Benn v State of New South Wales

The appeal

1. Section 39(1) of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.
2. Section 40(1) of the Local Court Act provides that a party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
3. Section 41 of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, (b) by setting aside the judgment or order, (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions or (d) by dismissing the appeal.

Grounds of appeal

1. The main issue raised in this appeal is whether the police officers involved were obliged to inform the plaintiff that he was being apprehended and the substance of the reasons for his apprehension.
2. The plaintiff appeals from the whole of the decision of his Honour Magistrate Heilpern dated 14 April 2015, on the grounds that firstly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act 2007 (NSW) absent some communication or action on the part of the police to communicate plainly to the plaintiff that he was to be apprehended, was under arrest, under compulsion or no longer a free man; secondly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act absent an explanation of the substance of the reason for his arrest under that Act; thirdly, the Magistrate erred in law in determining that electrocution of the plaintiff with the taser constituted a reasonable use of force pursuant to the Mental Health Act, in circumstances where he had not received an explanation from police that he was to be apprehended, or the substance of the reason for that apprehension; and finally, the Magistrate erred in fact and law in determining that the actions of police made their intentions so clear to the plaintiff that it was "not unreasonable not to warn" before applying force to apprehend the plaintiff under the Mental Health Act.
3. Leave to appeal in relation to ground (4) of this appeal is required pursuant to s 40(1) of the Local Court Act as it involves questions of mixed fact and law. As this ground of appeal overlaps with the others and no specific opposition was made (other than it will fail) to leave being granted, I will do so. Leave to appeal is granted in relation to ground (4).

Summary of facts

1. On 1 October 2010 at about 1.00 am, the plaintiff was sitting on the roundabout at the intersection of Barker Street and Walker Street in the Northern Rivers town of Casino when he came into contract with NSW police (J [1]).
2. Initially, two police officers attended the location, including Senior Constable Reddell. The plaintiff was intoxicated and highly agitated as a result of issues with his girlfriend. Negotiations took place between the police officers and the plaintiff. After approximately 30 minutes a further police officer arrived and negotiations continued for about 25 minutes. During that time two further police officers arrived (J [17]).
3. During the negotiations, the plaintiff made a variety of threats to the police officers, including that he would punch them in the face. He threatened to harm himself and his girlfriend (J [22]). After a period of time the plaintiff was shot with a taser in the back by Senior Constable Reddell.
4. A number of the police officers present had either direct experience with the plaintiff, or knowledge of him. This included that the plaintiff had previously been charged with assaulting police, had attempted to take a firearm from a police officer and had approached another armed with a knife (J [19]-[21). Senior Constable Reddell had recent knowledge of the plaintiff's mental health issues, having scheduled the plaintiff pursuant to s 22 of the Mental Health Act a week prior to 1 October 2010. On that occasion, the plaintiff had entered the police station requesting to be scheduled as he wanted to hurt someone or kill himself (J [20]).

The Local Court proceedings

1. The State of NSW's primary submission is that the grounds of appeal being argued in this Court were not ones raised in the Local Court. Hence, it is necessary to briefly refer to the pleading framework.

The pleading framework

1. The statement of claim pleads (at [4]): "4. On 1 October 2010, SC Reddell physically assaulted the plaintiff. Particulars (a) The assault occurred at the intersection of Walker and Barker Streets in Casino in the State of NSW, at about 1:30am on 1 October 2013; (b) The assault was effected by SC Reddell who fired and activated two probes of a TASER weapon into the plaintiff's back, as the plaintiff walked away from police; (c) Present when the plaintiff was assaulted, and assisting SC Reddell, were the following police officers: i. Senior Constable Lani-Maree Campbell (SC Campbell); ii. Sergeant Brad Walpole (Sergeant Walpole); iii. Constable James Wicks (C Wicks); iv. Senior Constable Sean Davey (SC Davey). (d) When the officers named above attended the said location, the plaintiff was in a highly agitated state. (e) Whilst all the officers were present, including SC Reddell, the plaintiff suggested to the officers that he required mental health help. (f) The said officers negotiated with the plaintiff at the said intersection for approximately one hour before SC Reddell assaulted the plaintiff as aforesaid. (g) Following the assault, the plaintiff was arrested and taken immediately to the Lismore Base Hospital Adult Mental Health Unit for formal assessment under the Mental Health Act."
2. The plaintiff is claiming damages for an assault that was allegedly committed by Senior Constable Reddell when he fired and activated two probes of a taser weapon into the plaintiff's back at a time when the plaintiff was walking away from the police officers. There is no allegation contained in the statement of claim that the plaintiff was unlawfully apprehended. The plaintiff claims aggravated, compensatory and exemplary damages.

