This post again raises the issue of self-defence (see Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police – Part 1 (October 5, 2015)) and the liability of police for shooting someone in the course of their duties.

In No liability for police shooting (February 13, 2013) I reported on the unfortunate circumstances of Mr Crowley. Mr Crowley was mentally ill when police approached him. The police were aware that there had been concerns for Mr Crowley’s safety but also, due to his behaviour, the safety of the community.   Although Mr Crowley was not ‘an offender’ (he would not be criminally liable for his actions) he was posing a threat and actually struck the police. Eventually a police officer discharged his firearm and Mr Crowley was left a quadriplegic. At trial Mr Crowley was successful in alleging that the police were negligent in the way they responded to him and the situation. On appeal that decision was reversed, the ACT Court of Appeal finding that the police owed a broader duty to ensure community safety and a duty not to harm Mr Crowley would be inconsistent with that broader duty.

In a similar, but certainly not identical case, police have again been found not liable for a tragic shooting. In NSW v McMaster [2015] NSWCA 228 the NSW Court of Appeal had to resolve legal issues involving the police and self defence. In this case the police were called to reports of a violent home invasion that had involved at least two men attacking two women with reports of a knife being used. On arrival at the address, one woman who was very agitated, upset and screaming approached police – this was the first victim from the house. Within seconds the first victim’s daughter also approached the police – she was the second victim. The women were described (at [7]) as “visibly upset and somewhat hysterical, and were having difficulty communicating to the officers what exactly had occurred”.   Whilst the two police officers were trying to get the women off the street and to get some idea of what had happened they saw a man, Justin McMaster, come out of the house armed with something that they could not readily identify but which turned out to be a curtain rod. A woman armed with a knife followed him; this woman was Justin’s defacto partner.

In his own words ([97]) Justin was ‘running around like a psycho yelling out at the top of my lungs’. He approached the police.   One constable, Constable Kleinman was trying to get one of the victims off the street and also reaching for her Taser. The other constable, Constable Fanning, didn’t have a Taser so he drew his gun. Both police were calling on the man to stop and drop his weapon. He did not do so and got within at least 3 metres of Constable Kleinman. Constable Fanning was waiting for her to use her Taser but he was aware that it had not been used – he could not see her and did not take his eyes from the man to see what she was doing. Realising that for whatever reason the Taser had not been discharged and the man was no very close to Constable Kleinman, Constable Fanning discharged his firearm.   He was then able to determine that the man was not one of the offenders but the son of victim 1, the brother of victim 2.   The whole event was over within 2 minutes of police arriving on the scene.

In a legal action for damages McMaster alleged the police were negligent and also liable for ‘battery’ that is the intentional infliction of force.   His mother and sister also sued for damages for the undoubted distress that they suffered seeing their son and brother shot in front of them.   The case in negligence was lost at trial and there was no appeal on that point.  The court confirmed the ruling in Crowley’s case that the police could not be held to owe a duty of care to McMaster as that duty would be inconsistent with their broader duty to the community.

On the case in battery (at [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.”   The State appealed.

The Court of Appeal rejected a claimed immunity by police that they were somehow immune from all intentional torts committed in the course of their duties.   The State argued that the sort of reasoning in Crowley’s case that said that they owed no duty of care, and so could not be liable in negligence, should also apply to an allegation of battery. The court rejected that application which makes sense. It is one thing to say that the police owe multiple duties including a duty to protect the public such that, in performing that duty, they may well harm a person who is posing a threat to that public. A duty to someone in Mr Crowley’s position (who remember was not ‘an offender’) would be inconsistent with their duty to the public. But a duty can’t justify what would otherwise be a battery unless other areas of the law justify the use of force.

In this case the trial judge rejected the argument of self-defence, a finding that the Court of Appeal found was wrong. The issue became whether the legal test for self defence in tort law (the civil area of law that leads to an award of damages) was the same or different to the test in the criminal law.   The test in the criminal law was set out by the High Court of Australia in Zecevic v DPP (Victoria) (1987) 162 CLR 645. In that case, Justices Wilson, Dawson and Deane said, at 661, that the question to be asked in assessing a claim of self-defence is:

“… whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

The court of Appeal held that the same test applied in tort law.

