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[2025] NSWDC 487
District Court of NSW
2025-11-26
Abadee DCJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Music v State of New South Wales [2025] NSWDC 487
Hearing dates: 21, 22, 23, 24 July, 1 August, 10, 11, 12, 13, 14 November 2025
Date of orders: 26 November 2025
Decision date: 26 November 2025
Jurisdiction: Criminal
Before: Abadee DCJ
Decision: See paragraph [503].
Catchwords: TORTS – intentional torts – police powers – trespass to land – entry into plaintiff’s residential premises with intention to detain plaintiff – battery – use of capsicum spray on plaintiff – restraint of plaintiff on stretcher and conveyance, by ambulance, to mental health facility – false imprisonment
MENTAL HEALTH – restraint and detention of person who is apparently mentally disturbed – whether subjective and objective requirements satisfied
TORTS – defences – whether entry into premises lawful – whether application of force to plaintiff reasonable or reasonably necessary – whether application of physical force on plaintiff carried out in self-defence – consideration of the objective standard for reasonable force and proportionality
WORDS AND PHRASES – “intent to cause injury” – Civil Liability Act 2002 (NSW), s 3B – characterisation of the injury the subject of the claim – whether the police officer actually and subjectively intended the injury
DAMAGES – causation – whether wrongful conduct materially contributed to exacerbation of mental harm – chance that loss of earning capacity would have occurred without the tortfeasor’s contribution
DAMAGES – claim of exemplary damages (in common law) – where exercise of statutory power inflicted injury – where power exercised negligently for involving a lapse of professional judgement
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5A, 16, 21, 51, 52, 53
Crimes Act 1958 (Vic), s 462A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9,10, 230, 231
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B
Mental Health Act 2007 (NSW), s 22, 81
Police Act 1990 (NSW), s 6
Cases Cited: Amaca Pty Ltd v Booth (2011) 246 CLR 36
Benn v New South Wales [2016] NSWCA 314
Christie v Leachinsky [1947] AC 573
Croucher v Cachia (2016) 95 NSWLR 117
DC v State of New South Wales [2016] NSWCA 198
Dean v Phung [2012] NSWCA 223
Diamond v Minter [1941] 1 KB 656
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658
Gebrehiwot v Victoria [2020] VSCA 315
Hamilton v State of New South Wales (No.13) [2016] NSWSC 1311
Hannam v State of New South Wales (No.9) [2022] NSWSC 648
Harnett v Body [1922] 2 KB 517
House v The King (1936) 55 CLR 499
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Kershaw v R [2024] NSWCCA 27
Lamb v Contogno (1987) 164 CLR 1
McIntosh v Webster (1980) 43 FLR 112
Moonen v Film and Literature Board of Review [2000] 2 NZLR 9
New South Wales v Ibbett (2006) 229 CLR 638
New South Wales v Ibbett (2005) 65 NSWLR 168
New South Wales v Talovic [2014] NSWCA 333
New South Wales v Tyszyk [2008] NSWCA 107
Optus Administration Pty Ltd v Wright bht Wright [2017] NSWCA 21
Owlstara v New South Wales [2020] NSWCA 217
Pham v Commissioner of Victim Rights [2019] NSWSC 1060
Prior v Mole (2017) 261 CLR 265
Queensland v Masson [2020] HCA 28; (2020) 381 ALR 560
R v Turner [1962] VR 30
R v White [2025] NSWCCA 111
R Lawyers v Mr Daily [2025] HCA 41
State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549
State of New South Wales v Bouffler [2017] NSWCA 185
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Madden [2024] NSWCA 40
State of New South Wales v McMaster (2015) 91 NSWLR 666
State of New South Wales v Randall [2017] NSWCA 88
State of New South Wales v Riley (2003) 57 NSWLR 496
State of New South Wales v Robinson [2016] NSWCA 334
State of NSW v Skinner [2022] NSWCA 9
State of New South Wales v Williamson (2012) 248 CLR 417
Tabet v Gett (2010) 240 CLR 537
The Korean Times Pty Ltd & Anor v Un Doc Pak [2011] NSWCA 365
Woodley v Boyd [2001] NSWCA 35
Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160
Texts Cited: Nil.
Category: Principal judgment
Parties: Linda Music (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
Mr S Grey (Plaintiff)
Mr M Gollan (Defendant)
Solicitors:
Hugo Law Group (Plaintiff)
Wotton Kearney (Defendant)
File Number(s): 2023/00261755
Publication restriction: Nil.
REASONS FOR JUDGMENT
Introduction
Liability issues
Uncontroversial facts
Ms Music receives a call from Allianz
Police constables knock on the front door and try to speak to Ms Music
The police officers enter into the premises
Police search for and find Ms Music
The use of capsicum spray on Ms Music
Ms Music is handcuffed
Ms Music is restrained in the ambulance
Disputed facts
Ms Music’s family issues and distrust of police
The circumstances leading to the forced entry into Ms Music’s home
Ms Music’s evidence
Mr Settineri’s evidence
Ms Music’s explanation for why she did not open the front door
The police officers’ evidence
Constable Casey
Constable Alo
LSC Cashmere
Circumstances leading up to and including the use of the capsicum spray
Ms Music’s evidence
Photographs
Evidence from the police officers
Constable Casey
LSC Cashmere
Constable Alo
Escorting (by handcuffing) Ms Music to the ambulance
Ms Music’s evidence
Evidence from the police officers
Assessment of the witnesses
The plaintiff
Mr Settineri
The police officers
Statutory provisions and principles relevant to liability issues
Mental Health Act
Provisions in LEPR Act
Police Act
Civil Liability Act
Submissions
General
Trespass to land claim
Submissions
Ms Music’s submissions
The State’s submissions
Determination
The battery claim
Submissions
Ms Music’s submissions
The State’s submissions
Ms Music’s submissions in reply
Determination
Self-defence
Reasonable force and reasonable necessity
The false imprisonment claim
Submissions
Ms Music’s submissions
The State’s submissions
Determination
Damages issues
The appropriate legal regime
Overview
Submissions
Ms Music’s submissions
The State’s submissions
Consideration
Causation
Ms Music’s evidence
Other evidence
Recorded instances of suicidal ideation and past suicide attempts
Mental health assessment on 30 September 2021
Mental health issues, assessments and treatment subsequent to 30 September 2021
Ms Music’s evidence
The plaintiff’s counsellors and general practitioner
Contact with Mr Settineri and her son in September–October 2025
Medico-legal reports
Dr Stephen Allnutt’s report
Peter Gough’s report
Submissions
Ms Music’s submissions
The State’s submissions
Ms Music’s submissions in reply
Consideration
Quantum
General damages or non-economic loss
Submissions
Determination
Aggravated and exemplary damages
Principles
Submissions
Determination
Loss of earning capacity
Treatment & out of pocket expenses
Domestic care
Section 53 of the CL Act
Summary on quantum
Costs
Orders
At about 5:40pm on 30 September 2021, the plaintiff, Ms Linda Music, positioned herself in a garden shed in a neighbouring backyard near her home located at Tenby Street, Blacktown. She was 48 years of age at the time and was a person of good character, to the extent that she had had no prior criminal convictions. She had, however, several earlier interactions with police leading up to that day (not involving any personal misconduct by her) which led her to develop an ingrained resentment, fear and mistrust of police officers. Partly manifesting that fear, Ms Music was in the garden shed because she was hiding from the police.
After Ms Music emerged from the garden shed and, in the presence of multiple police officers, LSC Benjamin Cashmere [1] sprayed capsicum spray into Ms Music’s face. Ms Music was thereafter handcuffed and escorted by police officers to an ambulance on the driveway outside of her home and forcibly placed, as well as being restrained (continuing to be handcuffed) on a stretcher inside the ambulance. The ambulance transported her to Blacktown Hospital at around 6pm where she continued to be observed by police until she was later discharged at around 10pm and she returned to her home. The discharge occurred after hospital staff had determined that she was neither mentally ill nor at risk of self-harm.
The police officers who were involved said that they thought it was ‘probable’ that she would attempt to kill or cause serious physical harm to herself and they thought it was beneficial for her to be assessed in a hospital under s 22(1) of the Mental Health Act 2007 (NSW) (the ‘MH Act’). They entered into her townhouse by force and looked for her, but they could not find her. She had, as indicated, fled to a neighbouring property. A search was instituted, which featured an extensive use of police resources before she was found, about 45 minutes later in a neighbour’s backyard. After she was subjected to the capsicum spray, which temporarily incapacitated or disabled her, she was handcuffed and detained. She was then escorted to an ambulance outside the property, restrained (again partly by handcuffing) and driven by ambulance to a hospital. To the extent that force was applied to Ms Music, the police officers justified this partly on the basis that it was necessary to do so in order to get her to the hospital, but alternatively, also partly on the basis of self-defence.
On 17 August 2023, Ms Music commenced this proceeding. She claims damages (including aggravated and exemplary damages) for what she says are psychiatric injuries resulting from the events that occurred that day. These were particularised in her Statement of Particulars as being chronic post-traumatic stress disorder (PTSD) with associated depressive and anxiety symptoms. She brings actions in trespass to land and assault and battery, and false imprisonment.
She commenced the proceeding against the State which, it is common ground, [2] would be vicariously liable for the conduct of the police officers who allegedly committed the tortious acts.
Ms Music’s lawyers prepared a chronology, based on Ms Music’s anticipated evidence. As is conventionally the case, the content of the chronology was affirmed by Ms Music and was thereafter tendered (Exhibit A). The State did not take issue with the accuracy of the preponderant part of the chronology, being a transcript of the conversations that Ms Music (and Mr Dominic Settineri, who was present at her home on the afternoon of 30 September 2021) had with the police officers; although it relies upon other facts that do not form part of the chronology. In due course, the body-worn camera (BWC) footage taken by two police officers was played. There was also some CCTV footage that I observed.
I will start with the facts which are or should be uncontroversial, including admissions on the pleadings, as well as those which emerge from the plaintiff’s chronology, [3] and from my own perception of what appeared from the BWC and CCTV footage. Where references are made to what was heard in the body-worn camera footage, I have adapted excerpts from the chronology.
At 4:00pm on 30 September 2021, Ms Music received a telephone call from an ‘Ian’ (whose surname was unidentified), a representative of Allianz Insurance. She was present in her home. Ms Music drew a layout of the internal part of the home, which was a two-storey townhouse (Exhibit D). She had rented it since November 2020 (Exhibit C) for a period of one year, with provision for the lease to roll over. She was there with Mr Dominic Settineri. Ms Music and Mr Settineri had been in a de facto relationship for about five years through which their son, Brandon, was born. But they had separated in the early 2000s. As will emerge, their relationship was tempestuous, but they were together on that day. That was because they had heard news about their son, Brandon, who, while under the influence of the drug ice, had recently caused substantial property damage when driving Ms Music’s motor vehicle. They were in the process of looking through paperwork; trying to support their son. It is agreed that in the course of that call, by the words she used, Ms Music indicated that she threatened to take her life. What she actually said, and more particularly the tone and context in which she said it, is in issue.
At about 4:25pm, Constables Dalasi Alo and Joel Casey arrived at Ms Music’s home. They were at the plaintiff’s premises as they had been notified by Allianz of the call that Ms Music had recently had with its representative. Evidently, police were informed of Ms Music’s verbal threat to kill herself. The State accepts that the police officers attended the premises without any suspicion that Ms Music had committed any offence.
Constables Alo and Casey knocked on the front door of the townhouse, announced that they were police and said that they were there to speak with Ms Music. Ms Music did not open the front door. There is a dispute as to the discussion between Ms Music and the officers at this point; as well as how Ms Music was behaving. It is accepted, however, that Ms Music refused to open the front door even as police continued to ask her to open the door. Whilst the front door remained closed, Mr Settineri engaged in conversation with the officers.
The officers continued to knock on the front door, requesting that Ms Music come outside. The circumstances as to why they did that are disputed.
At about 4:40pm, Constables Alo and Casey requested additional police back-up to attend the premises. At about 4:50pm, at least four other police officers arrived at the property. One of them was LSC Cashmere. At about that time certain events occurred; although there is a dispute about the proper sequencing of them. Taking the sequence as Ms Music asserted the events to have occurred, for the moment, she walked out on to the balcony, which was located on the first floor above the garage at the front of the townhouse and told the police to “fuck off” and “leave me alone”. CCTV footage of her being on the balcony, and appearing to remonstrate with the officers below her, is at Exhibit F.
Constable Casey spoke with Mr Settineri through the front door. At 4:46pm, the conversation between a police officer and Mr Settineri was as follows:
[Officer n53223]: “Dominic, hey mate, how are you doing?”
[Dominic]: “I’m doing alright.”
[Officer n53223]: “Yeah good mate, my supervisor’s here and we’re just having a chat with him”
[Dominic]: “She calmed down… She’s just upset”
[Officer n53223]: “I know mate, I know. The situation right now is that we are seriously concerned that she might do it. I know that you (Dominic) reassured me mate but on our basis, she said what she said to the person on the telephone line, and we’re really concerned about it OK? So, at this point she really needs to come to the door”
[Dominic]: “She’s comfortable and she’s alright”
[Officer n53223]: “We probably might need to take her to the hospital mate”
[Dominic]: “Everything’s alright”
[Linda]: “Yeah everything’s alright, can you please go away?”
[Officer n53223]: “Just if can reassure, we will be forcing entry into the door, okay?”
[Dominic]: “Listen, I’m not going anywhere, I’ll make sure everything’s ok. If anything happens, I’ll –”
[Officer n53223]: “yeah Dominic I don’t think that’s an option mate she needs to come to the door or we’re going to have to break it in.”
