Andrew Stephen Benn v State of New South Wales

Local Court of NSW|2014-12-05

Reasons for Decision

At the intersection of Barker Street and Walker Street in the Northern Rivers town of Casino there is a roundabout with a flagpole, a cenotaph memorial, some street signs, paving and grass. It is one of the major intersections in the town. At about 1300 on 1 October 2010 Andrew Stephen Benn (Benn) was sitting on the roundabout when he came into contact with NSW police. After a period of time he was shot with a Taser in the back by Senior Constable Reddell (Reddell).
Benn sues the State of New South Wales for assault, also known as battery, a species of trespass to the person.

Onus of Proof

The plaintiff Benn bears the burden on the balance of probabilities to prove firstly that there was an assault, and if so proved, second the degree of harm occasioned. An assault is an intentional act or threat by a person which directly creates in another a reasonable apprehension of imminent contact with the body of another. An assault is often accompanied by a battery (as is the case here), where there is in fact an act which causes contact with the body of another.
If and when the facts of an assault are established, the burden then shifts to the defendant, the State of New South Wales, to establish on the balance of probabilities that the subject act occurred with lawful justification and that the force used was reasonable in the circumstances. This includes proving that the force was not excessive.

Assessment of Witnesses

This case was heard more than four years after the events. Memories naturally fade with time, and it is also natural for versions to somewhat harden into self-justification. In this case, the version of Reddell and the version of Benn are considerably at odds. After carefully analysing the written and oral material in this case I have formed the conclusion that the evidence of Reddell is more reliable than that of Benn, and where there are conflicts between the evidence, the evidence of Reddell is to be preferred.
Reddell was a cogent and convincing witness. Where he could not remember matters, he was forthcoming and clear. He was sober and mentally stable at the time. Where he was in error, such as covering the camera on the Taser with his hand, he did not prevaricate or seek to excuse. He did not appear to be aggressive, gung-ho or resistant, even when confronted with tough cross examination and his honesty and recollection being called into question. His evidence was largely consistent with the other police - but there were some inconsistencies discussed below which he dealt with confidently and without recrimination. I was particularly convinced by his honesty when describing deliberation regarding the use of the Taser - it was not something he chose lightly or in the heat of the moment, it was a choice he made after weighing up the other options. He had never fired the Taser previously.
Benn was significantly intoxicated and mentally unstable on the night in question. His memory of events was clearly affected these conditions. His demeanour in the witness box was troubling and my impression was that he was attempting to remember what he had written in the statement, rather than what had occurred. In particular, in my view he sought to downplay the nature and content of the threats he made on the night, and this was a self-serving reconstruction on his part. There were significant inconsistencies between the allegations in the claim, and his evidence in the witness box. His intense antagonism to the police was obvious, and his sense of being wronged was palpable. One part of his recollection that I am satisfied was genuine (if exaggerated) is that he was actually electrocuted as a result of the Taser. As discussed below, not much turns on this, as Reddell also believes that the Taser worked, despite other officers having doubts.
I specifically reject the contention at paragraph 9 of the Plaintiff's Submissions in Reply that Benn was a credible witness. The best that can be said is that his genuine recollection was patchy, and that he filled the gaps with a self-serving wish list.
In submissions Benn questions the credibility of Reddell, and raises five issues. Firstly, it is submitted that his knowledge of Benn relating to knives and OC spray being ineffective was never raised before the civil case. In particular, it was not raised in any notebook entry or in the previous criminal case. In my view the factual basis for this submission is correct. I agree with the submissions in reply by the plaintiff at [30] that officer Reddell's knowledge of the plaintiff was much more general on the night than he recollects.
In my view, particularly with respect to the ineffectiveness of OC spray on this particular person, Reddell's evidence smacked of genuine but misplaced subsequent justification. However, when he was giving evidence on these issues in the witness box this did not dent my impression of his overall credibility. In my view it is most likely that his knowledge now has become confused with his knowledge then.
Accordingly, I am not satisfied that he had in mind Benn's resistance to OC spray when he made the tactical decision to use the Taser. However, as discussed below, I am satisfied he was concerned about the distance from Benn in considering and rejecting that option.
The second issue relates to an inconsistency regarding taking the phone, and it is suggested that this belies the fears of close contact that Reddell had. I reject this contention. In my view, the phone issue is typical of a detail which is easily forgotten over a four year period, and was in any event at a time in the negotiations where close proximity was considered safe.
The third issue relates to the drinking vessel carried by Benn. In my view, the bottle/can/bladder issue is typical of a detail which is easily forgotten over a four year period, rather than an issue of honesty or collaboration between witnesses.
The fourth issue relates to an inconsistency between the evidence of Reddell in the criminal trial and in this civil trial. In the first, he denied feeling fear at the time he discharged the Taser, and in the second he stated that he was fearful. In my view, this issue is typical of a memory of a state of mind where genuine recollection is changeable over a four year period.
Fifth, there is an inconsistency about the precise timing and nature of the threats with respect to the Taser being used. At one stage the evidence of Reddell was that the threat was against police, at others that the threat was of self-harm. In my view, this minor issue is typical of a detail which is easily forgotten over a four year period.
In my view these inconsistencies do not affect the overall credibility of Reddell.