The defence

1. The defence pleads (at [3]): "3. In answer to paragraph 4, the defendant admits that on 1 October 2010 at about 1:15am, Senior Constable Reddell used his Taser to physically restrain the plaintiff in an exercise of reasonable force to lawfully apprehend the plaintiff pursuant to sections 22 and 81 of the Mental Health Act 2007 (NSW), to take the plaintiff to a declared mental health facility. In further answer to paragraph 4, the defendant says that: a. On 1 October 2010 at approximately 12.30am NSW Police Force officers attended the intersection of Walker and Barker St, Casino; b. Senior Constable Reddell was accompanied by Senior Constable Campbell, Sergeant Walpole, Constable Wicks and Senior Constable Davey; c. On 1 October 2010 at about 12.30am, the plaintiff stood in the middle of the round-a-bout at the intersection of Walker and Barker St, Casino in a highly agitated state, and appeared distressed and aggressive; d. The plaintiff was intoxicated; e. The plaintiff threatened self-harm and also made threats of violence towards NSW Police officers, stating that he would 'break noses' if the officers moved toward him; f. The plaintiff became increasingly verbally aggressive as the NSW Police Force attendance continued, and the plaintiff raised his fists and took a defensive stance towards police when they approached; g. Senior Constable Reddell formed the view that the plaintiff was mentally ill or mentally disturbed and that it was probable that the plaintiff would cause serious harm to himself or another person, and that it would be beneficial to the plaintiff's welfare to be dealt with in accordance with the Mental Health Act 2007: h. After a period of no less than 30 minutes negotiating with the Plaintiff, Senior Constable Reddell formed the view that the most appropriate tactical option available in the prevailing circumstances to both control the threat and physically restrain the plaintiff was the use of his Taser; i. In consideration of the facts and circumstances, Senior Constable Reddell made the decision to use his Taser to apprehend the plaintiff as a lawful exercise of reasonable force under Section 81 of the Mental Health Act 2007; j. The plaintiff was then conveyed to Lismore Base Hospital for treatment, pursuant to sections 22 and 81 of the Mental Health Act 2007. The defendant otherwise does not admit paragraph 4 or the particulars set out therein."
2. Although it was not an issue raised in the statement of claim, at [3] in the defence it is pleaded that the apprehension of the plaintiff was lawful under the Mental Health Act.

The relevant law

1. The plaintiff claims that following the assault, he was "arrested… under the Mental Health Act". But, s 22 of the Mental Health Act uses the term "apprehend", not "arrest". It is common ground that the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) concerning arrest do not apply with the exception of s 4.
2. Section 4 of the Law Enforcement (Powers and Responsibilities) Act preserves the operation of common law with respect to powers of police. It reads: "4 Relationship to common law and other matters (1) Unless this Act otherwise provides expressly or by implication, this Act does not limit: (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace."
3. It is common ground that the police officers were exercising power pursuant to ss 22 and 81 of the Mental Health Act.

The Mental Health Act

1. Sections 22 and 81 of the Mental Health Act relevantly read: "22 Detention after apprehension by police (1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that: (a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law. (2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility. … 81 Transport of persons to and from mental health facilities and other health facilities (1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility: … (c) a police officer, … (2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may: (a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and (b) restrain the person in any way that is reasonably necessary in the circumstances. …"
2. Hence, a police officer who finds a person who is mentally disturbed or mentally ill and believes on reasonable grounds the matters set out in ss 22(1)(a) and (b) of the Mental Health Act can apprehend the person and transport him or her to a mental health facility. The police officer may use reasonable force and restrain the person in any way that is reasonably necessary in the circumstances. (ss 81(2)(a) and (b)).
3. The Mental Health Act neither provides for nor excludes the requirement at common law that the person when taken to a mental health facility has to be told why that is being done.

The common law

1. The parties referred to two authorities R v Inwood [1973] 2 All ER 645; [1973] 1 WLR 647 and State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496. Neither of these cases were brought to the attention of the Magistrate, although Christie v Leachinsky [1947] 1 All ER 567; [1947] AC 573 was mentioned by counsel for the plaintiff.