[Dominic]: “Come to the door?”
[Officer n53223]: “yeah, come to the door, open the door and come out with us or we’re going to have to break the door.”
[Dominic]: “She’s doing alright, you don’t need to do that”
[Officer n53223]: “I know, I know but we’re satisfied that under section 22 of the Mental Health Act, she needs to come. Dominic, can you open the door mate.”
[Officer n53223]: “I know it’s frustrating. There’s just two options. If you can open the door, we can have a chat with her or we’re going to break the door.”
[Linda]: “Back off”
[Officer n53223]: “Can you open the door for us?”
[Linda]: (to Dominic) “No do not open the door”
[Linda]: (to Police) “Get the fuck away from my house”
[Supervising officer]: “alright my name is ___ from Blacktown, I’m the supervisor on today. I’m telling my police if this door doesn’t open now, they’re going to force entry, okay? Do you want a broken door or not?”
[Dominic]: “I can’t open the door”
[Supervising officer]: “Alright sweet then.”
At about this point, LSC Cashmere removed the flyscreen to the front door and Constable Alo kicked the front door twice. Further, and also about this time, LSC Cashmere, Constable Alo and two other police officers used a motor vehicle that was parked at the front of the townhouse to climb up the wall and over the railing on to the balcony of the first floor at the front of the townhouse. Having done so, LSC Cashmere, Constable Alo and two other police officers entered a glass sliding door leading into the residence.
After opening the sliding door and entering into the bedroom, LSC Cashmere said he heard a dog growling outside the bedroom. By 4:50pm, they were in the bedroom. The conversation was recorded as follows:
[Officer n48837]: “Hello, Blacktown Police. You need to get out here now.”
[Dominic]: “What did you do to the dog?”
[Officer n48837] “Mate get your dog in a room now. Put your dog in a room now. Take him in the room, hurry up.”
[Officer n53033]: “Where is she, where is she?”
[Dominic]: “I don’t know mate, I don’t know, I don’t know”
[Officer n53033]: “Put the dog away, put your dog over here”
At about 4:51pm, the officer told Mr Settineri to lock the dog outside. Mr Settineri took the dog outside and after that the officer told Mr Settineri to get to the ground and directed him to place his hands behind his back before handcuffing him; and, in the process, told him that he should have opened the (front) door. Over the next minute or so, Mr Settineri was asked why he did not open the door and he indicated that this would pose problems for his relationship to Ms Music.
Those officers who had not climbed on the balcony, but who had remained outside below the front of the townhouse, including Constable Casey, gained entry to the premises through the front door. How they did so is also disputed.
By about 4:55pm, one of the officers surmised that Ms Music may have jumped a fence. Contact was soon made with a radio operator.
At 4:57pm, Mr Settineri was seen handcuffed, with his hands behind his back, on the driveway. But the handcuffs were removed. At 4:58pm, an officer had a conversation with Mr Settineri as follows:
[Officer n53033]: “We told you at least five times – we don’t trust what you say.”
[Dominic]: “But I’ve been with her for 30 years”
[Officer n53033]: “If we leave and something happened, it’s on us, not on you, you understand? We have a duty of care you know”
[Dominic]: “But you’ve got to understand that if I opened the door – I’ll get thrown out to the street for a night, I’ll be sleeping in the gutter bro. It her house, I’m only here assisting.”
For a period of about 40 minutes, the police officers searched the townhouse and surrounding area, looking for Ms Music. A police helicopter, and members of the Police Order and Riot Squad (PORS) were organised to aid the search for her.
Finally, at about 5:40pm, Ms Music was discovered. As previously indicated, she was found hiding in a garden shed in a neighbouring backyard. Ms Music drew a diagram depicting the layout of the neighbouring property viz a viz her own home (Exhibit E).
Ms Music emerged from the garden shed. How she was behaving as she came out of the shed was contentious. It is common ground that LSC Cashmere attended the backyard and walked up to Ms Music, who at that point was standing on a garden bed area; and thereafter he deployed capsicum spray against Ms Music. Thereafter police officers approached her with Constable Alo, in particular, handcuffing her, with her hands behind her back.
The BWC footage of the spraying incident in Exhibit B is incomplete: although the use of spray could be seen, not all of the immediate circumstances before that occurred could not. Ms Music can be seen in the aftermath of the spray being deployed against her, crouching in the garden bed, before falling over into a horizontal position in the garden bed.
The transcript of what was said, as written in Exhibit A, in relation to this part of the conversation surrounding the incident (commencing at 5:43pm) was as follows:
[Linda]: “You pepper sprayed me for what? For what? My eyes are stinging, I didn’t do anything wrong. I didn’t hurt you in any way”
[Police officer]: “Come here darling”
[Linda]: “No fuck off. I didn’t hurt you in any way you just pepper sprayed me, don’t hurt me I didn’t do anything wrong”
[Police officer]: “Have you got anything on you that you shouldn’t have?”
[Linda]: “Oh my god, what have I done wrong? You’re going to get a call over this. Stay back”
[Police officer]: “Relax, relax darling”
[Linda]: “Don’t hurt me I didn’t do anything wrong”
[Police officer]: “We’re not interested in getting punched and spat on, that’s why you got sprayed.”
[Linda]: “I didn’t spit on you”
[Police officer]: “Oh, you shaped up. Alright, we’re walking outside alright?”
[Linda]: “What did I do wrong?”
[Officer n53033]: “Linda, my camera’s recording, ok?”
[Linda]: “I don’t care you dogs I’ve done nothing wrong. My son –”
[Officer n53033]: “Come on”
[Linda]: “I’ve done nothing wrong! I didn’t do anything wrong what did I do”
[Linda]: “Why did you pepper spray me, for what, for what?”
[Police officer]: “[you were acting] very erratically and aggressively to my officers”
[Linda]: “I was not aggressive; I don’t understand what I’ve done wrong”
At 5:45pm, Ms Music said to a paramedic “My insurance company rang me and said my son was involved in an accident and they said it’s not going to be cover and I’m going to get sued $150,000. I said where am I going to get that money, I can’t deal with this shit anymore.”
About this time, the police officers escorted her (walking) to the ambulance located at the front of the townhouse where, as indicated, she was restrained to a stretcher that was at the back of the ambulance.
By 5:47pm, Ms Music was lying on a stretcher, with her hands handcuffed above her head. But shortly after, the handcuffs were altered, so that her hands were in front of her.
Part of the BWC footage in Exhibit B depicted what occurred when Ms Music was on the stretcher inside the ambulance. At 5:48pm, she said she wanted to wipe her eyes. A paramedic indicated that she should not touch her eyes.
She was seen handcuffed with her hands behind her head. At 5:50pm, a paramedic attended to Ms Music’s eyes. By this time, Mr Settineri’s voice could be heard. He was trying to defuse the situation and, amongst other things, he said he told police that she was upset. It was put to him, but he denied, that he tried to explain to her that she was being taken to hospital as part of the exercise of a duty of care.
BWC footage at 5:52pm showed Ms Music reaching for a water bottle. Consequently, a police officer took to holding Ms Music’s hands behind her. The footage 5:53pm indicated that a police officer was sitting on Ms Music in the ambulance. Quite what part of her anatomy that he sat was unclear from this footage. But prior to this, Ms Music’s bent knee could be seen. She was also seen, reaching for a water bottle in close proximity to the paramedic. Ms Music complained that she was “burning” and said she “can’t take this anymore”. At 5:54pm a paramedic was applying a combination of baby shampoo and water to her face. At a certain point, she appeared to feign that she was asleep (or worse). She later explained in the hearing that she did this because she felt scared of the police.
At 5:55pm the police officer who was inside the ambulance, stood up momentarily, then sat down again. At 5:56pm, he lifted Ms Music’s legs and a very short time later, exited the ambulance.
At 6pm Ms Music was taken by the ambulance, under police guard, to Blacktown Hospital.
At 6:02pm, Ms Music had a conversation with a paramedic as follows.
[Linda]: “I’m going to tell you what happened”
[Paramedic]: “Yeah, tell me what happened”
[Linda]: “My ex gave my son my car, my son was suicidal, he was on ice, and I beg the coppers please, he’s going to self-harm himself. Instead of helping my son they put him in a police pursuit, they crashed my car. The lawyer of the investigation people rang me to say that my car’s not insured so they’re taking me to court now and I have to pay over $150,000 in damages. So, I said how am I going to do that I might as well kill myself. I’ve lost my job twice in COVID”
[Paramedic]: “Have you had [suicidal] thoughts like that before?”
[Linda]: “No”
[Paramedic]: “Have you ever tried to self-harm?”
[Linda]: “No”
In a note paramedics prepared at about 6:58pm, it was recorded that paramedics had attended the property in response to a police request of a behavioural disturbance. Paramedics described Ms Music as being “very agitated and constantly threatening to sue police for what they have done to her and that she didn’t deserve this”. Amongst other things, the note also recorded that she told paramedics she had never had thoughts of self-harm or tried to self-harm before.
She was later examined by medical officers in the hospital. A Patient Health Record produced by the Department of Health indicated that she was admitted to Blacktown Hospital at 6:19pm. It was determined that she had no current suicidal ideation or psychotic symptoms or evidence of a mood disorder. However, she was diagnosed with an “Adjustment Disorder with anxious Distress”.
In her evidence, Ms Music made other complaints of mistreatment whilst in the hospital, including that an officer described her as being a ‘loony tunes’, making derogatory comments about her son and ‘grabbing’ her arms. These were matters that she told Dr Allnut about, however they were not pleaded as giving rise to any additional cause of action.
Ms Music had been in a de facto relationship with Mr Settineri. Together, they have a son, Brandon, who is now 26 years of age.
Sadly, Ms Music’s relationship with Mr Settineri was punctuated with episodes of domestic violence, generally precipitated by Mr Settineri being under the influence of ice. She explained that he had received (apparently in 2019) a diagnosis of schizophrenia. Mr Settineri has been a violent man; spending periods in jail. In her evidence at the hearing, Ms Music referred to two episodes of domestic abuse or violence he had perpetrated against her in particular. The first occurred in 2017, when she said she lived in Moore Park. Her place was broken into and a fire was lit on the property. There was property damage and destruction of some of her possessions. She also referred to another instance in early 2018, when she had moved to a place in Blacktown and discovered that Mr Settineri and Brandon had entered the premises. Ms Music recalled being taken to Blacktown Hospital. She did not appreciate the way she was treated by a male police officer (although she acknowledged that a female police officer was nice to her) and was very distressed at being taken, against her will, to the hospital at all. The latter incident led her to become fearful, if not mistrustful of police. She felt that she was being required to leave her own property.
Ms Music has, for many years, been in hiding from Mr Settineri, although there were situations where he stayed with her. His presence with her on 30 September 2021 was one such occasion.
Sadly for Ms Music, their son Brandon has also had issues with ice. On more than one occasion, including an occasion which prompted the call Ms Music received from Allianz on 30 September 2021, he was wont to take his mother’s motor vehicle without her permission, even when intoxicated by drugs. A document tendered by the State (Exhibit 6) revealed a shocking volume of incidents of violence by Brandon towards his mother. Ms Music developed an understandable concern that Brandon was taking on the behavioural traits of Mr Settineri. Brandon has also experienced periods in incarceration.
Remarkably, there were indications, noted by both a psychologist, Mr Gough and a counsellor, Lisa Brown (for example, her file notes of 19 April 2016 and 29 November 2016), that Brandon had effectively colluded with Mr Settineri to undermine the protections that Ms Music had in place; specifically in exposing her to unwanted contact by Mr Settineri.
From about 2016, Ms Music began to see the counsellor Lisa Brown due to difficulties in her relationship with her son, Brandon. Between April 2016 and December 2017, Ms Music saw Ms Brown on numerous occasions to help her deal with stress, anxiety and trauma. On one occasion, which as later will be noted had significance for Ms Music’s general credit, Ms Brown wrote a letter to the Department of Housing (for the purpose of requesting housing property) on Ms Music’s behalf, explaining Ms Music’s diagnosis of PTSD and her suicidal ideations.
Ms Music recalled speaking to ‘Ian’ [4] from Allianz at about 4pm. Only she and Mr Settineri were in the house. He was downstairs. She was in the bedroom. She said she had not been drinking that day or otherwise taken any drugs. The context for the call was the damage to another or other motor vehicles. Ms Music’s son, Brandon had caused when driving a motor vehicle registered in Ms Music’s name, apparently, in a police pursuit. It emerged later through her cross-examination, that Brandon had been on ice, had obtained the keys to her car and she believed that he was going to drive her vehicle to harm himself.
‘Ian’ indicated that her car was not insured and she might be liable to pay a debt for property damage in the sum of $150,000. She recalled saying “Oh my God, what else is going to happen? I might as well just kill myself”. She explained that her question was a reflection on how much she had lost in her life. The statement was ‘just a matter of speech’, as she was upset about everything. She said that Ian had indicated to her that he was going to call the police and her response to that indication was to tell him not to call police, since she was not going to kill herself.
Ms Music said that within 5 minutes, she rang Ian again. On this occasion, she recalled again asking him not to call police. She told him (again) that she was not going to kill herself. But Ian said that he had already called them.
Later in cross-examination, she accepted that the Allianz representative explained that its contact with police was done consistently with a belief that it had a duty of care to her.
As at late September 2021, Mr Settineri described himself as being ‘just good friends’ with the plaintiff. He recalled separating from the plaintiff when their son was aged about 3 or 4 years of age.