Findings of Fact

Two Casino police officers, Reddell and Senior Constable Campbell (Campbell) arrived at the roundabout at approximately 1300 hours. They were there for approximately half an hour negotiating with Benn prior to the arrival of any other police. Benn was intoxicated and was in a highly agitated state. The next police officer to arrive was Sergeant Walpole (Walpole). He and the original police officers sought to negotiate with Benn for a further approximately 25 minutes. At some time they were joined by officers Senior Constables Davey (Davey) and Wicks from Lismore.
The police negotiated for a period of approximately one hour with Benn in an effort to apprehend him without any force. These efforts were unsuccessful. At the time the Taser was fired Benn was walking away off the roundabout paved/grass area onto the road.
Some of the police present had knowledge of Benn; for example, Campbell was aware of his history of violence toward police and that he had been charged with assault police. Walpole knew of Benn and of his 'fervent hatred of police'.
Some of the police present had previously arrested Benn; for example, Campbell had arrested him for malicious damage. Reddell had one week prior completed a section 22 Mental Health Act 2007 request when Benn entered the police station requesting to be scheduled as he wanted to hurt someone or kill himself.
Other police had been briefed previously regarding Benn; for example, Davey knew that he had a history of violence toward police including attempts to take firearms from police. Reddell had heard that he was dangerous, disliked police, had approached a police officer with a knife in hand and had threatened to pull a gun from another officer. Reddell had read his criminal history only a week before which includes entries for intimidating and assaulting police.
During the interaction with police, Benn made a variety of threats. These included threats to punch police in the face and telling them to 'get fucked'. This reaction was heightened when police got closer. He threatened harm also to his girlfriend and himself. His demeanour varied from very aggressive and threatening, to emotionally upset as his girlfriend had miscarried recently. He was very agitated.
In the submissions on behalf of Benn it is contended at paragraph 13 that he 'offered no violence to anyone'. This contention is also in the Statement of Claim at 6(b)(ii). This is completely at odds with the evidence of police and even of Benn.
Campbell spoke with Benn for about 30 minutes. She called for backup from her supervising officer, Walpole, and also two police in a car from Lismore. The reason from this was that she was of the view that Benn needed to be detained for his own safety. At one stage, the Benn was encouraged near the truck, but he refused to get in. During this period Reddell was continually saying 'calm down' and offering to take Benn to the hospital.
By the time the Lismore police and Walpole arrived a decision was made that they were not going to leave without Benn. The police surrounded him and negotiated for a further period of time. Benn attempted to walk away.
The use of Taser was discussed between Walpole and Campbell, and although he has no specific recollection of such a discussion, with Reddell.
Benn turned to depart and began to walk off. The Taser was deployed in his back by Reddell from four to five metres away. This was the first time he had used the Taser on a person. He inadvertently covered the camera during use of the Taser.
The use of the Taser upon Benn, satisfies me that the facts of an assault occurred. As discussed above, this then gives rise to a consideration as to whether the act by police was justified. If so, then the plaintiff's cause of action will not be established.