R v Inwood

1. In R v Inwood, an English Court of Appeal case, the appellant went voluntarily to a police station to help the police with their enquiries into certain thefts and handling of stolen goods which had taken place. After some questioning a police officer said to the appellant, "I propose to charge you with theft... and dishonestly handling..." The police then began the appropriate formalities, such as taking fingerprints and preparing documents. After some time the appellant decided to leave. He was prevented from so doing by two police officers and in the resulting struggle the police officers were injured. The appellant was charged with assaulting a police officer in the execution of his duty. The trial judge directed the jury as a matter of law that the words of the police officer and the commencement of formalities meant that the appellant was no longer merely a suspect, free to leave the police station at any time, but had been adequately placed under arrest and that the police officers were therefore acting in execution of their duty in preventing him from leaving. The appellant was convicted and appealed. The appeal was allowed.
2. In a joint judgment, Caulfield J, Stephenson and Orr LJJ recorded that counsel had conceded that there was an obligation on the police officers to make it clear to the appellant that he had to remain until actually charged and then until bailed, but had submitted that on the facts (which were not disputed) that the appellant must have known he was under compulsion to stay.
3. At 650 Caulfield J and Stephenson and Orr LJJ stated: "The appellant had been to this police station before in connection with the same enquiry and had been allowed to go free. He was told on the occasion of the assaults that he would be released when the police enquiries were completed, with nothing said about bail. He was a man of good character, who had never before been asked to go to a police station to help the police in their enquiries. Nevertheless, the jury might have concluded that the appellant must have understood perfectly well that he was under arrest and no longer at liberty, if they had been allowed to do so. They might well have reached this conclusion without the direction which the judge gave, but we cannot be sure. For this reason then there was, we think, a misdirection in withdrawing this question from the jury and the ruling which the judge gave was wrong. …"