Asked about the events on 30 September 2021, Mr Settineri was aware of Ms Music receiving a call from Allianz, although he did not overhear the conversation. He said he was downstairs and she was upstairs. More specifically, he said he was attending to paperwork concerning their son, Brandon.
He said that Ms Music had told him that she had said something to Allianz “as a figure of speech” and observed that “she seemed all right to me”. His opinion was that although distraught about their son, Ms Music was not suicidal.
He recalled that when police arrived, they had wanted to see Ms Music. He could not recall whether or not he expected police to arrive. He recalled that Ms Music was upstairs all of the time, and was challenged about that recollection. He accepted that she told him not to open the door. He complied with this; explaining that it was Ms Music’s house. But he thought that it was this which prompted Ms Music to step out on to the balcony. He heard her say to police “You’ve seen me now. I’m okay”. He did not see the point of her additionally opening the door after she had made her appearance on the balcony.
He said he did not see when she left the house and said he expected that she would remain upstairs.
Ms Music recalled experiencing a panic attack. She recalled an incident with police back in 2018. She recalled the arrival of police. She was pretty sure that she heard a knock on the door. She was upstairs.
In cross-examination, she did not dispute that she understood that police officers were asking her to come to the front door, and open it, so that they could talk to and look at her. She explained that she was very scared and did not want to. She indicated that after hearing that police might need to resort to getting the fire brigade to force open the door, she had told Mr Settineri to effectively set up a barricade by moving a lounge to block police entering the front door.
She said she went to her bedroom window. She saw two or three officers. She went onto the balcony and told them “I’m okay. Leave me alone. Fuck off!” She was not on the balcony for long before she returned to her bedroom.
She agreed in cross-examination that she was downstairs, on the inside of the front door, and swore at police officers a couple of times. She agreed that she was hostile towards them. She did not dispute, in terms, that she had a choice whether or not to open the door to police, but explained that she thought police were going to hurt her.
Senior Constable Casey was called. He was on secondment with Blacktown police. Constable Casey had been in the police force for over two years, stationed at Windsor police station as part of Blacktown Police Area Command. He was on secondment, as a general duties officer. This included his patrolling and going out in police vehicles.
On 30 September 2021, he worked with Constable Alo, attached to a unit in Blacktown. They attended to ‘domestics’. They received radio dispatches about events. Constable Casey received a call whilst in a car. He was unsure whether he was driving or whether he was a passenger of the vehicle. At any event, he recalled being informed that a woman wanted to kill herself, having had contact with an insurance company. This was a ‘priority 3’. They immediately went to the location (in Tenby St Blacktown).
In cross-examination, Constable Casey was shown a document (Exhibit Z) being an extract from the CAD system. ‘Incident Header’. Only this section and the ‘Informant Details’ sections come up in the cab. In the ‘Incident Header’ part of the document the following was written:
“INFT FROM INSURANCE COMPANY WAS TALKING TO A CLIENT WHO IS THREATENING TO KILL HERSELF – POI NAME LINDA MUSIC …”
Constable Casey accepted that the reason for attempting to talk to Ms Music was to try to determine if an ambulance would need to attend the scene. He said that this was an informal assessment; one to be carried out based on available information and the exercise of judgement. This informal assessment was important because the mere acts of screaming and swearing might be explicable for many reasons: one, but not the only one, being that someone has a mental illness. He appeared to accept that what might appear to be irrational behaviour might be because a person is injured, or intoxicated and not necessarily mentally ill or suicidal.
Constable Casey said that he and Constable Alo got out of their car and saw a set of units. He recalled that he and Constable Alo knocked on the door and saw a woman on her phone on the top floor. She was extremely abusive (telling the police to “fuck off” and referring to police ruining her son’s life) and appeared agitated. She slammed the window and door (upstairs). He recalled that he and Constable Alo did some checks, became aware that she had ‘had mental health previously’ and became aware that he (the son) had damaged property in a police pursuit.
They approached the front door and knocked. Constable Casey heard yelling inside the house, and heard the voice of a man as well. He recalled telling the man “she (Ms Music) needs to come downstairs to have a chat” as he was intending to do a check.
He heard her tell them to “fuck off”. He said he heard a bang on the lower level, at about the front door. He thought it was a piece of furniture. He sensed that the occupants inside the property were barricading the door. He said he was quite concerned for the persons in the house. He said that he thought that Ms Music probably wanted to harm or kill herself. This belief was partly based upon the barricading, but also the circumstance that after a period, he no longer heard her voice. He recalled speaking to the man, and recalled asking Ms Music to please come to the door otherwise the officers may have to break the door. He thought she behaved irrationally and unpredictably.
Under cross-examination, Constable Casey was taken through CCTV footage obtained from the neighbour’s property (Exhibit F). He accepted that he approached the front door (with Constable Alo hanging back). He walked back (towards Constable Alo) then approached the front door again. Constable Alo walked away and made a phone call. Constable Casey accepted that this was the result of their agreeing to call and receive guidance from the supervisor. He walked back (again).
Constable Casey said that he and Constable Alo called for other assistance – his supervisor LSC Cashmere – due to the escalation. LSC Cashmere attended and Constable Casey recalled telling LSC Cashmere there was a female screaming from the top door and discussed options. He recalled that the options discussed were to try again and talk to her, but if this approach failed, that she could be detained pursuant to s 22 of the MH Act and s 9 of the LEPR Act. He said he thought there was a concern of breach of the peace because of her irrational behaviour.
As at 30 September 2021, Constable Alo had been in the Police Force for three years. As at that date, he worked in general duties. Specifically, he worked with Constable Casey in a car crew.
Constable Alo received an expression of concern that a person might harm themselves. Constable Alo spoke of his usual practice of ‘checking up on’ individuals when responding to ‘jobs’. He recalled that either he or Constable Casey looked up Ms Music’s antecedents before arriving at her address. He said he recalled reading about prior mental health incidents which, he later elaborated, were in the form of COPS entries. He also rang the informant (the insurance agent) and had a conversation with him. He asked the agent to tell him what he heard. The agent told him that Ms Music had said to him something like she was “going to kill herself”. Asked by the State’s Counsel what if anything he knew about the genuineness of that threat, Constable Alo said he was impressed that the agent had rung 000.
Before picking up this job, Constables Alo and Casey had been on the way to deal with a domestic violence incident. This was regular. Constable Alo was also experienced in responding to incidents concerning callouts for mental health and some of those incidents had been dealt quickly, involving transport to hospital. He said he expected that on this occasion, the matter could be resolved within half an hour after his assessment.
Constables Casey and Alo arrived on the scene at Tenby Street. Both got out of the car and approached the premises. Constable Casey went first (he was behind). He spoke to someone at the front. Constable Casey said that he heard loud yelling from Ms Music. She turned ‘aggressive’. He could not recall speaking to her directly. He did recall her coming out to the balcony and that she was yelling and swearing. This, he said, heightened his suspicion she was showing abnormal behaviour and was irrational.
He called LSC Cashmere. He thought LSC Cashmere needed to be on the scene. Asked to recall what he said when he rang LSC Cashmere, the gist of this was Constable Alo explaining his concern about Ms Music’s behaviour. He believed there was a need to apprehend her and take her to the hospital. He asked LSC Cashmere attend.
In cross-examination, Constable Alo accepted that, prior to the point where LSC Cashmere arrived, he did not hear Ms Music threaten the police (him or Constable Casey). He also accepted that he did not call a PACER clinician; although he added that he was unaware whether one may have been available. He accepted the proposition that, prior to LSC Cashmere’s arrival, the ground for exercising power under s 22 of the MH Act existed. He disagreed with the proposition that his reason for calling LSC Cashmere was for the purpose of letting that officer decide whether such power should be exercised.
Once LSC Cashmere attended, Constables Casey and Alo had a ‘scrum’ (conference) and discussed the incident, all venturing opinions as to what should happen. Constable Alo indicated that they resolved to (try to) speak to Ms Music one more time.
As at 30 September 2021, LSC Cashmere had been in the Police Force for 13 years. During the course of his evidence, he said that it was not uncommon for police to get jobs featuring a ‘comment’ someone has made which causes concern; with police sent out. He said that often police would try to sit down with the person making the comment and police would then decided to dispatch the appropriate resources, such as mental health clinicians who accompanied police in the field, or an ambulance or some other sort of community team. He said it was not uncommon, however, for people to present in the fashion which Ms Music did; where police had such a concern for the person making the comment as to consider it inappropriate to simply leave them; but rather, the need was felt to take the person to a facility to be dealt with someone more qualified than police officers, by virtue of s 22 of the MH Act.
LSC Cashmere said that on 30 September 2021 at about 4:30pm, he received a call from Constable Alo on his mobile phone in the afternoon, whilst he was at Blacktown Police Station, preparing a handover. He had started his shift that day at 6am. He said that he had worked with Constable Alo before (and had confidence in him).
Constable Alo referred him to a job at Tenby St. Constable Alo and Constable Casey had been called by an agent of an insurance company discussing a client’s financial liability to the insurer. The claimant apparently had threatened to kill herself. Constables Alo and Casey had tried to communicate with her, but she did not engage with them. He said he thought that Constable Alo had mentioned Ms Music’s exposure to potential debt, for property damage caused by her son, in the order of $150,000.
Later in cross-examination, LSC Cashmere accepted that, up to the time he himself had arrived at the property, he had little personal knowledge of the surrounding context, including the seriousness of Ms Music’s threat to kill herself. He knew nothing, for example, about any plan to suicide or the timing for it. There might be multiple reasons why someone might appear emotionally agitated. But he said he had asked Constable Alo whether or not he felt comfortable walking away or whether he felt that he should come out. Constable Also indicated to him that he was not comfortable walking away. LSC Cashmere thought it appropriate, as supervisor, to go to the property and to assess the situation himself. He said he was confident in Constable Also’s assessment.
He drove to the scene. He said that in doing so, he looked at a mobile data terminal in the police motor vehicle. This had a computer-aided dispatch system which had weblinks; enabling him to read a person’s history. Cashmere also said that he recalled looking up Ms Music’s prior interactions for mental health, including an incident two years before, when (as he recalled it) she had made a threat to kill herself. He said that he was also aware (before he attended this job, as part of daily briefings) of Ms Music’s son’s involvement in a number of police pursuits a couple of days before and his being arrested.
Ms Music said she heard a kicking of the front door. She also recalled running down the stairs. She left her property and went out the back. She used a chair (she recalled an outdoor chair) to climb over a neighbour’s property on her right-side. She said she knew the occupants of the property, but they were not there at the time. She found a shed and ‘zip-tied’ the door shut; hoping that no one would find her. She said she found the zip tie in the shed. She said she was crying and shaking. She said she felt concerned. Asked what that concern was, she said she was concerned that police would ‘hurt’ her, as she said police officers had hurt her in 2018.
She said she was in the back of the shed and heard people calling out her name. But she sensed that people had gone away. She then heard a helicopter. She got more scared, positioning herself underneath shelves in the shed in an attempt to prevent the occupant(s) of the helicopter from seeing her.
Ms Music said she recalled police officers (about four in number) coming into the garden bed. She indicated that as she came out of the shed, she pushed the door open (which she said she had done with sufficient force to remove the cable tie she had used) and put her hands above her head, and recalled saying (more than once) “What have I done? Leave me alone”. She recalled that within seconds she was sprayed with capsicum spray. She said she got sprayed as soon as she had gotten out of the shed. She received no warning that this might occur. At the time, she said, she was not holding anything.
In her evidence in chief, she said that she did not recall swearing at police and denied spitting at or throwing anything at, or doing anything else which was threatening to the police. However, under cross-examination, she did not dispute that she had been hostile and (through her language) aggressive and had been behaving irrationally.
Under cross-examination, it was suggested that her recollection of the timing of the use of the capsicum spray was wrong. It was suggested that the spraying could not have been virtually instantaneous with her emerging from the garden shed. In order for her to get into the backyard, where she was sprayed, she had to have walked down steps, and she would have had to have passed through four officers.
She accepted that police did not charge her with what appeared to be her own trespassing of the neighbouring property. Up to the point of the capsicum spray, she appeared to accept that she had not complied with the direction that she get to the ground and continued to stand. Other police officers arrived, and she was again told to get to the ground, but again she stood her ground. After having the opportunity of watching the body-worn camera footage, she agreed that she was not ‘confronted’ by police. She did not dispute that she had not been assaulted.
LSC Cashmere gave evidence about what occurred after entry into Ms Music’s home, including the tasering of the dog. Eventually he received word that there was a chair out in the backyard.
He also gave evidence about the searches that occurred of Ms Music’s whereabouts in the next 45 minutes or so. He contacted police radio. He accepted offer to take helicopter. He tasked officers to check other properties and set up a perimeter. His objective was to locate Ms Music, to take her to hospital. He was effectively the officer in charge.
LSC Cashmere was reasonably certain that Ms Music had not gone far. The perimeter was a couple of hundred metres. The officers worked from the outside, coming in. Yards of properties were cleared. There were about 10 officers involved and the helicopter.
He said he formed the belief that Ms Music sought to hide in a home which was unlocked. Systematically, he, Constable Alo and Constable Drew Johnston (from the riot squad) walked through the rooms on Ms Music’s property, behind couches, in wardrobes. He said he heard a commotion from the backyard from the upstairs bathroom and, specifically, heard someone say “Get on the ground”.
He said he noticed a wooden deck in the backyard. He said he saw Ms Music standing 4m off the deck in the yard. He was on the deck.
