guide post but a piece of solid cardboard about 91cm long. The second is that the appellant's right hand had been amputated and he was using his left hand to wield the object. And the third is that the appellant was drunk. It was not contended before this Court that the respondent had any means of knowing any of those facts before the shooting or that his belief that the object being wielded by the appellant was a guide post was other than reasonable. The appellant failed below because the learned trial judge held that the nature of the appellant's assault was such as to cause reasonable apprehension of death and that the respondent believed on reasonable grounds that he could not, otherwise than by discharging his revolver at the appellant, -- 7 of 15 -- 5 defend himself from death: Criminal Code, s. 271. The shooting was therefore lawful and no action could be brought in respect of it: Criminal Code Act 1899, s. 6. Although a number of grounds are contained in the notice of appeal only two were pursued in this Court. The first of these, which is set out at some length in the appellant's written outline, focuses on the distance between the appellant and the respondent when the shot was fired. The contention, in short, was that that distance must have been 15 feet or more and that at that distance the respondent could not have reasonably believed that shooting was the only course he could take to defend himself from death. Although his Honour did not make any specific finding as to the distance between the appellant and the respondent when the shot was fired, he found that it was not until the respondent believed that he was in danger of being struck by the object in the plaintiff's hand that he attempted to cover his head and in the same motion produced his service revolver. That is in effect what the respondent said and is also consistent with his evidence that the appellant was probably an arm's length, three or four feet, from the barrel of his gun when he fired. His Honour no doubt appreciated that, given the facts that the appellant was running at the respondent and that the respondent was drawing his revolver and attempting to fire at the same time as he was attempting to cover his head, it was unlikely that -- 8 of 15 -- 6 any such estimate would be very accurate. It was in my view sufficient to conclude, as his Honour in effect did, that the appellant was almost within striking distance when the respondent fired his gun. The fact that the respondent did not have time to aim supports this conclusion and there was no evidence which contradicted it. The other ground, which was argued at greater length, was that the respondent was negligent to put himself in the position where he had to shoot the plaintiff in self defence. His Honour made a specific finding to the contrary. The appellant submitted that between the time when he commenced to move forward from behind the tree and the time when the respondent drew his revolver there was ample opportunity for the respondent to retreat to safety and that it was unreasonable for him not to do so. But it was reasonable of the respondent, even after the appellant had commenced to run towards him, to believe that the appellant, when told that the respondent was a policeman, asked to stop and told that if he did not the respondent would shoot, would act sensibly and obey the direction. By the time it was clear that he would not it was too late to retreat safely. For these reasons I think that his Honour's conclusion that the respondent "did not place himself negligently in a -- 9 of 15 -- 7 situation where he would be compelled to use his service revolver" was correct. Consequently it is unnecessary to consider the legal consequence of the correctness of the appellant's factual contention. Of course, if the position had been that the respondent could reasonably have avoided the need to draw and fire his revolver by retreating, he ought to have done so. I need hardly say that the discharge of a firearm by a policeman in his own defence should always be a last resort. But in the present case the learned trial judge was entitled to infer that, by the time it ought to have been apparent to the respondent that the appellant could not be dissuaded from assaulting him, the appellant appeared to be in a position and to have an intention to crush his skull. The appeal must therefore be dismissed. -- 10 of 15 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 143 of 1993 Brisbane [Anderson v. Dodds and State of Queensland] BETWEEN: RODNEY MARK ANDERSON (Appellant) Appellant AND: RICHARD WILLIAM DODDS (First Defendant) First Respondent AND: THE STATE OF QUEENSLAND (Second Defendant) Second Respondent ____________________________________________________________ _____ FITZGERALD P. DAVIES J.A. WHITE J. ____________________________________________________________ _____ Judgment delivered 21/03/1994 SEPARATE REASONS FOR JUDGMENT DELIVERED BY THE PRESIDENT, DAVIES J.A. AND WHITE J., ALL CONCURRING AS TO THE ORDERS MADE. ____________________________________________________________ _____ APPEAL DISMISSED. ____________________________________________________________ _____ CATCHWORDS: ASSAULT - CAUSE OF ACTION - respondent police officer shot appellant - appellant ran towards respondent with what appeared to be a guide post - self defence - whether appellant's assault such as to cause reasonable apprehension of death or grievous bodily harm - whether reasonable grounds for belief that respondent could not defend himself from death except by shooting - Criminal Code (Qld), s. 271 NEGLIGENCE - CAUSE OF ACTION - whether -- 11 of 15 -- 2 respondent negligent in placing himself in a situation where he was compelled to shoot THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 143 of 1993 Brisbane Before The President Mr Justice Davies Justice White [Re: Rodney Mark Anderson] BETWEEN: RODNEY MARK ANDERSON Appellant (Plaintiff) AND: RICHARD WILLIAM DODDS First Respondent (First Defendant) AND: THE STATE OF QUEENSLAND Second Respondent (Second Defendant) REASONS FOR JUDGMENT - WHITE J. Judgment delivered : 21/3/1994 The facts and circumstances giving rise to this appeal are set out in the judgment of Davies JA. I agree with his Honour's conclusion that the appeal should be dismissed and for the reasons he there sets out. I also agree with the President's observation that it is a very serious matter when a police officer shoots a citizen in the course of his duties as a police officer. When that occurs and a plea of self defence is raised by the police officer in civil proceedings brought by the citizen, the facts surrounding -- 12 of 15 -- 3 the shooting need to be examined with great care. I am not persuaded by the appellant's detailed analysis of the facts that the trial judge erred in his conclusions on this matter. In this case the appellant said quite frankly in evidence that he had no recollection of events leading up to the shooting. His last recollection was leaving an hotel where he had had lunch and had stayed on for some hours afterwards drinking heavily, betting and playing pool. His next recollection was waking up at the hospital waiting to go into the operating theatre, his mother being with him. He did not recall two detectives also being there to interview him. One of the detectives gave evidence at the trial of what the appellant said about the shooting. The appellant said to the detective that he did not know that the respondent was a policeman and thought that he was looking for a fight. The appellant said that it was his intention to "have a go" at the respondent and scare him. The trial judge had regard to this evidence when reaching his decision. (R.241). It was irrelevant that the appellant did not appreciate that the person approaching him was a police officer. It was not suggested that he himself was in a self-defence situation, indeed the evidence of the interviewing detective supported the view that the appellant was conducting himself in an aggressive and threatening manner. -- 13 of 15 -- In the circumstances found by the trial judge to have existed at the time of the shooting, which were open on the evidence, nice estimations as to distance and time have little place in evaluating the plea of self-defence. There was no evidence to support a conclusion that it was negligent of the respondent to challenge the appellant to stop or to anticipate that the appellant would disregard that challenge and the information that the respondent was a police officer and that he would shoot and in my view the trial judge was correct in his finding. -- 14 of 15 -- Counsel: P.R. Dutney Q.C. with him Mr J. Lee for the Appellant Mr P.E. Nolan for the Respondents Solicitors: Messrs Thynne & Macartney as t/a for Goodfellow & Scott for the Appellant Crown Solicitor for the Respondents Date(s) of Hearing: 14 February 1994 -- 15 of 15 --