State of NSW v Riley

1. In Riley, the NSW Court of Appeal held that s 24 of the Mental Health Act 1990 (NSW) (the predecessor to s 22 of the Mental Health Act 2007) if its provisions were otherwise satisfied, it did not authorise an apprehension and taking away of a person to hospital without telling that person the reason for his or her apprehension. The brief facts were that the car in which the respondent was travelling was pulled over by police. The respondent was apprehended, his hands were handcuffed and he was placed face down on the bonnet of a police car. The handcuffs were too tight and caused injury to his wrists. Shortly after he was handcuffed he was put inside a paddy wagon. A decision was then made by Sergeant Wilson to take him to Moruya hospital for psychiatric assessment. He was transported there in the paddy wagon. After examination at Moruya hospital, he was scheduled and taken by police to Batemans Bay police station and then by ambulance to Kenmore hospital at Goulburn. In relation to these events the respondent claimed assault, battery and false imprisonment.
2. In relation to the assault, the primary judge found that the power of arrest conferred by s 352 of the Crimes Act 1900 (NSW) was subject to the requirements of the common law, including the requirement that the arresting officer inform the person arrested of the true ground on which he or she was being arrested: see Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 at 85. The primary judge held that this was not a case where the requirement did not arise for the reason that the respondent must have known what he was being arrested for. He held that the same requirement applied to rights of arrest and/or detention given by ss 357(2) and 357E of the Crimes Act: see Pedro v Diss [1981] 2 All ER 59; (1980) 72 Cr App Rep 193.
3. The primary judge concluded that there were sufficient reasons for Sergeant Wilson to conclude that the respondent was a danger to himself and/or others, and that it was appropriate to take action under the Mental Health Act 1990; and that s 24 of that Act was not subject to the common law requirements as to arrest. Accordingly, the primary judge held that from the time Sergeant Wilson issued the instructions for the respondent to be taken to Moruya hospital, the respondent's detention was authorised by that section. He further held that, if he was wrong on this, any continuing unlawful imprisonment ended with the scheduling of the respondent by Dr Beazley.
4. In Riley, Sheller JA addressed the issue as to whether s 24 of the Mental Health Act 1990 is subject to the common law requirements of arrest. His Honour at [25] and [30] stated: "[25] …I can imagine no reason why the common law would allow a police officer so to apprehend a person without a warrant and without telling that person the reason for that person's apprehension any more than if that person was not mentally disturbed and the member of the police force had reasonable grounds for believing that the person had committed an offence. Why would the police officer be excused from making known the reason for the arrest when the person appears to be mentally disturbed? It seems to me, with due respect, every bit as important that a person who, for example, is to be taken from where they live to a hospital and kept there be told at the earliest possible moment of time why that is being done. As was pointed out in the House of Lords it is at the time of arrest that that person should have the opportunity to explain that there has been a misunderstanding or to call attention to other matters which would show that the facts properly understood would not permit his or her being taken to or detained in a hospital. An obvious example would be mistaken identity. As in the case where a person is arrested without warrant on suspicion of committing a crime, there may be exceptional circumstances where no such statement is required from the person who proposes to take the other to a hospital on the ground that that other person is a mentally ill or mentally disordered person. This is not such a case. … [30] In my opinion, and with due respect, none of the matters adverted to by the trial Judge persuade me that the law should contemplate enabling a member of the police force who finds a person in any place who appears to be mentally disturbed, even if the other requirements of s24(1) are satisfied, to apprehend that person and take him or her to a hospital without telling the person why that person is being apprehended. …"
5. Also in Riley, Hodgson JA stated at [76] to [79], [84] and [89] to [92]: "[76] The common law rule is that it is a condition of lawful arrest that, with some exceptions, a person arrested is entitled to be told why he or she is being arrested: Christie v Leachinsky [1947] AC 573. In that case, Viscount Simon stated the following five propositions: 'If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.' [77] He continued: 'There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.' [78] Lord Simonds at 591 said this: 'Putting these things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested?' [79] He set out some exceptions at 593, as follows: 'Again, I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven. Nor, obviously, is explanation a necessary prelude to arrest where it is important to secure a possibly violent criminal. Nor again, can it be wrongful to arrest and detain a man upon a charge, of which he is reasonably suspected, with a view to further investigation of a second charge upon which information is incomplete.'
6. Hodgson JA continued: [84] In this case, at least once the possibility of violence, and in particular the use of a weapon, had been averted, the police could not continue to detain the respondent unless a proper arrest was made or a decision taken under the Mental Health Act. I accept that it was reasonable that the police have some time to determine what to do; but in this case there was a delay in the order of at least forty or fifty minutes, and in my opinion, in the circumstances of this case, a delay of that extent could not be justified as part of reasonably necessary steps to prevent harm. Furthermore, necessity could not possibly justify the over-tight application of handcuffs found by the primary judge. … [89] [Senior counsel for the State of NSW] submitted that the power given by s 24 was different from an ordinary power of arrest, in that it was likely to be required when the person was not in a condition where the provision of an explanation would be readily understood or in the person's best interests. The provisions of Division 1 of Pt 2 of the Act amounted to a code, and included in s 30 a detailed provision as to how a person detained under those sections was to be informed. This was explicable by the consideration that it was in the person's best interests that a trained person perform the delicate task of informing the person why he or she has been deprived of liberty and what his or her rights are. [90] I find this a difficult question. In my opinion, the mere fact that a person dealt with under s 24 is likely to be mentally disturbed is insufficient in itself to displace the common law rule. Even at common law, there are exceptions and, in my opinion, if the circumstances were such as to indicate that communication of an explanation would be pointless, the common law principle would not require a pointless exercise. But there are considerations supporting the view of the primary judge. Section 24 appears in a series of sections enabling persons other than police officers to take and detain persons in certain circumstances; and they explicitly provide in s 30 for an explanation to be given by the relevant medical superintendent. There are some grounds for considering this series of sections as a code, and s 30 could be taken as an indication of the view of the legislature that it is desirable that the mandatory explanation be given by a medical expert, rather than a police officer or other person acting on a certificate under s 2. Furthermore, the nature of what is done may vary widely, from persuasion through minimal physical guidance to outright application of force; and there may be circumstances in which an inexpert explanation of what is happening could inflame a delicate situation. [91] On the other hand, as in the case of an ordinary arrest, a person deprived of liberty under the Mental Health Act is entitled to resist arrest and detention if this is not justified, providing a powerful reason why the person should be given information as to why the arrest and detention was taking place. For the person to oppose a police officer acting under s 24 would amount to resisting an officer in the execution of his duty, and thus be an offence under s 58 of the Crimes Act. Furthermore, the right to be informed of the reason for deprivation of liberty is an important common law right, one that would not be displaced without a clear indication of legislative intention. [92] For these reasons, and the reasons given by Sheller JA, my opinion is that the Mental Health Act did not displace the common law right to be informed of the reason for deprivation of liberty. In that respect, the primary judge was in error."
7. Riley establishes that the provisions contained in the Mental Health Act do not displace the common law right for a person to be informed of the reason for apprehension or deprivation of liberty. So, if the plaintiff's apprehension were to be lawful, the police officers were obliged to have informed him that he was deprived of his liberty unless a common law exception applied. Technical or precise words need not be used.