Facts in Dispute

It is in dispute whether the Taser was effective. Campbell was of the view that it was not, as the defendant was wearing a jacket, that one probe missed him, and that he tripped. Reddell was of the view that Benn was at that time only wearing a shirt, and that the Taser 'arced' through the clothing. Benn recalled being 'pumped with electricity'.
It is also in issue how long the Taser was operative - in the sense of how long it was electrocuting Benn. Benn says it was operative for two minutes at transcript 1:20. Reddell says that he utilised one cycle of minimum five seconds. The Statement of Claim alleges a five second cycle at 6(c)(iii).
I am satisfied that Benn was electrocuted - that is the evidence of the two persons best positioned to know, Reddell and Benn. It is also the evidence of Walpole, the senior officer. I am satisfied that the electrocution was for one cycle. All the police evidence about the relatively immediate falling is consistent with that scenario. That is what was alleged in the Statement of Claim, and that was the convincing evidence. It may have felt like two minutes for Benn, but I am satisfied that it was for five seconds.
It is in dispute precisely how long the police were negotiating with Benn. Campbell stated that it was 30 minutes before the Lismore police arrived. Davey said that they spent 10 minutes once he arrived from Lismore speaking with Benn. There is some contradictory evidence, and I note that the Statement of Claim at 6(b)(i) alleges that the negotiation period was 'some one hour'. I am satisfied on balance that the negotiation period was between 55 minutes and one hour.

Legal Power of the Police

Where the police form the view that a person is mentally ill, they are entitled to use reasonable force to take that person to a mental health facility, and may restrain the person in any way that is reasonably necessary: s 81 Mental Health Act.
There is some discussion in the submissions of alternate heads of power such as s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002, s 6 of the Police Act 1990 and common law powers relating to breach of peace. In my view these are not relevant as they were not the stated reason for the actions by Reddell, and for the reasons discussed below the defendant does not need to go beyond the Mental Health Act powers. As put by the Plaintiff in submissions in reply at paragraph 11: …in any event, the real issue is less the head of power, and more the question of whether reasonable force was used.

The test to be applied

In my view the test is objective. At paragraph 12 of the defence submissions, it is stated that this case involves: An examination of what Senior Constable Reddell reasonably believed in all the circumstances, including the pressure of the situation.
In my view whilst Reddell's view is one element, it is necessary for the court to make an assessment of the reasonableness of using the Taser taking into account all of the circumstances. Reddell's opinion of his own actions, whilst relevant, are not determinative, as the test is objective.
This is not an enquiry into whether the use of the Taser was the best option with the benefit of hindsight, and the opportunity of step-by-step analysis of the situation. The test is whether I am satisfied, on the balance of probabilities, that the force used was reasonable and not excessive.
This is not an 'agony of the moment' case such as Woodley v Boyd [2001] NSWCA 35, McIntosh v Webster (1980) 43 FLR 112 or Williams v State of New South Wales (District Court (NSW), Blanch CDCJ, 22 February 2014, unrep). Although the decision to Taser was made quickly- over about 30 seconds- it was in the context of a long and drawn out negotiation period with plenty of time for tactical decisions and a senior officer present.

The Decision to Detain

The submissions by Benn contend that there was no need to detain. In my view it was reasonable to detain him and take him to the hospital.
Reddell said that simply leaving was not an option due to the threats: Tactical disengagement was also not an option, as the plaintiff's safety was at risk and the forethought of self-harm was apparent if police were to leave the plaintiff. I couldn't just let him walk away in the state of mind he was in. [Exhibit 3.20]
Walpole sums up the situation at paragraph 12 of his statement: Police could not leave the plaintiff on the roadway in a highly distressed and erratic state, and we could not let him go home because of the threats of self-harm. Getting him into the truck would not be easy given his previous history of violence and threats to police and his general mental state…
The submissions contend (at [13] initially and at [50] in reply) that further negotiating or monitoring would have been reasonable. In my view that was a reasonable option. So was deciding to detain. The truth is that in the given situation there are a range of options that were reasonable ones after almost an hour of negotiations. One reasonable option was to continue negotiating. A second reasonable option was to detain.
If it were five minutes of negotiations, of course that would have been far too short. But after somewhere between 30 minutes and one hour? In my view it was reasonable to put a stop to the peaceful negotiations and move into the restraint phase.