LSC Cashmere identified the presence of Constables Alo and (Drew) Johnston with him in the backyard. Another officer (from the riot squad) was standing in the yard, at the bottom of the step of the deck, about 2m from Ms Music. (Another officer was on the fence.) He did not remember the name of the officer from the riot squad. The officer yelled at Ms Music to get on the ground. She did not. She faced him with a posture, square on. Hands were at chest level and were open. She was yelling “Fuck off. Leave me alone”.
LSC Cashmere explained that as he was moving towards her, Ms Music was shuffling backwards in the yard, so she was 3m away from the officer. LSC Cashmere referred, back in sequence, to seeing the inside of a garden shed. He noticed a door was open to a garden shed. He said he thought that another officer had referred to the shed and having seen Ms Music in the shed. Specifically, he said that he had glanced inside the shed and noticed a screwdriver with a yellow handle. He said he was familiar with the brand. This observation of the screwdriver perturbed him. On prior occasions, he had seen people harming themselves and trying to stab him. He said he had been glassed once before. He indicated that he inferred from the report that she had been seen in a shed which contained a screwdriver that that, or another tool in the shed, could be used as a weapon. He reasoned (and was anxious) that if she was intent to avoid being taken to hospital, it was possible that she might have secreted on her person such a tool and use it to resist the officers.
Q. Tell his Honour why you were doing that?
A. So I said the, the - up to that point, assessed we had the call about Linda. Police had been there and tried to communicate with her before I got there and it hadn’t worked. I attended and watched Constable Casey try to very empathetically communicate with her and build rapport which was unsuccessful. I tried to communicate with her myself too using a different tact (sic) which hadn’t worked. She barricaded herself in the home. She then fled as we entered the home and she’d then hid herself from us while we were looking for her. So this - and this was the - while we were making the inquiries to find her and clearing the yards and having to follow her, it had been, like, easily 45 minutes. Like, it’d been a long time. So I, I still had the view that it was probable that she was getting‑‑
HIS HONOUR
Q. I’m not sure what your view is now but I - we are interested to know what you were thinking at the time?
A. Yeah, sorry.
GOLLAN: I understood that that’s what he was saying, your Honour.
WITNESS: Yeah.
GOLLAN: I apologise.
WITNESS: I’m not as eloquent as I should be. My, my view at the time was it was still - we still needed to, to detain or apprehend her by virtue of s 22 of the Mental Health Act. Knowing that the officer who we don’t know who it is from the public order riot squad was very plainly giving her directions to lay on the ground, I had concern of due to where we were in the closeness of the yard, that there was going to be a, if we tried to apprehend her, there was going to be a physical confrontation and that it was likely that she would, she would resist.
I didn’t think it was appropriate to contain her, try and communicate with her for longer by virtue of communication had already failed so many times. And also, she’s - as she’s backing up, there’s the fence right behind her. She’s already shown us that she’s happy to jump fences. There’s a tree next to the fence that - it’s like a kid’s climbing tree almost. If she starts to jump the fence and we pull her off the fence, there’s a lot more risk around that injury to my belief and to her.
The options I had at that time was - I considered the use of a firearm was inappropriate. She hadn’t presented a weapon to me so I didn’t think that use of a Taser was going to be appropriate. I didn’t think of a bat would be appropriate either. I didn’t see there as being a risk of me being overpowered, especially I’m much larger than Linda and I had a number of other police with me. Presence in communication, we’d already been trying to do. It was getting us nowhere.
To do, like, weaponless control, like, grabbing a hold of her and throwing her to the ground, one, I had the concern of her having something on her from this shed and using that - the potential for her to use that against me or other police to have injury. And two, is any time you grab a hold of a person, even, as I said, even though we were much larger than Linda, there’s still a risk of injury to us and injury to Linda.
So I made the quick judgment that the capsicum spray was going to be the most effective. We also were in an outside environment which is the best for it because it disperses immediately so we can go in and grab a hold of her. In addition, your Honour, in 2021 it was, like, the height of COVID again. We were all - we were mandated to wear masks and goggles whenever dealing with someone due to the concern of, like, us catching COVID and getting isolated again, which we were getting isolated‑‑
Q. You didn’t want to get into a physical space, is that what you’re saying, because of COVID?
A. It was, it was definitely a factor at that time. Like, I’d been isolated prior to that from having to arrest people and then finding that they had COVID. And I had very young children at the time. It was definitely a factor that, that was weighing on, on my mind. So I deployed an initial burst of OC spray but it fell low. So OC spray’s got to hit, like, so we talk about, like, eyes, nose, mouth to be effective cause it’s, like, like an inflammatory agent like chilli. But it hit low on her chest and her behaviour hadn’t changed. She’s still yelling at us and still gesturing with her hands and still facing towards us. So I deployed‑‑
Under cross-examination, he was shown Constable Alo’s body-worn camera footage (Exhibit B) of LSC Cashmere, Constables Johnson and Alo exiting the home and entering into the backyard where they found Ms Music. This included his walking past an open door to the garden shed. It was suggested that the footage did not support his evidence of his glancing inside the shed as he was descending the stairs to the backyard, nor having heard a report from another police officer about Ms Music being in the shed prior to his administering the spray. But LSC Cashmere maintained that he did glance inside the shed as he descended the stairs even if that was not apparent in the footage in Exhibit B.
LSC Cashmere said he told Ms Music to get on the ground. That evidence was challenged, but LSC Cashmere said he told her to get to the ground (once) before, during and after he had used the capsicum spray.
He said he then drew the capsicum spray out of the cannister which he kept on his vest. He elaborated on his reasoning process: he received the call about Ms Music, police had tried to communicate with her himself but that had not worked. He saw firsthand for himself that Constable Casey’s ‘empathetic’ attempt to communicate was unsuccessful. He himself had tried to communicate using a different tack, but that had not worked either. She had barricaded herself in the home. She had then fled as police entered the home and hidden herself (for 45 minutes). He maintained the view he held at the point of forced entry into her home that she needed to be apprehended and detained (under s 22). The unidentified officer gave her plain directions to lie on the ground. She did not comply with them. He said he was concerned that there was going to be a physical confrontation in the yard. He thought it was likely she would resist. He said he did not think that further communications would be useful. He foresaw the possibility she might jump the fence (which might cause injury).
He said he did not think it appropriate to try further communications. She had already demonstrated that she might jump fences and there was one behind her. Indeed there was a ‘kid’s climbing tree’ that she might use. And if she did start to climb the fence, there was more risk of injury. LSC Cashmere said he considered other means of getting hold of her. This included the use of a firearm, but that was inappropriate. He did not think a baton or taser was warranted since she did not present with a weapon. He said he thought of grabbing hold of her and throwing her to the ground, but was concerned she might have something from the shed and use that in a way that generated potential for injury against him or other police officers. Even the act of grabbing itself might cause injury to police or to Ms Music. He also said that he did not want to get into her physical space because of COVID-19. So, to LSC Cashmere, capsicum spray was most likely effective. In an outside environment, the spray would disperse immediately, facilitating police going in and grabbing hold of her.
“OC spray is a defensive spray used for self-defence to assist in the restraint of a subject, or to limit a subject’s actions …”
LSC Cashmere resisted the proposition that the capsicum spray was a defensive spray. He said it also served the purpose of incapacitating or limiting someone’s ability to resist police; to mitigate a threat posed to police; and to avoid violent confrontations which were occurring or were likely to occur.
In this last respect, I note that on p 9 of the manual it is stated that “Defensive sprays may be used for … a less than lethal option for controlling people, where violent resistance or confrontation occurs (or is likely to occur)”.
LSC Cashmere was referred to considerations identified (on p 10) of the same manual under the sub-heading ‘OC defensive spray as a tactical option’. The manual indicated that the following factors were to be taken into account when deciding what tactical option to adopt:
“Size – disparity or difference between officer and subject/s.
Special skills of officer and subject/s e.g. martial arts.
Age – disparity or difference between officer and subject/s.
Gender of officer and subject.
Multiple subjects or subjects in the vicinity.
Proximity of subject to a weapon (firearms, knife, officer’s firearm).
Member injured or disabled.
N.B. You must remember that OC spray is only one of several tactical options. Certain factors or situations may require the use of a variety of tactical options to resolve the situation.”
LSC Cashmere was taken through each of these stated considerations. He acknowledged he was larger than Ms Music. He could have overpowered her. Special skills were not in issue. There was an age disparity: she was middle-aged and older (he was 29). He was a male. There were multiple officers in the background: the riot squad officer. Others were conducting searches. He did not see her holding a weapon or brandishing a weapon, or anything that could be used as a weapon, but he was anxious she might have one concealed. The factor of an injured or disabled police officer did not arise. He asserted that he took into account these enumerated considerations.
He was also referred to a tactical options model and specifically a circle (p 11) which, among other things, featured reference to communication with the intended subject of the spray. LSC Cashmere said that he tried to communicate with Ms Music: he told her to get on the ground and had heard other officers tell her to get on the ground.
LSC Cashmere disputed that he had omitted to follow procedures for the use of the spray, including the ‘concealed position’ (p 16 of Exhibit AC) or to give Ms Music warning of his preparedness to use the capsicum spray; both of which, it was suggested, gave the intended (or apprehended) subject of a prospective spray the opportunity to comply with directions.
LSC Cashmere was challenged on his assertion that police acted in self-defence. Asked to explain how Ms Music presented a threat, he referred to Ms Music’s behaviour the whole time: she would not comply with a direction. He asserted that it was inevitable police have to restrain her as part of the police’ obligation to ensure her safety and take her to the hospital. LSC Cashmere explained that at no stage had she complied with police directions so they had to take a hold of her. Again and again, however, she indicated she there would be some level of violence. He agreed that she appeared distressed, but asked whether he thought she was ‘aggressive’, he disagreed with that description. He thought she was confrontational and non-compliant.
He rejected the proposition that in spraying Ms Music, he was not concerned about s 22 or that he had sprayed Ms Music out of frustration and a desire to ‘bring this whole affair to an end’.
Constable Alo participated in the search for Ms Music.
He was in the backyard when he saw Ms Music. He recalled that Constables Drew Johnston and Cashmere were also there. He heard another police officer’s voice. He recalled that Ms Music was yelling.
Constable Alo said he saw LSC Cashmere grabbed his spray before deploying the spray.
He explained that his impulse was to then grab Ms Music, but LSC Cashmere deployed the spray a second time. After this spray, he recalled Ms Music was yelling and screaming.
After the second spray, he thought he grabbed hold of her. He said that LSC Cashmere got her up and walked her up. Constable Alo said he controlled her arms.
After being sprayed, Ms Music recalled laying on the ground, (she said) pretending that she was dead, being placed in handcuffs. She recalled what she described as the awkward twisting of her left arm (in particular), which hurt her and screaming for Mr Settineri.
She also recalled being placed in an ambulance, when someone was trying to put a mask on her (these were COVID-19 days), with someone changing the way she was handcuffed whilst in the ambulance. Ms Music further recalled one of the officers sitting on her and another twisting her arm.
In cross-examination, Ms Music did not dispute that she did not cooperate as she was guided into the ambulance but had acted in an irrational way; although Ms Music explained that she was in pain.
When she arrived at the hospital, Ms Music said she was restrained on a hospital bed. She said she was crying for a lawyer.
At 5:55pm, when Ms Music was on the stretcher in the ambulance, she told police that she was a “bit upset”. Later, in re-examination, she explained that she told police this to try to persuade them that she did not mean what she said.
After the second spray, LSC Cashmere (who was masked) put on some gloves. He recalled taking hold of one of Ms Music’s arms; whilst Constable Alo took hold of the other. LSC Cashmere said that Constable Alo applied handcuffs to Ms Music whilst he helped the officer by securing her hands. They stood her up. He said that she was yelling and was very agitated. By then, ambulance was on the scene and LSC Cashmere said he was motivated to get her to the ambulance to transport her to the hospital; but also to execute the ‘decontamination’ so as to reduce her suffering the effects of the spray for any longer than was necessary.
This explained why they walked Ms Music through the house. LSC Cashmere indicated he was concerned about walking a person who was not wholly cooperative through an environment that the police officers were not familiar with; which presented a safety risk to the officers. This, he explained, was another reason for handcuffing her.
LSC Cashmere rejected the proposition that he could have just assisted, or escorted, Ms Music to the ambulance without applying handcuffs. He explained that this option was not deemed safe.
LSC Cashmere recalled threading his arm through hers on the back of her upper back to aid control of where she was going in accordance with the practice. She remonstrated why the officers had done what they did. He tried to explain why she had been sprayed. His answer was that she had ‘shaped up to me’ and he and his officers were not there to be punched or spat at. She hadn’t done what she had been reasonably asked her to do. She told him to “Fuck off” so he abandoned further attempts to explain.
LSC Cashmere said he thereafter spoke to Ms Music in a softer tone and began explaining how she was to be placed in the ambulance. Given the difficulties Ms Music faced with not being able to see and his concerns about her general demeanour, it was thought best to put her on a stretcher, to avoid the risk of her injuring herself by bumping her head.
He recalled removing the handcuffs from the back to the front. He recalled asking the ambulance whether it had its own form of restraint. He indicated that he had not received any real response. He moved away to communicate with police. He said he thought he may have called the duty officer or he may have spoken on the police radio.
LSC Cashmere then returned to the ambulance, where he observed ambulance officers engaged in efforts to ‘decontaminate’ her. He noticed that although her hands were handcuffed to the front, she appeared to be grabbing. He also heard a report from an ambulance officer that she was kicking her legs around. An ambulance officer indicated that they intended to fit a medical restraint device to her legs to prevent further kicking.