The hearing in the Local Court

1. On 4 and 5 December 2014, these proceedings were heard by the Magistrate at the Local Court Lismore.
2. The opening address by the State of New South Wales was very brief. It is as follows: "The defendant in these proceedings is the State of New South Wales. The Court alleged these assaults or assault and battery of a particular person who is alleged to have been the tortfeasor is Senior Constable … Reddell." (T1.17-23)
3. No opening address was given on behalf of the plaintiff.
4. The main issue at trial was the use of the taser and whether it was reasonable. Although it was not pleaded as an issue in the statement of the claim, evidence about whether the plaintiff was given an explanation for his apprehension was mentioned by the plaintiff and Senior Constable Reddell in their witness statements and during cross examination. The plaintiff's evidence was that he was not aware why the police wanted to detain him.
5. During cross examination, the following exchange between counsel for the State of NSW, Mr Bateman, and the plaintiff took place: "Q. Did Senior Constable Reddell say to you, 'Andrew, stop or you are going to be Tasered.' A. Yeah, yeah, he said something like that. Yeah. Q. And you did not stop did you? A. I told him I was going home. Which is all he wanted to do - he wanted me to do and when I seen all the police I just said, 'Okay, I'm going home,' and then that's when he's pulled the Taser. Q. You were told by police, were you not, 'No, you're not going home in your state of mind after what you've said'? A. No. No, don't remember that. They were saying to get in the truck." (T17.39-50).
6. Senior Constable Reddell's evidence was that that the plaintiff made threats to kill himself; and after forming the view on reasonable grounds of the matters in s 22(1)(a) and (b), he communicated to the plaintiff that they could take him to the hospital.
7. Both parties supplied written submissions and supplementary submissions. In the submissions for the State of NSW at [3], counsel wrote that: 3. "It is of note that there is no claim for false arrest/wrongful imprisonment. That is, there is no challenge by the Plaintiff to the necessity of the arrest, only to the force which was used to effect it. This is understandable as there was abundant evidence to justify the Plaintiff being apprehended pursuant to the Mental Health Act 2007 on that evening: his mood swings, his threats of self-harm, his threats against his girlfriend and his earlier mental history."
8. There is reference to lack of explanation by the police officers in the plaintiff's supplementary submissions at [33] to [35] and [44]: "33. No evidence was given for the defence to suggest that Mr Benn was advised that Police had concerns about his safely and about that of the community and particularly his partner: a. That they wanted to have him assessed at the hospital; b. That for that purpose they had a power to detain him, by force if needs be; c. That effectively he was no longer free to leave but detained by order of Police; d. That he was required to get in the Police vehicle for transport to the hospital; e. That failure to comply might be an offence; f. That force would be used if he did not comply; g. That he would be covered with a Taser, and it would be fired, if he physically resisted. 34. Perhaps if the police position had been articulated with something approaching this clarity, even the angry Mr Benn would have understood and complied. 35. Certainly though, the plaintiff submits, before the application by police of the second most lethal form of force at their disposal can be found objectively reasonable, on a retreating mental health candidate no less, at least some attempt to explain what Police are doing and why, and what is required of the subject, must be required. … 44. Whether because the common law requires it, or simply taking the common law as a guide to how 'reasonable' force will be interpreted in the Mental Health Act, the plaintiff submits that some degree of pre-warning would be required before Taser operation could be found reasonable."