In this case Constable Fanning believed there was an imminent threat to his partner. This was indeed the case. Justin had clearly armed himself even though his intention was not to hurt police but to find, and rescue his sister. In any event he intended to use the curtain rod as a weapon. He said (at [93]) that he was holding the rod “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 saw his sister with ‘a couple of figures’ but he didn’t realise they were police.   He said he only realised the people with his sister were police after they shot him and began to provide first aid care ([95]-[98]).

The court also recognised the defence of necessity, which has been the subject of much discussion on this blog. The defence of necessity allows the use of force to save a life and would certainly, for example, justify forcing entry to a building to rescue a person inside. The New South Wales Court adopted the principles of necessity as summarised by a New Zealand judge in Dehn v Attorney-General (1988) 2 NZLR 564, namely (at [217]):

(1) There is clear authority for the application of necessity as a defence to trespass especially where human life is at stake: Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218.

(2) Necessity may only be raised in an urgent situation of imminent peril: Southwark London Borough Council v Williams [1971] Ch 734.

(3) The question of necessity is viewed at the time of the actions in question, not retrospectively, such that it is no answer to the defence to say that, in the event, the actions of the trespasser were not necessary: Cope v Sharpe (No 2) [1912] 1 KB 496.

There were other legal issues that were addressed but they were very technical and need not be addressed here.

Implications for the emergency services

This blog is really for the benefit of the fire, ambulance and emergency services. This case was however about police, why is it relevant?

First because of what the case said about the principles of necessity and confirmation of their application. Those principles, listed above, are clearly relevant to fire fighters, paramedics and SES members who might be called upon to enter property to save a life. Earlier posts have questioned the authority to do so. That authority is found in the relevant legislation and in the common law.

More importantly is the discussion the law of self-defence. There are reports of increasing violence against emergency service workers and in particular paramedics. In Tasmanian Paramedic I reported on a case where a man was convicted of assaulting a paramedic, but acquitted of assaulting a police officer even though he punched the officer twice to the face. The law of self-defence applies to everyone. in that case the patient had refused treatment and was being given a drug that he had not consented to and did not know what it was.   He was entitled to defend himself and to use the force he thought was necessary. As the High court also said in Zecevic’s case (see [155]) the jury when considering whether an act was in self-defence:

“… should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.”

But it cuts both ways. A paramedic who is being assaulted, or who is in fear of being assaulted, is also entitled to act in self-defence and in defence of others. This is not an encouragement to violence and paramedics should not consider this a licence for aggression but should at least know the law.

This case might be described as a terrible misunderstanding, in all the emotion Justin did not realise the people with his sister were her rescuers not her tormenters, and the police had neither the opportunity or the time to work out that the man approaching them was the victim’s brother and not one of the offenders. Had there been time perhaps the whole event could have been de-escalated. It wasn’t and Constable Fanning fearing for his partner’s safety discharged his firearm – and was not guilty of any crime nor was the State, on his behalf, liable to pay damages.   Of course given Justin’s understanding of the situation he too may have been able to use ‘self defence’ (which extends to the defence of others) if he had actually struck Constable Kleinman.

The trauma to Justin’s mother and sister cannot be underestimated. First they are victims of a violent home invasion and then they see their brother shot by the police who had come to assist them. Even so the court found that there had been no breach of duty to them and no ‘wrongful’ act so their claim for damages was also dismissed.


in some respects this case adds little to the law. It confirms that the test for self-defence both in crime and tort is the same and is as set out in Zecevic v DPP. There is no rule that the response ahs to be ‘proportionate’ but if it is excessive that would suggest that the person did not honestly believe that what they did was reasonable.   Subject to that a person can use force to defend himself or herself and that’s true if they’re police, paramedics or competent patients being treated against their will.

Equally the law confirmed the place of ‘necessity’ as a part of NSW torts law. It is a doctrine that can justify forcible entry in urgent circumstances by police, fire and ambulance services and is a defence to various torts including trespass to land and trespass to the person (battery).