I am in receipt of your memorandum dated 31 May 1935, forwarding request by the Official Receiver, Brisbane, for advice as to the responsibilities at common law of an officer in the event of his discharging the departmental pistol in the course of his official duties.

Paragraph 7 of the memorandum from the Secretary, Prime Minister’s Department, refers to the discharge of the departmental pistol on any occasion, not merely in the course of an officer’s departmental duty.

The possession or use of firearms at common law imposes on the person possessing or using them the duty to take the highest possible degree of care. The mere fact that an accident results from the possession or use of firearms where with proper care it should not so result, is prima facie evidence of negligence. Persons who leave firearms where they may be meddled with or used by casual passers-by or others who are ignorant of their dangerous nature, are liable unless they can show that they were not negligent.

If an officer in the course of his official duties is in possession of property of the Commonwealth, e.g. when acting as an escort, and is attacked, he is justified in using reasonable force in self-defence or in defence of the property of the Commonwealth in his possession. He is not entitled to use a deadly weapon to repel an ordinary assault; to justify the use of such a weapon he must be in fear of serious bodily danger or robbery or some similar crime of violence and must first have retreated as far as possible and must not use more violence than is appropriate to the occasion.

If injury results to any other person from the taking of reasonable and proper steps to defend himself or the property of the Commonwealth in his possession from injury or imminent risk of injury, the fact that injury or risk existed and that such steps were required and were taken for the purpose of obviating it may afford a justification or excuse. If firearms are used by an officer without justification or excuse, the person injured is entitled to damages.

The general common law principles are briefly outlined above, but it is not possible to provide for every contingency in this memorandum. It is expected that an officer will be guided in this matter by his common sense and will only resort to the use of firearms as a last resource, when all other means of self defence or defence of the property in his possession have failed.

[Vol. 28, p. 305]