The Magistrate's decision

1. On 14 April 2015, the Magistrate handed down his written judgment. At [2] the Magistrate stated "Benn sues the State of NSW for assault, also known as battery, a species of trespass to the person."
2. The Magistrate at [3] and [4] sets out the onus of proof as follows: "[3] 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. [4] 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 used was reasonable in the circumstances. This includes proving that the force was not excessive."
3. In other words, if the plaintiff proved that an assault occurred, the onus shifted to the State of NSW to establish firstly, that the act occurred with lawful justification and secondly, that the use of force was reasonable and not excessive.
4. I should mention that the Magistrate preferred Senior Constable Reddell's evidence over that of the plaintiff. Although there were inconsistencies in Senior Constable Reddell's evidence, the Magistrate examined these inconsistencies but overall found him to be a credible witness. This was the first time Senior Constable Reddell had used a taser and fired one round (not two rounds as the plaintiff had alleged). It hit the plaintiff in the back and an assault occurred (J [27]).
5. After finding that the plaintiff was assaulted, the Magistrate then addressed the next issue, namely whether the State of NSW had established, on the balance of probabilities, whether the assault had occurred with lawful justification and that the force used was reasonable and not excessive in the circumstances.
6. The Magistrate stated at [52] that where the plaintiff, a 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 had been lengthy negotiations the answer is that the use of the taser may be justified, if the other options are properly considered and rejected.
7. His Honour concluded at [58] and [59] that it was a reasonable assessment of the situation by Senior Constable Reddell that violent confrontation was imminent when the police took action to restrain and it was reasonable to detain the plaintiff. The Magistrate made a finding that any choice had risks of injury both to the police and the plaintiff, it was likely that the plaintiff was going to resist whatever option was used; and it was reasonable for Senior Constable Reddell to reject the options of force by unarmed restraint, baton or OC spray in the circumstances (J [47]). Hence, the Magistrate made a finding there was lawful justification and the use of the taser was reasonable.
8. At [39] to [43], [56] and [57] of his written reasons, his Honour addressed the decision to detain. His Honour stated: "The Decision to Detain [39] The submissions by Benn contend that there was no need to detain [him]. In my view it was reasonable to detain him and take him to hospital. [40] 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.' [41] 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…' [42] 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. [43] 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. … [56] The plaintiff in submissions in reply at 33 to 35 contend 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. [57] LEPRA warnings did not apply to the Mental Health Act 2007 at that time, however, an issue has been raised in the plaintiffs 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."

Plaintiff's submissions

1. Counsel for the plaintiff submitted that it is one thing for the officers to reasonably arrive at a conclusion that they ought to detain the plaintiff for assessment under the Mental Health Act; and that decision is not challenged on appeal. However, it is another question to inquire whether, having made such a determination, the officers complied with the law in executing that detention.
2. Counsel for the plaintiff submitted that paragraphs [39] to [43] of the Magistrate's judgment are important because they demonstrate a conflation of two distinct notions, the reasonable decision to detain [39] and moving to the "restraint phase" [43].
3. According to the plaintiff, his case is not one where his mental disturbance would have interfered with his capacity to understand the reasons for his arrest or otherwise not have been in his best interest. Counsel says that on the contrary, the plaintiff had asked to go to the hospital and the police had suggested that they would take him. He had certainly been erratic in his attitude to that option, but it was clearly discussed and that it would have been a small step for the police to inform the plaintiff that he was to be taken to the hospital and that the law provided this could be done without his consent and if necessary by force.
4. Counsel for the plaintiff then referred to paragraph [57] of the Magistrate's decision where the Magistrate found that "it was perfectly clear by the actions of the police in negotiating, enticing and then encircling Benn what their intentions were." According to the plaintiff, whether a police officer's intention to arrest is clear to a subject is not a sufficient basis to make out an exception to the rule. The person arrested is entitled to know the substance of the reason why. It would not aid police in the case of arrest on a charge and it does not aid police in the case of arrest under the Mental Health Act. It follows he says that the Magistrate erred in finding that it, "was not unreasonable not to warn in all those circumstances."
5. Once it is established that the common law of arrest applies to detention under the Mental Health Act, the plaintiff says that it follows that other common law requirements for a lawful arrest also apply. It has long been a requirement for a valid arrest that the officer make plain to the subject that they are arrested and no longer free: see R v Inwood.
6. Counsel for the plaintiff further submitted that there is no evidence to suggest that the plaintiff was informed, prior to being shot with the taser, that he was under arrest, detained or otherwise no longer free to leave. According to the plaintiff, in the hour or so that he was engaged in negotiations with the police, it would have been a simple matter to advise him that a decision had been made and he was no longer free to leave.
7. Also the plaintiff submitted that the Magistrate erred in law in finding that it was not unreasonable not to warn the plaintiff that he was no longer free to leave. Counsel says that it is clear by the manner in which the plaintiff went to leave that he did not understand this. He did not attack any officer or run away, he simply went to walk home. His actions demonstrate that he did not understand that he was not free to leave and he did not consider that he would have to run or take violent action to resist police efforts to detain him.
8. Counsel further submitted that if there was any doubt that the common law applies strictly, then failure to clearly announce to the plaintiff that he was not free and explain some basis for his arrest are properly considered in deciding the question of reasonableness. Counsel says that the Magistrate erred in law in finding that it was not unreasonable not to warn the plaintiff prior to firing the taser (J [57], AB 540).
9. The Magistrate expressed his finding that it was not unreasonable not to warn the plaintiff following a conclusion that, from all the circumstances, it was perfectly clear what police intentions were. Counsel for the plaintiff submitted that this finding of fact is against the weight of the evidence, disclosing error, which erroneous finding then infects a finding of law.