LSC Cashmere described this as a “fiddly” task and LSC Cashmere aided the officers. He explained that it was hard to restrain a person’s kicking with arms, even if he was bigger than Ms Music, so he decided to sit on her lower legs whilst the restraints were fitted, after which he got off.
“In all that you do, be sure to apply the least restrictive actions possible upon a person suffering from a mental illness. The use of force, whilst justifiable in appropriate circumstances, should be utilised as a last resort. Use effective communication skills and other tools at your disposal to de-escalate potentially violent situations, where possible.”
It was put to LSC Cashmere, but he denied, that his decision to detain and escort Ms Music to the ambulance on route to hospital was motivated by expediency. LSC Cashmere maintained, when challenged, that s 22 of the MH Act was on his mind. He said his sole intention was to take her to hospital so that the medical professionals could see her. He did not accept that it was necessary to explain to Ms Music the reason for taking her to hospital. He said that his intention was to take her to hospital so she could be seen by mental health professionals. His concern was to get her to the hospital for her own safety.
Constable Casey said he was in the vicinity when a handcuffed Ms Music was escorted to the ambulance vehicle. He accepted that he did not explain to Ms Music the reason why she had been detained.
Constable Alo gave evidence of Ms Music being walked over to the ambulance.
During the process she was yelling and swearing.
It was put to Constable Alo that it was he who had handcuffed Ms Music, but the officer said he did not recall doing so. Asked to assume (contrary to his evidence) that it was he who handcuffed her, it was put to him that he did not hold the view that Ms Music was mentally ill, and that he was only following LSC Cashmere’s lead. Constable Alo rejected both propositions. He also rejected the proposition that her handcuffing on the way to the ambulance was unnecessary and invasive. He did not recall whether or not it was explained to Ms Music that she was being taken to a hospital on the ground set out in s 22 of the MH Act.
Once on the stretcher, he asked paramedics whether Ms Music should be handcuffed to the front or back. He handcuffed her to the front. He went to the back of the ambulance. He sat in the front, above her head.
He recalled that a decision was taken to restrain Ms Music by her legs and arms. He held her hands above her head whilst restraints imposed. Attempts were made to rinse her eyes. He stayed in the ambulance the whole way to the hospital.
One cannot help but be moved by the misfortune that has bedevilled Ms Music’s life. In what I am about to say, I do not intend to devalue or diminish the serial traumatic episodes she has endured. Nevertheless, she comes to the Court asking to be accepted as a witness of credit whose testimony can be relied upon when considering a range of contentious factual issues.
The plaintiff presented nervously and emotionally. Often she was in tears when she gave evidence; resulting in occasional breaks. She often spoke over Counsel in cross-examination and on occasions, could not resist providing non-responsive commentary to questions. In these senses, she was engaging in advocacy. She had a tendency, moreover, to speak about her thoughts and feelings, rather than her recollections of the detail of events. These are not uncommon incidents of complainants in litigation (civil or criminal) and I do not draw anything adverse to her because of these behaviours simply on account of these matters.
Her recollection of the detail of events that occurred on 30 September 2021 was weak; a matter she herself acknowledged. In fairness, a not insignificant period of time had lapsed since the events of that day (although that is a circumstance affecting all of the material witnesses in this proceeding alike). Moreover, I recognise that people who have endured traumatic or distressing episodes (not to mention those who have been conditioned to domestic violence) generally are apt to be more likely to recall the ‘core’ features of an event rather than surrounding or peripheral detail.
Nevertheless, there were serious problems with Ms Music as a witness. As she reflected upon events, she was prone to increasingly draw the worst conclusions against the police officers in a way which impaired either her reliability, or credibility, or both. To take one illustration, in her pleading, she asserted telling the Allianz representative that she did not want him to call the police, but once. In her evidence, she mentioned two conversations in which this occurred. To take another, in her evidence, she indicated that she more or less was assaulted with the capsicum spray as soon as she had exited the garden shed in the neighbouring property where she had hidden even when, she asserted, she was not holding anything, but she later accepted that in order to get into the backyard itself, which was where she was sprayed, she needed to walk down several steps; which belied the notion that she was immediately sprayed after exiting the shed by pushing the door open.
Harbouring ill feelings towards police after the incident on 30 September 2021 was understandable, given the force that was undoubtedly deployed against her. But I consider that she formed a persecution complex, or paranoia, about the police. This was the subject of evidence given by Dr Allnut, which I explore at further length later in these reasons on the topic of whether she had pre-existing illnesses. This was seen, for example, in her violent reactions to being touched, whilst her capacity to see was diminished. Her fear and anxiety was palpable. It was not only how they treated , however. It was evident that she harboured resentment to police arising from what had occurred to her son and her perceptions or beliefs about their relations with her son. Towards the end of her evidence, in answer to a question I raised of her, she placed the blame entirely upon police for the car crash that precipitated the fateful call to her by the Allianz representative on 30 September; thereby entirely absolving her ice-affected son from taking the car key (apparently from Mr Settineri and without her consent) to drive her car in the lead-up to that crash. There was also a clear streak of vengeance in her, as was manifested on the day in question, when she repeatedly indicated her intention to call lawyers and sue the police. The BWC footage indicated that she tried to enlist Mr Settineri to film what was going on as she was being escorted to the ambulance and inside the ambulance. She had the presence of mind to try to try to marshal or compile evidence which she thought might assist her. Her animus to police, nourished even before the events of 30 September 2021, coloured her views.
As a witness, Mr Settineri was similar to Ms Music in certain respects. His evidence was also punctuated by statements of non-recollection, but when he did make positive statements, they tended to magnify perceived wrongdoing by police whilst minimising uncooperative conduct by Ms Music and himself.
His evidence as to what he saw in the ambulance lacked credibility. He was in a poor position to see what restraints were imposed upon Ms Music on the stretcher. His evidence of seeing a police officer sitting on Ms Music’s chest and bouncing up and down was inherently implausible and not supported by the body-worn footage, but he steadfastly clung to his belief even after being shown the BWC footage, which demonstrated the absence of any basis for a belief which, if true, would have been very serious misconduct by police. I consider that he lied when he denied that Ms Music was the source of his information and belief that a police officer had bounced up and down on her stomach. This was the report that Ms Music had given to Ms Rose.
He exaggerated the length of time he was himself handcuffed. His behavioural observations of the way that Ms Music behaved prior to the arrival of police, to the effect that she was ‘all right’, were also implausible in view of the concatenation of bad news that Ms Music had received concerning their son.
He baulked, rather truculently, when asked details about his relationship with Ms Music, before and after the events giving rise to the proceeding; and thereafter struck me as being manifestly non-committal.
I was unable to place confidence in Mr Settineri’s reliability as a witness.
I formed the distinct impression that both Ms Music and Mr Settineri sought to minimise the toxic nature and history of their relationship. In the plaintiff’s case, I thought that sometimes Ms Music’s evidence about Mr Settineri bordered on being that of an apologist for him. Thus, when asked about the occasion of her being kidnapped in a vehicle, she explained that Mr Settineri was psychotic and needed help. Ms Music emphasised that Mr Settineri, when not under the grips of psychosis, was supportive of her. Mr Settineri improbably noted that she had only moved house (to avoid him) on very few occasions (much less than the number that Ms Music had quantified). I thought that Ms Music was evasive or at least not forthcoming when she was asked about the frequency of contact and her living arrangements with Mr Settineri in the months leading up to the events on 30 September 2021. She appeared to convey that he was at work and stayed over sporadically. In a context where she herself had lost her job and there was a lockdown, I considered that the true position was that Mr Settineri did live with her in the months up to the events of that day and that the reality was that she could not ‘get rid of him’. She was not forthcoming when talking about Mr Settineri’s responsibility for encouraging Brandon’s drug use. There were indications in the evidence that Mr Settineri had manipulated Brandon to enable him to get access to her.
Although there were some occasions when I felt that Constable Casey believed he had a better recollection of events then he actually did (of events over four years ago), I accept that he was an honest witness. I formed the impression that subconsciously he had formed a view of what had occurred and was concerned to convey that view. But he was willing to accept that his view was inaccurate without equivocation. His honesty was demonstrated, for example, when he acknowledged that some CCTV footage was to some degree at odds with his recollection of what Constable Cashmere had said to himself and Constable Alo. His recollections were not however all that strong.
LSC Cashmere was perhaps the most important witness in the proceedings: most of the parties’ submissions were directed to his knowledge, belief and decision-making process. This was natural given that he fired the capsicum spray. There is force in the State’s submission that LSC Cashmere was honest. I accept that he eschewed the temptation to embellish his evidence given the less than perfect audio and visual forms of evidence depicting what occurred. Nevertheless, human nature being what it is, it was not surprising that he viewed the BWC footage multiple times. I expect he would have turned over in his mind the events that day often and what his thought processes were. I expect that over the ensuring nearly four years (plus) from the incident to his giving evidence, he would have had numerous other incidents he would have had to deal with in the course of his duties. The consequence of this is to the extent that he had any actual recollections of what occurred, his memory of what he actually thought on 30 September 2021 was likely overborne by more recent mental retrospectives he had engaged in. In short, I agree with the plaintiff’s submission that his evidence, fluent as it was (in his evidence in chief) on the critical events, which lasted but a matter of seconds, was in large measure the product of reconstruction. That is not to say that it was dishonest, but I think it bore on his general reliability. On certain occasions, LSC Cashmere gave evidence which I thought was inherently implausible. I thought his attempt to indicate compliance with the manual for the use of capsicum spray, and align his thought processes at the time with the enumerated considerations to be taken into account unconvincing. In making that criticism, I do not mean to suggest that the manual itself prescribed rules. But to take one example, his maintenance of the view that a verbal statement by Ms Music telling police to ‘fuck off’ constituted an implied threat to police struck me as self-serving. I treat his evidence with some caution.
I was impressed with Constable Alo as being both honest and reliable. His presentation was straightforward. It was notable that such cross-examination as occurred of this witness was relatively brief and consisted of Counsel for Ms Music putting propositions to the witness in conformity with the ‘rule’ in Browne v Dunn. There was no subsequent challenge to Constable Alo’s answers.
“(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.”
In State of New South Wales v Talovic [2014] NSWCA 333 (“Talovic”) at [135]–[141] Emmett JA (Tobias AJA agreeing) indicated that there are two ‘prerequisites’ to a police officer’s apprehension of a person under s 22:
a person appears (which amounts to a subjective opinion) to the apprehending officer to be mentally ill or mentally disturbed; and
the officer believes, on reasonable grounds, that:
it is probable that the person will attempt to kill themselves or attempt to cause serious physical harm to themselves; and
it would be beneficial for the person’s welfare to be dealt with in accordance with the MH Act, rather than otherwise in accordance with law.
At [162] Tobias AJA emphasised that s 22(1)(a) required a belief that it was probable that the relevant person “will” attempt to kill (or cause serious harm to) themselves. It was insufficient that the officer believed that there was a probability that a person ‘may, might, or could’ attempt to kill (or seriously harm) themselves. Basten JA (at [31]) explained that for the purposes of s 22(1)(a), the word ‘probable’ carries a special meaning. It means ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.
The appearance of a person as being ‘mentally disturbed’ is broader than the appearance of a person being ‘mentally ill’: Talovic per Basten JA at [11], per Emmett JA (Tobias AJA agreeing) at [131].
Section 81 provides:
“(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.”
The harmonious operation of ss 22 and 81 has been explained in a way that indicates that the power conferred on the police officer under s 22 to “apprehend” the person and “take” the person to a declared mental health facility, involving as it does the detention and restriction on a person’s liberty, is subject to the requirement that the officer uses no more than “reasonable force” and not restrain the person in any way that is not “reasonably necessary in the circumstances”: s 81(2): Talovic per Basten JA at [12].
Both Counsel also referred me to what was said about ‘reasonable force’ in R v Turner [1962] VR 30 at 36, which observations were followed in Woodley v Boyd [2001] NSWCA 35 per Heydon JA (Davies AJ and Foster AJA agreeing) at [37]:
“What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented …”
“… to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case. [8] ” (Emphasis supplied.)
“[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”
In State of New South Wales v Robinson [2016] NSWCA 334 the Court of Appeal at [41]–[43] construed the word ‘necessary’ in the cognate context of s 99. The Court of Appeal determined that it meant ‘requisite’ or ‘something that could not be dispensed with’. I do not see why the same construction would not also apply to s 81(2)(b) of the MH Act.
The onus of proof that reasonable force was used, for the purpose of s 81(2), falls on the State. [9] But once the use of force is authorised by ss 22 and 81 of the MH Act, it is regarded as a lawful use of force and provides a defence to battery [10] .
The State also accepted that it bore the onus of proving the use of reasonably necessary force as a defence to the action for false imprisonment.
Section 4(1) states that unless the LEPR Act otherwise provides expressly or by implication, the Act does not limit the functions, obligations and liabilities that a police officer has as a constable at common law: s 4(1)(a).
Section 5(1) provides that the LEPR Act does not limit the functions that a police officer has under an Act specified in Schedule 1 (which, relevantly, includes the MH Act).
Section 9 provides:
“(1) A police officer may enter premises if the police officer believes on reasonable grounds that –
(a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or
(b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person, or
…
(2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.”
The concept of ‘breach of the peace’ for the purposes of s 9(1)(a) of the LEPR Act is broad in scope – it can extend to a wide range of actions and threatened actions interfering with the operation of civil society, including a threat or realistic apprehension of self-harm: State of New South Wales v Bouffler [2017] NSWCA 185 (“Bouffler”) at [164], [167] (a case where it was found that the police officer had a reasonable apprehension that the claimant could self-harm).