Was the Use of Taser Reasonable

Campbell stated that a baton or OC spray were not an option due to the close range required, and fears that he had a concealed weapon.
Reddell stated that he could not get close enough to Benn to use the OC spray. Reddell in the hearing stated that: … on the night I had no doubt if I was to apprehend him by hand that I would have been physically assaulted.
In terms of other options such as OC spray, Walpole stated at [15]: Other options for use of force such as baton would not have been appropriate in the circumstances. It is possible that OC spray could have been used but the amount of police in such close proximity could have potentially made it dangerous for Police.
It seems to me that the option of talking to Benn had reasonably been exhausted, that had been tried for a considerable period of time, and had proved unsuccessful. The options then were to use physical force with no weapons, use batons, use OC spray or use Taser. Any choice had risks of injuring police, and injuring Benn. It was likely that Benn was going to resist whatever option was used.
The Standard Operating procedures (Exhibit 11) are of assistance in determining the reasonableness of the use of the Taser: 4. Criteria for use 4.1 Protect human life 4.2 Protect yourself or others from person/s where violent confrontation is occurring or imminent 4.3 Protect officer/s in danger of being overpowered or to protect themselves or another person from injury.
The written submissions on behalf of Benn contend that where there are five police, no actual violence, an intoxicated mentally ill person, with his back to police there is insufficient urgency or threat to make reasonable a choice to utilise the Taser and that: …there cannot possibly be any sensible justification for firing the officer's second most lethal weapon…
The written submissions, in the exemplary damages section, reinforce this contention after considering the Ombudsman's report, How are Taser weapons used by the NSW Police Force? (October 2012) at pp 56 - 59 and 62.
And yet despite that background, in this case the State of NSW has maintained from start to finish that this use of a Taser on a vulnerable mentally ill man who had turned his back to walk away from police is justifiable.
The plaintiff submits that the assault on Mr Benn with a Taser weapon was committed with contumelious disregard for his rights and liberties, particularly as a vulnerable member of the community apparently in the throes of an acute episode of mental illness or emotional distress.
The police position seems to be that there came a time when it was simply not convenient to continue a non-violent negotiation, or to escort Mr Benn as he left pursuing his stated aim of going home: it was just easier to Taser him and take him to hospital.
If only to make it clear the Court's position that Taser use on fleeing mentally ill subjects is unreasonable, a further measure of damages to act as a sting, is called for.
In submissions in reply at [28] this argument is put even more definitively: The ultimate issue is whether Taser use on a retreating - or fleeing - mental health patient can ever be justified.
In my view, where the mental health patient has a known history of violence to police, has threatened to kill his girlfriend and to assault police and to harm himself, and there have been lengthy negotiations the answer is that it may be justified, if the other options are properly considered and rejected.
After all, what would have been a better option - to continue the negotiations as he walked off into the night, to crash tackle him to the ground on a road way with the potential for injuries for all, attack him with a baton, or risk police safety by attempting to spray him from a close enough distance without affecting other police? Perhaps it is arguable that there were other options, or even better options, but as discussed above that is not the test. It is not to assess which would be the best option, but whether the one chosen was reasonable in all the circumstances.
The police were confronted with a set of options all of which were going to involve a degree of violence. They had decided, reasonably, that they could not let Benn go on his way. In the real world, there is a limited timeframe for peaceful negotiations with a person who is threatening themselves, police and threatening to kill others. This is not using the Taser for convenience; it is using the Taser as the least worst option.
The plaintiff in submissions in reply relies on the case of R v Ali Alkan [2010] NSWLC 1, in terms of assessing the reasonableness of the use of Taser. However the facts are so different that reliance on that case is unconvincing. In Alkan, there was no attempt at negotiation, and no real assessment of other options. The use of Taser there was entirely unreasonable because of the circumstances of that case.
The plaintiff in submissions in reply at [33] to [35] contends that the police ought to have warned Benn that he was to be detained. All the police actions up to that point make it clear that this was their intention, and that Benn was resisting that intention. Surrounding Benn on the roundabout by all the officers made that even clearer to him. As for warning him that if he did not comply he would be Tasered, that was not a requirement in the standard operating procedures at the time to warn. I am satisfied that a warning would most likely have led to reaction, resistance or violence by Benn which may well have rendered the Taser option unavailable.
LEPRA warnings did not apply to the Mental Health Act 2007 at that time; however, an issue has been raised in the plaintiff's submissions in reply at [36] to [44] as to whether at common law such warnings ought to have been given. The contention is that for force to be reasonable, warnings ought be given. For the reasons above, in my view it was perfectly clear by the actions of the police in negotiating, enticing and then encircling Benn what their intentions were. It was not unreasonable not to warn in all those circumstances.
In my view it is a reasonable assessment of the situation by Reddell that violent confrontation was imminent when the police took action to restrain.
In my view, it was reasonable for Reddell to reject the options of force by unarmed restraint, baton or OC in the circumstances.
The inevitable result of the above conclusions is that the plaintiff has not proved his case, and the claim is dismissed.
As liability has not been proven, it is not necessary to deal with the issues relating to damages.
Should there be an application for costs, I will consider that at a time suitable to the parties. Magistrate D Heilpern Lismore Local Court 14 April 2015

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2015

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Judgment (10 paragraphs)

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