Submissions for the State of NSW

1. As previously stated, the State of NSW submitted that at no time up to the conclusion of the hearing before the Magistrate was the lawfulness of the plaintiff's apprehension under the Mental Health Act in issue or raised as part of the plaintiff's case and one that it had to meet. According to counsel for the State of NSW, this appeal raises an entirely different issue to that which was litigated in the Local Court.
2. The State of NSW referred to Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, in which the High Court approved in a passage in Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
3. In Coulton v Holcome, the High Court referred to a passage of the Court of Appeal in Holcombe v Coulton (unreported, NSW Court of Appeal, 25 June 1985) which recognised the importance of this principle in the public interest: "...the finality of litigation; the difficulty of inducing an Appeal Court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the Appeal Court."
4. Also, in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.
5. Counsel for the State of NSW submitted that this ground of appeal, as with the three previous grounds, again clearly offends the longstanding principle referred to in Coulton v Holcombe and for that reason it should fail.
6. Further, according to the State of NSW, the factual finding that the police intentions must have been perfectly clear to the plaintiff is clearly justified by the evidence and is not one which is susceptible to appeal, particularly when the question was not raised or explored during the hearing.
7. The State of NSW also drew this Court's attention to s 56 of the Civil Procedure Act 2005 (NSW) which requires the Court and the parties in litigation to identify and address the real issues between the parties. The real issue in the proceedings before the Magistrate was whether the use of force was reasonable in the circumstances. The State of NSW submitted that the Magistrate determined that issue, the only issue that was before him, and made no error of law, or error of fact and law, in doing so.
8. Finally, counsel for the State of NSW submitted that as to the asserted error of law that "it was not unreasonable not to warn in all those circumstances", it must be remembered that the issue as to what warnings may or may not have been given, apart from the warning of taser deployment, was not raised or explored in the pleadings or the evidence. In dealing with the supplementary submissions subsequently made, the Magistrate reviewed the evidence to the extent that such evidence enabled findings on the issue and included such findings. (J [56] and [57]). Counsel for the State of NSW submitted that such factual findings were correctly made and significantly, there was no affirmative finding that the police failed to warn or explain to the plaintiff their intentions.