Section 10 relevantly provides:
“(1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.
(2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling …”
The concept of a police officer’s belief ‘on reasonable grounds’ appears in both ss 9 and 10. The question whether there are reasonable grounds (for the officer’s belief) is determined objectively at the time when the relevant power or function is exercised: Bouffler at [87]. The Court of Appeal in that decision further explained that the relevant officer does not need to possess all of the information relevant to the exercise of the power or function, although the officer must have equipped themselves with sufficient information to form the belief: at [91].
Where, as in this case, there were a number of police officers enter into Ms Music’s premises, each officer who exercises the relevant function or power is required to have the state of mind required by ss 9 and 10: Bouffler [47]–[48], [244].
It is unnecessary, for the purpose of ascertaining whether entry under s 10 is lawful, for the State to also prove that a lawful arrest of the person under s 99 was made: Bouffler at [224].
Section 230 provides that:
“It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.”
“A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”
If the use of force is lawful (under s 230 of the LEPR Act), that would constitute a complete defence to any action for battery. [11]
Although these provisions were pleaded in its Defence, the State did not ultimately refer to ss 230–231 of the LEPR Act so I infer that, if such reliance was not abandoned, they would not have assisted the State’s case.
Part 15 of the LEPR Act is titled ‘Safeguards relating to powers’. Section 202(1) provides that a police officer who exercises a power to which Part 15 applies must provide the following to the person subject to the exercise of the power –
“(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.”
“(a) as soon as it is reasonably practicable to do so, or
(b) in the case of a direction, requirement or request to a single person – before giving or making the direction, requirement or request.”
Section 201(1)(a) provides that the provisions in Part 15 apply to the power exercised by a police officer to “stop, search or arrest” a person.
However, by s 201(3), the provisions in Part 15 do not apply to the exercise of powers conferred by an Act or regulation specified in Schedule 1.
In Schedule 1, titled ‘Acts not affected by this Act’, the MH Act appears.
“(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.
(2) The NSW Police Force has the following functions –
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.
(3) In this section –
…
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, …”
The functions of police have been construed so as to permit police to respond to situations and act with a view to prevent a person from harming themselves [12] .
Although these provisions were relied upon in the State’s Defence, at the hearing, the State’s Counsel indicated that if the State’s arguments under s 22 of the MH Act and/or s 9 of the the LEPR Act were unsuccessful, these provisions under the Police Act would not achieve any more favourable result for the State.
“(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding—
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not had a mental health impairment or a cognitive impairment at the time of the conduct.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.”
“(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.
(2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action.
(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.”
In his closing address, Ms Music’s Counsel confirmed the nature of her claims. First, there was the claim of forcible entry into her home (trespass to land). Secondly, the use of the spray and touching her in the way she was taken to the ambulance (the battery claim). Finally, there was the period from the handcuffing (after the spray), continuing until Ms Music was released from the hospital (the false imprisonment claim).
Ms Music structured her submissions on liability principally with reference to two topics. The first was whether the power to detain her under s 22 of the MH Act – which she argued was the only seriously arguable basis for the forced entry into her home and thereafter other conduct in administering a capsicum spray and handcuffing her along the way to an ambulance – was engaged. The second issue, which was premised upon an affirmative finding that such power was validly engaged, was whether reasonable force was deployed against her; as that concerned the deployment of the capsicum spray and the subsequent handcuffing and escorting of Ms Music to the ambulance.
The question of reasonable force was relevant to the battery and false imprisonment claims; but not the trespass to land claims.
On the first question of whether s 22 was engaged, Ms Music dealt with both the subjective and objective limbs of the power. The stated premise for her submissions was that each of the police officers Cashmere, Casey and Alo (all of whom purported to exercise the power under s 22 to force the entry into her home) had the subjective belief. That premise was somewhat assumed, although Ms Music’s Counsel cited the authority of Bouffler at [235], by analogy: that case concerning arguably corresponding provisions under the LEPR Act. (Ultimately, the State accepted that each of the officers had to have the subjective belief under s 22.)
Ms Music accepted that each of the officers Cashmere, Casey and Alo asserted that they had the requisite subjective belief. However, she argued that in the case of officers Casey and Alo, they only had a preliminary belief, or perhaps more accurately, only a ‘suspicion’ which only crystallised into a ‘belief’ after LSC Cashmere’s ‘instruction’ to them in their ‘scrum’ conference. It was pointed out that in the interactions that officers Casey and Alo had with Ms Music (and Mr Settineri) prior to LSC Cashmere’s arrival on the scene, no indication had been given to Ms Music that the officers considered it necessary to detain her and take her to a mental health facility. There was no indication or warning, prior to LSC Cashmere’s arrival, that they would resort to forcing open the door to effectuate that purpose. Such indications or warnings were only given to Ms Music after his arrival. It was pointed out that officers Alo and Casey required LSC Cashmere, who was a supervisor, to come out to the premises and to make the judgement call. He was the real decision-maker. It was suggested that the Court would infer that the idea of scheduling Ms Music belonged to LSC Cashmere.
Therefore, as I understood Ms Music’s submissions, when considering the objective limb for s 22, consideration needed to be given to the information available to LSC Cashmere. Viewed in this way, there were no reasonable grounds that the two matters in s 22(1)(a) and (b) were engaged. The information that LSC Cashmere had was inadequate. It comprised the information he received from Constable Alo in the initial telephone call he received at Blacktown Police Station about the form and context of Ms Music’s threat to kill herself; LSC Cashmere’s own look on the dispatch system (disclosing police records of Ms Music’s prior mental history), and the information he ascertained during the ‘scrum’ or what might also be regarded as the caucusing between the officers very shortly after LSC Cashmere arrived at the scene. Ms Music submitted that the decision to apprehend and, if necessary, forcibly open the door to the premises, was taken there and then and what subsequently followed was in the execution of that decision. It was said that the decision occurred before LSC Cashmere saw anything himself about Ms Music’s behaviour, or observed her interactions with the other officers. Such beliefs as he had about ss 22(1)(a) and (b) could be described as being based on collateral information. He did not know whether Ms Music was acting irrationally or anything that she had said amounted to a serious threat.
The State submitted that it was immaterial whether or not LSC Cashmere was the real decision-maker, in respect of the decision to force entry into the home. He should be accepted when he gave evidence that police officers exercising functions of this kind had to reach their own view.
The State submitted that there should be little difficulty in the Court accepting that all three police officers subjectively believed it was probable that she would attempt to kill or cause serious harm to herself and it would be beneficial for her welfare that she be assessed by a mental health facility. There was no serious suggestion to the contrary. Specifically in the case of LSC Cashmere, the elaborate steps he took after entry into the home, such as the marshalling of an array of police resources in order to try to locate Ms Music further illuminated the genuineness of his view, at the time the forcible entry occurred, that she needed to be apprehended before of the appearance of mental disturbance and the risk she posed to herself.
As to the objective limb of s 22, the State acknowledged that there were differences in what each of the police officers knew, at the point when the function was exercised (that is the forced entry), the subjective beliefs of each officer were reasonably based (respectively).
All of the officers accessed her history of callout; the CAD message indicated the informant’s message of the threat to kill; on arrival, Constables Alo and Casey (and later Cashmere) saw her behaving in a way irrationally. They all heard her language, rambling. In the case of Constables Alo and Casey (at least), Ms Music indicated that she was cognisant of why the police were there and she took wild steps to evade police, including her instruction to Mr Settineri barricade the door (a matter she told police and about which Casey gave evidence of hearing the thud of the barricading); she had rejected of methods of oral engagement (being the ‘nice’ entreaties by Constable Casey and the more authoritarian approach of LSC Cashmere); they all heard Ms Music telling Mr Settineri not to open the door. This is more than might be expected.
Constables Alo and Casey also had a conversation with the representative from the insurer in the car. It was not insignificant that the insurance agent rang 000. This was an inherent indication of independent concern (from a responsible citizen) for Ms Music’s welfare. LSC Cashmere’s evidence that he was aware that Ms Music had become the subject of a prospective debt claim in the order of $150,000 and that he was aware from daily briefings of the activities and incarceration of her son Brandon the day before would, coupled with his knowledge of her prior mental health concerns, should be accepted. That being so, this was further support for the reasonableness of his beliefs. Counsel for the State cited, in aid of his argument, Professor Allnutt’s view that they were entitled to enter into the home.
I accept that when forcing entry into the home, each of the three officers had to have the subjective belief posited by s 22, that Ms Music appeared to be mentally disturbed (if not also mentally ill). I did not consider Ms Music’s Counsel to seriously suggest otherwise.
I also find that all three officers subjectively believed in each of the two matters set out in s 22: to paraphrase, that it was probable that Ms Music might kill or harm herself and that it would be beneficial for her welfare that she be assessed by a mental health institution. I am mindful that it is not necessary to apply a test that that it was more probable than not that she would try to kill or harm herself in either way.
There is little difference in the position of Constables Casey and Alo as to whether they had reasonable grounds for those beliefs. They were in the car when they learnt of the threat she had communicated to the insurance agent. Although they had learnt of the verbal threat second hand through the agent, the threat was, by its literal terms, serious, and they were also entitled to place weight upon the circumstance that a representative from an insurer was sufficiently concerned about it to call 000. The underlying circumstances, involving Ms Music’s son being in trouble with police and apparently causing his mother to incur a ruinous, if not significant, financial liability would have been enough to have tried the hardiest of souls.
What they each saw when they encountered Ms Music was, I accept, a person who was acting irrationally; including ranting and raving and the barricading of a front door. That would have diminished, in the minds of reasonable police officers, any possible notion that the verbal threat was likely to have been more than just a chance or flippant remark.
Both officers called their supervisor, LSC Cashmere, an officer of 13 years’ experience. LSC Cashmere was entitled to give weight to the observations of Ms Music’s behaviour passed on to him by Constables Alo and Casey after his arrival. Specifically, he was entitled to rely also upon what Constable Alo had said to him in the original phone call he received, which effectively conveyed the context of the threat that the Constables had received from the agent of the insurer. He referred, understandably, to the confidence he reposed in Constable Alo, who he thought was level-headed in terms of his temperament. He had the added benefit, denied to the other officers, of learning from the mobile dispatch system and was apprised that Ms Music had made a threat to kill herself, which was treated seriously as going to her mental health, in 2019. It is not altogether clear what the extent of the information was in the dispatch system that LSC Cashmere referred to and how it compared, say, to the COPS entry that developed following the incident in January 2019 (Exhibit 2).
In addition to her verbal threat to kill herself, Ms Music in short presented to LSC Cashmere as someone with a known mental health history, and who had appeared to behave erratically or irrationally to police officers whom he held confidence in.
The Court was reminded that the State which carried the onus of proving that such force as was used was reasonable.
Ms Music’s argument about a lack of reasonable force, or excessive force, grounded in the common law but also (partly) s 81 of the MH Act was encapsulated in a written outline of closing submissions (MFI 15), and was supplemented in the oral address.
One factual issue relevant to use of force, which was also relevant to the defence of self-defence, concerned LSC Cashmere’s evidence that, prior to administering the spray, (a) he had seen a screwdriver in the garden shed which he passed to walk through to the garden and that (b) he had heard a report from another officer that Ms Music had emerged from that shed and that (c) he apprehended the possibility that Ms Music might have secreted on to her person something (such as a tool she picked up from the shed) which might present risk to the safety of him, or other officers if he, and/or other grabbed hold of her, that evidence should not be accepted. The implausibility of these matters being part of his thought process prior to administering the spray was, it was suggested, borne out by the body-worn footage of Constable Alo (Exhibit B). Simply put, the sequence of events shown in that footage emphatically indicated that he would not have had the time to have considered these matters. Generally, Ms Music submitted that in cases of this kind, the BWC footage, being contemporaneous evidence, was the most probative evidence (citing State of New South Wales v Madden [2024] NSWCA 40, per Leeming JA (albeit his Honour being in dissent on the ground of appeal to which the observation was directed) at [229]).
There was, more generally, an absence of any objective threat posed by her of violence or confrontation, she had not been violent on 30 September 2021 or the previous day. She had no criminal record or had any record of violence: matters which probably would have been known by LSC Cashmere. She issued no verbal threat. Contrary to LSC Cashmere’s explanation after the deployment of the spray, she did not spit at or punch any police officer. According to his account, prior to the administration of the spray, she held her hands open in a neutral stance. She was not advancing towards him or other officers, but was rather shuffling back, towards the fence. Her own verbal response after the spray was administered – what have I done – was consistent with other indications that she was not intending to be violent. That she did not comply with police telling her to get to the ground did not mean that she presented a threat of violence. Everything Ms Music did was consistent with a person who was fearful; not threatening.
It followed, in the absence of any threat that Ms Music presented to police (harming them or harming herself), self-defence provided no justification for the spray. That being so, the only arguable basis for LSC Cashmere’s use of the spray was to control Ms Music where a violent confrontation was occurring or was likely (to adopt the words utilised in Exhibit AC). This, it was submitted, was unreasonable: first, LSC Cashmere had an insufficient base of information to decide to deploy the spray and further, Ms Music was given no opportunity to comply with directions that should have been issued to her.
The State argued that what was depicted in Constable Alo’s BWC footage (Exhibit B) did not preclude acceptance of LSC Cashmere’s evidence about glancing the garden shed as he approached the backyard. Not least, part of footage indicated that LSC Cashmere was obscured by Constable Johnson who was behind him.