Conclusion

1. The pleading in the statement of claim did not allege that the plaintiff was unlawfully detained or apprehended. What was pleaded in the statement of claim and was also in dispute at trial was whether the plaintiff was assaulted by a police officer when he fired and activated two probes (a finding was made by the Magistrate that there was only one probe) of a taser weapon into the plaintiff's back and whether firstly, the police had lawful justification and secondly, whether they used reasonable force.
2. If the plaintiff proved that he had been assaulted (which he did) the State of NSW had to prove, on the balance of probabilities, that the police officer had lawful justification, used reasonable force and that the force used was not excessive. It if had been pleaded that the plaintiff had been unlawfully detained or apprehended, the onus would have also been upon the State of NSW to prove that the plaintiff's detention or apprehension was lawful.
3. When exercising the power under s 24 of the Mental Health Act, the police officers were obliged to inform the plaintiff that he was being apprehended and taken to a mental health facility, save for exceptional circumstances. The State of NSW had to establish, on the balance of probabilities, that the plaintiff had been informed of the reasons for his apprehension or to put it another way, that he was to be deprived of his liberty. Had the State of NSW been aware that this was an issue in dispute, which was not apparent from the pleadings nor during the hearing, it may have elected to run its case in a different way. It would have elicited more evidence on this topic or an explanation that the plaintiff himself had produced the situation which made it practically impossible to inform him that he was being detained. Nevertheless, some evidence was adduced on this topic.
4. The plaintiff agreed that Senior Constable Reddell said something to him like "Andrew, stop or you are going to be tasered." The plaintiff also agreed that he was told by police officers "to get in the truck" and that he did not do so. Thus there was evidence that the plaintiff was told that if he did not stop he would be tasered and he had to get into the truck and walking home was no longer an option. This denotes to the plaintiff that he had to "get in the truck". In other words the plaintiff was being told he was being apprehended and deprived of his liberty.
5. The plaintiff was also asked in cross examination whether he was told by the police officers that they would not allow him to go home as he was threatening to kill himself. The plaintiff denied that he threatened to kill himself. Senior Constable Reddell deposed that the plaintiff was informed of the police officers wish to take him to hospital to protect him from harming himself. This version of events was expanded upon in cross examination and supported by the evidence of the other police officers.
6. So far as whether it was reasonable for the police not to warn the plaintiff about the tasering is concerned, on the way the case was run in the Local Court the Magistrate was satisfied that a warning would most likely have led to reaction, resistance or violence by the plaintiff which may well have rendered the taser the only option available. (J [56]).
7. Had it been put in issue that the apprehension was unlawful, then counsel for the State of NSW would have had the opportunity to direct further questions to the plaintiff and police officers as to what the plaintiff was told by the police officers in relation to his liberty being taken away. It appears that the plaintiff's level of agitation increased and decreased at various times during the hour or so of negotiation. Also, the State of NSW would also have had the opportunity to elicit evidence to support a finding that due to the plaintiff's actions it was impossible to inform him that he was being detained and was being taken to a mental health facility.
8. The plaintiff's counsel, in his supplementary submissions in the Local Court, submitted that no evidence was given to suggest that the police officer had concerns for the safety of himself, the community, his partner and perhaps if he had done so the plaintiff would have understood and complied. Those submissions also stated that before the police used the taser there should have been at least some attempt to explain what they were doing, why and what was required of the plaintiff. However, at paragraph [44] of these submissions the plaintiff linked the pre-warning to be given before the use of the taser operation could be found to be reasonable.
9. So far as counsel for the plaintiff alleges that the Magistrate's finding that it was "not unreasonable not to warn the plaintiff prior to firing the taser" was against the evidence and an error of law, the Magistrate at [56] is addressing the plaintiff's further submissions at [33] to [35]. I accept that the Magistrate was perhaps incorrect in finding it was not unreasonable not to warn the plaintiff prior to firing the taser in light of the uncontradicted evidence that the plaintiff was told if he did not stop he would be tasered by Senior Constable Reddell. But, this error does not advance the plaintiff's submissions.
10. On appeal the plaintiff is seeking to run a new argument that he was unlawfully apprehended or detained. He had failed to raise this issue in the pleadings during the hearing when he had an opportunity to do so. I accept that the plaintiff made reference to the failure to warn in his supplementary submissions but by then it was too late. Had the plaintiff made it clear he was alleging unlawful detention or apprehension under the Mental Health Act, the State of NSW would have had the opportunity to make different forensic decisions in the pleadings or at the commencement of the trial directing questions to the plaintiff's witnesses and making submissions on this issue.
11. It is my view that the Magistrate did not err in law nor did he err on the issue of mixed fact and law (ground 4). The plaintiff's grounds of appeal fail. The result is that the appeal is dismissed.
12. The decision of his Honour Magistrate Heilpern dated 14 April 2015 is affirmed. The summons filed 19 June 2015 is dismissed.
13. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis as agreed or assessed. The Court orders that: (1) Leave to appeal in relation to appeal Ground 4 is granted. (2) The appeal is dismissed. (3) The decision of his Honour Magistrate Heilpern dated 14 April 2015 is affirmed. (4) The summons filed 19 June 2015 is dismissed. (5) The plaintiff is to pay the defendant's costs on an ordinary basis as agreed or assessed.

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: 13 November 2015