The question is not what reasonable laypersons or lawyers consider LSC Cashmere should have responded. The proper perspective is that of the notional reasonable police officer standing, in effect, in the shoes of LSC Cashmere, with reference to his position, knowledge of the circumstances that he was in. Further, the same perspective is brought to bear on the question of whether the action that was taken (the use of the spray) was disproportionate to the ‘evil to be avoided’, being relevantly the risk that she might kill or cause serious physical harm to herself.
The State also referred to what Kiefel and Bell JJ said in Prior v Mole (2017) 261 CLR 265 at [72], concerning the weight that might be accorded to the actions of police officers relying upon their accumulated experience about certain classes of incidents when they are engaging in predictive exercises:
“… where a police officer encounters circumstances of a kind which, by reason of his or her previous experience, he or she rationally associates with an identified class of committed or anticipated offending, the occurrence of those circumstances may reasonably lead the officer to conclude that there is a significant probability of that identified class of offending taking place.”
In the same case, at [117], Gordon J also referred to the entitlement of police officers, when engaging in a process of prediction, to rely upon assumptions of human nature of a certain class of a certain offender.
The effect, or one effect, of this that the experience which officers develop when dealing with typically recurring incidents – experience denied to lay persons – is part of the well that officers are entitled to draw upon when deciding what to do, especially in the ‘agony of the moment’. These matters provided, at least, a partial answer to Ms Music’s contention that a Jones v Dunkel inference should be drawn adversely to the State from its omission to call other police officers (including, but not limited to riot squad officers) to say what they would have done. Suppose a riot squad officer took a different viewpoint, forged perhaps from different experience in trying to exert control over uncontrollable persons. Even if that was so, it could not be accepted that such riot squad officer would have known the same information known by LSC Cashmere about Ms Music.
The State argued that LSC Cashmere’s identification of the various options for him should be accepted. If there was one thing that was pellucidly clear: Ms Music had made it perfectly plain that she would not voluntarily accompany police to the hospital. Ms Music herself admitted this in her testimony. She would not go willingly (T 346.7). Even after the first spray was administered, she did not comply with the direction given to her to get to the ground, despite receiving that direction twice (including from LSC Cashmere). This was a continuation of the earlier pattern of her obstruction and evasion: she had hidden, she had barricaded her front door to try to prevent entry. Waiting for Ms Music would not have helped in such circumstances.
Accepting, as the Court should, that LSC Cashmere was empowered to apprehend her and arrange for her transportation to a hospital, practically speaking, the choice facing LSC Cashmere was between using the capsicum spray (accompanied as it was by prompt steps to ‘decontaminate’ and reduce its effects through the ambulance) or to physically grab Ms Music, which presented other risks of physical injury: whether that be in any attempt to pull her away from a fence that she might try to surmount, or just falling on top of her. It was immaterial that LSC Cashmere was bigger or stronger than her. There was an inherent risk that she might have secreted a weapon. Thus, the circumstance of presenting her hands in the open, as LSC Cashmere said she did, did not preclude that possibility. Even if she had not secreted a weapon on her person, in the act of any police officer falling on her, broken bones might have occurred – either hers or theirs. Another risk, perhaps heightened in the COVID-19 environment prevailing on 30 September 2021, was that she might bite, punch, scratch or spit upon an officer or engage in other acts of physical resistance to avoid being detained and thereafter scheduled.
Ms Music submitted that the State’s argument that she would never go to the hospital voluntarily with the State was overstated. To the extent that the State relied upon an admission by Ms Music on the matter, her evidence was more equivocal than that for which she had been suggested. The State’s reference to Police awareness of her being scheduled in January 2019 (noting that Ms Music accepted the Court could find that LSC Cashmere was aware she was previously scheduled) was instructive in the sense that there was nothing to indicate she resisted that process back then. At any rate, retrospective accounts of what she would have done in a counterfactual were not probative when the proper focus was on the reasonableness of LSC Cashmere’s state of mind.
It was unrealistic to suppose that LSC Cashmere contemplated the scenario of Ms Music potentially climbing the fence. This was an instance of the nature of the reconstruction he engaged in. The body-worn footage (Exhibit B) indicated he reached for his spray as he descended the stairs and this was plainly incompatible with the possibility he engaged in the course of decision-making that he said he engaged in.
What LSC Cashmere said to Ms Music after spraying her, with reference to her not wanting police to be spat at and her shaping up, was more probative of his state of mind than his testimony years later.
Although the defence was maintained in connection with the battery claim, it was faintly pressed and, in my view, founders on a number of levels.
First, the State did not assert, much less seek to prove that by using the capsicum spray, LSC Cashmere was responding to ‘unlawful’ conduct by Ms Music (or conduct that would have been unlawful but for her suffering from a mental illness). The State did not suggest that she had engaged in unlawful conduct resulted, say, from her disobeying a lawful direction (for example, to get on the ground) or, even if that was the case, this was conduct that generated an entitlement to use self-defence.
Secondly, LSC Cashmere’s stated purpose was to incapacitate Ms Music temporarily, and in the least restrictive fashion as possible, so as to enable police officers to restrain and detain her before her transporting her to a hospital. I reject his evidence that he believed that by Ms Music telling police to ‘fuck off’, he perceived that this constituted a verbal threat to him or any other police officer; in the sense of an apparent threat that she intended to harm police. I further reject the proposition that even if her ‘shaping’ up was could have been construed as putting her in a position to attack, that conduct (either with the swearing or alone) led him to think that the spray was necessary to defend himself or other officers (per s 52(2)(a)). None of the other matters in s 52(2) were viable grounds.
Section 81 of the MH Act does not define what is meant by “reasonable force”. Accordingly, Parliament may be taken to have left the matter to be determined by common law principles, including those as identified in the leading case (in New South Wales) from Woodley v Boyd cited earlier.
At the point she was found in the backyard of the neighbouring home, I accept that Ms Music continued to appear to be mentally disturbed since the point, not long before, when the police officers forcibly entered her home and further, that LSC Cashmere continued to hold the beliefs identified in s 22(1)(a) and (b) of the MH Act.
I also find that the subjective beliefs in s 22(1)(a) and (b) were reasonably based. In this regard, Ms Music had shut herself off from communications with police that had recently occurred at her home. Even when it was obvious by the police response, including the extensive steps taken to locate her, that they were bent upon detaining her for the purpose of taking her to hospital, Ms Music still was intent upon evasion. LSC Cashmere at the time had no reason to think that his concern, which he had held when he was at her home, that she was at risk of self-harm, had abated. Further, her conduct in fleeing her home in the circumstances that she did would reasonably have intensified LSC Cashmere’s belief that a mental health assessment was appropriate.
Turning to s 81 of the MH Act, it was not seriously disputed that LSC Cashmere subjectively believed that the administration of the capsicum spray was necessary to restrain Ms Music for the purpose of taking her to a mental health facility, and I so find.
Implicit in the finding I have just made about LSC Cashmere’s belief is the notion that he believed that in the circumstances that he faced, and with the knowledge that he had, he believed that he had not other choice if he was to achieve his immediate purpose of restraining her for that stipulated purpose.
I now turn to certain ramifications of the objective requirement that “reasonable” force be used and that restraint of a person be reasonably necessary. I accept that the notionally reasonable police officer would be conscious of the duties of police officer, identified by Heydon JA in Woodley at [37] and that an assessment of whether force is reasonable is to be made prospectively; not with hindsight. The issue is not what the notional reasonable officer (or actual on-lookers) would themselves have done.
Further still, and consistently with Prior v Mole, the notional reasonable officer may make allowance for experience that the arresting officer may have had when making an assessment of the necessity for force, and the choice of what form of force should be deployed in categories of case, including as part of that assumptions about human nature and perceptions as to how persons, particularly those who present a risk or appear to be engaging in resistance to arrest, may behave.
As to the false imprisonment claim, Ms Music referred to the circumstance that at or about the time she was handcuffed and continuing until her discharge from hospital, no police officer explained to her the reason why she was detained. This, it was said, was contrary to an entitlement in common law sourced in the authority of Christie v Leachinsky [1947] AC 573 and also State of New South Wales v Riley (2003) 57 NSWLR 496 which authorities were referred to in Benn v NSW at [33].
Even if (which Ms Music did not accept) she was told at her home by Constable Casey or LSC Cashmere that police had decided to exercise the power under s 22, he or they needed to have that verbal notification repeated at the point she was handcuffed approximately 50 minutes later after the administration of the capsicum spray. That entitlement was not lost because, after the spray, Ms Music was grappling with the pain and injured feelings associated with being sprayed.
The State referred the Court to the analysis (at [49]–[51]) of Gleeson JA (Meagher JA and Johnson J agreeing) in Benn. The State argued that the status of the common law authority upon which Ms Music was reliant was in doubt, given that Riley was decided before the introduction of the provisions in the LEPR Act. The Court of Appeal in Benn indicated that it was unnecessary and inappropriate to decide the question.
The State submitted that this Court should find that the effect of the provisions in LEPR Act, and in particular ss 4(1) and 201(3), is that where the power of arrest is sourced in s 22 of the MH Act, the common law requirement of notification of the reason for arrest does not apply.
The State’s Counsel referred me to the Second Reading Speech of Ms Linda Burney, Parliamentary Secretary, regarding the Police Powers Legislation Amendment Bill (14 November 2006) where she relevantly said:
“… no warning is required .. if police powers exercised under other Acts are not subject to section 201. These Acts have their own accountability provisions, if needed.”
The State pointed out that Parliament had looked at the MH Act more than once since the enactment of the LEPR Act and on neither occasion did it see fit to alter those accountability provisions.
Alternatively, the State contends that even if the common law authority survives the provisions in LEPR Act, the same result is reached. The Court was referred to observations in the decision of Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 and, in particular the distillation of common law principles derived from Christie v Leachinsky by Beazley JA (as her Excellency then was) at [30]. This relevantly included the following points:
“(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 one 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 restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.
(5) The person arrested cannot complain that he has not been 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.”
The State submitted that no requirement arises where the person knows why they are being arrested or detained. On the facts in this case, Ms Music well knew why police sought to detain her. She had had earlier experience (in January 2019) of being scheduled prior to 30 September 2021 and her conduct on the day manifested serial efforts to avoid detention which were consistent with her awareness of the reason why police sought to detain her.
Further, the State submitted that if it should be found that there was false imprisonment, that only lasted until 6:19pm on 30 September 2021, when Ms Music was admitted to Blacktown Hospital; and when legal authority to control her was transferred from police to the hospital. The State referred the Court to the authority of Diamond v Minter [1941] 1 KB 656 and Harnett v Boyd [1922] 2 KB 517.
The act of handcuffing Ms Music and escorting her to the ambulance followed very shortly after the capsicum spray incapacitated her.
Nothing had occurred since the occasion when there was forced entry into Ms Music’s premises which would have severed the subjective views of each of LSC Cashmere and Constable Alo that there was a probability that Ms Music would kill or seek to harm herself and that her welfare could best be protected by her being assessed by a mental health clinic. Indeed what had occurred since then would reasonably have heightened those beliefs. She had gone to great trouble to continue her resistance to police and, what is more, continued to rain down verbal abuse to police officers immediately before and immediately after the capsicum spray was used.
I find that ss 22 and 81 of the MH Act authorised the handcuffing. In particular, the conduct of LSC Cashmere and Constable Alo in handcuffing Ms Music was reasonably necessary in the circumstances. This may appear counter-intuitive, given my determination on the battery claim. However, having gotten her incapacitated, albeit by unlawful means, does not of itself invalidate the lawfulness of subsequently detaining her under s 22 of the MH Act.
I do not find persuasive Ms Music’s argument that, after the spray, she would have yielded so that she would voluntarily have gone to the ambulance vehicle. She was (and I do not mean to be critical on this point) in a partly hysterical state; plainly indicated her indignation. Her conduct following the spray was the antithesis of cooperation. I further accept that handcuffing was appropriate as she was led through a house whose contents was unknown to both police officers and Ms Music. It does not take much imagination to conjure that if her hands were not restrained, in the enraged state that she was then in, she might have picked up an object and used it against one or more of the officers to facilitate her escape.
For the purposes of s 81(2) of the MH Act, both matters (a) and (b) were satisfied.
If it was necessary to decide, I would have been inclined to accept, for the reasons submitted by the State, as summarised, that no indication was required to be given to Ms Music that she was being handcuffed under s 22 of the MH Act (and/or under s 9 of the LEPR Act). In particular, the text and context suggests that it is statutory provision – not the common law – which governed the position. Be that as it may, the common law principles identified in Johnstone obviated the requirement for such indication in the circumstances referred to in the State’s submissions (see paragraph 319) above.
The claim of false imprisonment also fails.
“(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death …”
In Croucher v Cachia (2016) 95 NSWLR 117, Leeming JA (with Beazley P and Ward JA agreeing) indicated (at [34]–[35]) that when considering the first intention, that is, the intent to commit the act, it was necessary to characterise the conduct alleged rather than by reference to the cause of action pleaded.
As to the intent to cause injury, ‘intention’ in this respect, refers to the relevant police officer, or officers’ actual, subjective and formulated intention, to which the defendant has turned his or her mind. It does not include recklessness, imputed or presumed intention: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658 (“Dickson”) at [181]–[186].
It was common ground that, insofar as the claim for false imprisonment was concerned, if liability was found to arise, then the intentional act of handcuffing her and restraining her freedom of moment, at least up to the point when she was admitted to Blacktown Hospital (at 6:19pm on the date in question) was done with an intent to deprive her liberty; and that this constituted an ‘injury’ for the purposes of s 3B(1)(a) [18] .
Ms Music contends that the injury giving rise to her claim was the exacerbation or aggravation of PTSD consequentially upon the infliction of physical injury. The physical injury was constituted by the infliction of pain, albeit of relatively duration. Further, the mental illness of which she complained was a natural consequence of the pain that was inflicted by the spray. (It was not suggested that the acts of LSC Cashmere or Constable Alo escorting her to the ambulance were injuries giving rise to her claim). The effect of this approach was that so long as LSC Cashmere intended to inflict some, or any injury (the pain in the eyes) it did not matter that he did not intend to cause psychological harm
Ms Music referred to a decision of Campbell J in Hamilton v State of New South Wales (No.13) [2016] NSWSC 1311, where his Honour said (at [190]–[194]) that although the police officers in that case neither intended to inflict physical injury nor psychological harm, they did intend to inflict pain to such degree as to bring him to a ‘position of submission’ and that this was enough to engage the carve out in s 3B.
The State contends that the use of the spray conceivably gave rise to two separate injuries: the pain Ms Music experienced in her eyes (a physical injury), or alternatively, psychological harm. Both could be viewed as injuries and in the event that they were caused by unlawful (and intentional) force, they should be separately addressed. That being so, it would need to be separately considered whether LSC Cashmere intended to cause each separate injury. Although the State conceded that he intended to cause the physical injury; he did not intend to cause the psychological injury.
The State further submitted that LSC Cashmere’s intention was not to cause injury but almost the very opposite: to protect her life. To the extent that the claim was advanced for psychological damage, that was not even a probable consequence of the use of the spray; let alone a result that he intended. The circumstances did not suffice to engage the carve out in s 3B(1)(a).
As to the concept of ‘injury’, as it appears in s 3B, there is no definition of the term.
In my opinion, the injury giving rise to the claim may be characterised in the way that the plaintiff submits: the exacerbation of PTSD. That is also consistent with what the plaintiff stated in her Statement of Particulars although the reference there is to “chronic” PTSD, which I interpret as impliedly indicating pre-existing PTSD which was allegedly made worse by what occurred.
However, I am not persuaded that the exacerbation of PTSD was consequential from physical injury. It was not a case, say, where depression arose from suffering of pain; even if Ms Music momentarily was distressed by the thought of losing her eyesight. Her case, to use the terminology adopted in Part 3 of the CL Act, was one of ‘pure mental harm’, rather than ‘consequential mental harm’. The distinction was illuminated in the decision of Campbell J in Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 where his Honour noted that although the incident involved a physical attack and that the plaintiff sustained physical injuries, the damages claimed related solely to his psychiatric condition. At [83] his Honour said:
“Those blows and his injuries are part and parcel of the incident. But I find it difficult to accept that the PTSD is merely consequential upon those physical injuries. Rather, in my judgment, that psychiatric condition is a case of pure mental harm being an independent injury arising out of the fear for his life suffered by Mr Wright as a result of George assaulting him and attempting to throw him off the balcony.” [19]
The asserted psychological harm (exacerbation of pre-existing PTSD) constitutes a form of ‘injury’ that is capable of falling within the notion of ‘injury’ for the purposes of s 3B.
Nevertheless, this is only part of the requirement to engage the carve out in s 3B. It remains the position to take her case out of the carve out, under the approach adopted by Basten JA in Dickson, which, I would add, post-dated the decision of Hamilton and, with respect, accordingly diminished the status of that decision as a precedent [20] . His Honour’s approach is to require that the tortfeasor (actually and subjectively) intends “the injury which has resulted in compensable loss.”
It appeared to be common ground, but if not, I would otherwise conclude, that this Court should follow the approach adopted by Basten JA in Dickson, by which the assessment of ‘injury’, for s 3B purposes, be undertaken by reference to the injury which gives rise to the claim. Although the other Judges of Appeal in Dickson did not endorse that approach in terms, the approach was subsequently adopted by Harrison J (as his Honour then was, Ward P and Griffiths AJA agreeing) in Ray v Southon [2022] NSWCA 267 a [41], and by Adamson J (as her Honour then was) in Hannam v State of New South Wales (No.9) [2022] NSWSC 648 at [136]–[137]. The injury fell within the third of three potential gradations of injury identified by Basten JA in Dickson at [11]-[14] (and referred to by Simpson AJA at [191]). For the reasons explained at [15] of Basten JA’s decision, that is insufficient. I would respectfully add that textual and contextual considerations tend to support a narrow interpretation of the carve out in s 3B(1)(a) generally and the expression ‘intent to cause injury’ in particular where intentional acts are carried out negligently: see for example, s 5A of the CL Act. This was partly alluded to by White JA (at [37]) in his Honour’s reference to extrinsic material. Parliament was undoubtedly aware that there are multifarious activities in life that are, to some extent socially beneficial (or at least tolerable), but which notoriously and inherently involve the intentional infliction of physical contact upon persons and an associated risk of injury. Some of these intentional activities are seen in the jurisprudence that has built up about s 3B(1)(a): from surgery, [21] to recreational body contact sports [22] and, as in this case, the use of state-sanctioned force. When Parliament generally intended to reduce the incidence of awards of damages for personal injuries, it is not readily to be supposed that where state-sanctioned force was honestly, albeit negligently, inflicted for a legitimate or lawful end, the availability of restrictions on liability regulation of damages should be taken out of the realm of Parts 1A and 2 (respectively) of the CL Act*.*
Ms Music must establish that LSC Cashmere actually and subjectively intended to cause the injury giving rise to her claim: the exacerbation of PTSD.
It was common ground that Ms Music suffered a pre-existing mental illness. What was in dispute was whether any tort by the police officers exacerbated her PTSD in a material way. That is a causation question. Depending on how that is resolved, it would then be necessary to consider quantum issues.
The evidence on causation was predominantly that which was adduced by the State. Some of this was the subject of evidence given by Ms Music, which I will deal with first.
Curiously, whilst generally affirming the correctness of a chronology that had been prepared (Exhibit A), an exception was an entry of 26 June 2017, when her then-counsellor, Lisa Brown, wrote a letter to the Department of Housing referring to Ms Music’s diagnosis of PTSD. Ms Music said she saw Ms Brown between 2015 and 2017 to help her deal with the domestic violence issues she had with Mr Settineri.
Ms Music’s perception about them was that Mr Settineri was fine, so long as he was not intoxicated with ice. But once he was high, he acted aggressively towards her, and was physically violent towards her. She regarded herself as the ‘victim’ and denied having any substance use disorder herself. As to Ms Brown’s ‘PTSD diagnosis’, Ms Music said that she did not recall being told of that, by Ms Brown, or any other practitioner.
She said that prior to the incident giving rise to the proceedings, in September 2021, the last time she had any episode that she thought bore on her mental health was in 2018. She said she had not seen a counsellor since late 2017 (although had some brief phone contact with Ms Brown in early 2018 to deal with the incident concerning police that she had narrated). She said that in the period of two months leading up to the incidents, she had not experienced any nightmares, flashbacks or panic attacks, although she accepted that she was under some stress; principally because of the COVID-19 Pandemic. She also said she felt no sense of pressure about her capacity to continue renting the accommodation.
In cross-examination, Ms Music did not really dispute that from 2016 to 30 September 2021, she had experienced panic attacks, sleeplessness, unwanted dreams, not feeling good in the stomach and a sense of hopelessness (T 282).
Ms Music accepted that she told Dr Allnutt of her having experienced panic attacks intermittently and was both emotional and sad prior to 30 September 2021. She told him she had previously been diagnosed with depression.
Separately, it appears that another partner of hers, Peter, had died, unexpectedly. A note of Ms Brown in April 2016 referred to Ms Music having experienced nightmares about that.
A mental health referral form completed on 13 October 2021, about two weeks after the events of 30 September 2021, recorded that the plaintiff had engaged in a suicide attempt in 2012.
An ambulance record of 31 May 2014 referred to Ms Music having taken 20 Atacand tablets (prescribed for her high blood pressure) with two bottles of wine.
Other ambulance records of 30 May 2018 and 20 January 2019 referred to suicidal ideation or threats to kill herself, as a result of incidents occurring on those days that were referred to earlier in these reasons.
Ms Lisa Brown is a counsellor from an organisation called the ‘Wash House’, which is devoted to the welfare of women who have experienced domestic violence. Reference was made to her history and the effects upon her of the incident on 30 September 2021. Ms Brown wrote a letter purporting to verify her association with Ms Music over the previous two and a half years; which would have been some point in 2019. Ms Brown noted that when Ms Music first presented, she did so with symptoms of PTSD and with anxiety being a ‘significant issue’. Ms Brown also noted Ms Music’s ‘long’ and ‘severe’ history of domestic and family violence perpetrated by her ex-partner. Ms Brown indicated that Ms Music had told her of her ‘problematic’ relationship with police. Two incidents were referred to and Ms Music had indicated to Ms Brown that she had refused to involve police in any further assaults. Ms Brown had seen Ms Music on 34 occasions between 2022 and 2024.
Specifically, Ms Brown referred to Ms Music’s suicidal ideation in a note of 12 April 2016, and an earlier suicide attempt. Even at that point, when he would have been in adolescence, Brandon was before the Courts and had demanded money from her.
Separately, Ms Brown noted Ms Music’s suicidality in a note on 26 July 2016 and reports of Brandon’s (apparently verbal) abuse of her.
Prior to her being discharged from Blacktown Hospital, a medical officer, Dr Charbel Hayek performed an assessment.
A patient health record recorded that Dr Hayek discussed the case with Dr Wayne Lee, “who agreed with her discharge given the absence of any signs of mental illness, as defined by the mental health act (2007)”.
It was noted that Ms Music had presented in “acute distress” following a “crisis” triggered by threats of legal action and her son’s imprisonment.
Dr Hayek’s record of 30 September 2021 noted that Ms Music had “denied any suicidal ideation, denied hallucinations, delusions, depressive cognitions, specifically any command hallucinations”. Ms Music was found, on a mental health examination, to have ‘reasonable’ insight and judgement in the circumstances. A diagnosis was given of her having an adjustment disorder with anxious distress.
Upon being sprayed with the capsicum spray, Ms Music described the incident as the “worst thing that had happened to her in her life”. She said her whole face “felt on fire”.
Ms Music said that following the incident, she experienced nightmares, flashbacks, continuing as recently as the week before she gave evidence. She also referred to her experience of anxiety, manifested by her shaking and having difficulties with her breathing. One trigger which she referred to was hearing a police siren when driving. She referred to a subsequent incident with police.
She spoke further about depression. She said that nothing excited her anymore. She did not go out to the pub with friends to listen to bands. She believed that she had lost her (social) confidence.
For the purpose of this proceeding, Ms Music saw the psychiatrist Dr Allnutt, but she had not seen any psychiatrist for the purposes of receiving treatment. She said she would like to. On the last aspect, Ms Music was challenged. Her evidence was that no one had suggested she do so.
Dr Lorna Benedicto is Ms Music’s general practitioner. She wrote a letter to Ms Music’s lawyers (Exhibit M) indicating the consultations with Ms Music after 30 September 2021. These occurred between 5 October 2021 and 25 January 2023. On 8 October 2021, Dr Benedicto administered a questionnaire generally addressing her mental state. On 13 October 201, Dr Benedicto prepared a mental health care plan, in which diagnoses were made of depression and anxiety. Dr Benedicto also noted that she had prescribed Ms Music an oral antidepressant on the same date.
On 23 June 2025, about a month before the commencement of the hearing, Dr Benedicto prepared a mental health referral (Exhibit Y, pp 17-18) for Ms Spatz (see below). This was done to assist her psychological therapy. Dr Benedicto ticked the boxes in the section ‘Principal Diagnosis’ described as ‘Generalised Anxiety’, ‘Major Depression’ and ‘Complex PTSD’. The severity of these conditions was designated by the category ‘Severe Complex’.
As indicated above, when referring to earlier episodes of suicidality or suicide attempts, Ms Lisa Brown is a counsellor of Wash House, a facility dedicated to the protection of women. In Ms Brown’s letter of 7 October 2021 (Exhibit P) the counsellor ‘verified’ that Ms Music had been a client of ‘Wash House’ two and a half years before; when she had presented with symptoms of PTSD after a ‘long’ and ‘severe’ history of domestic and personal violence. Ms Brown reported Ms Music’s indications that she felt terrified, crying and shaking due to the police ‘pursuing her’. Ms Music reported to her that following the spray, she apprehended that she would never be able to see again. Ms Brown also noted in the same letter that Ms Music considered that it was important for her hearing that she bring a formal complaint for how she was treated by police.
A subpoena to produce was issued to Wash House. Amongst other documents produced (Exhibit U) was a letter from a Resident of Westmead Hospital to the Emergency Department recording that Ms Music had been admitted on 29 March 1998 after an alleged assault by her partner (featuring biting and hitting her around the head).
I referred earlier to Ms Brown’s letter to the Department of Housing dated 26 June 2017, in support of her application. The letter referred to a long history of trauma, the necessity for Ms Music to leave 12 times because of her partner’s violence, her having experienced flash backs, panic attacks and nightmares as a regular occurrence.
In a file note of 21 November 2017, there was a reference to Ms Music’s depression. In a note signed by Ms Brown on 9 August 2016, Ms Music had described her future as ‘hopeless’.
The plaintiff also relied upon some material produced by a clinical psychologist, Dorota Wachala, of the practice named ‘Clinical Minds’ (Exhibit T). Ms Wachala corresponded with Dr Benedicto on 24 November 2021, having had a telehealth session the previous day. She described Ms Music’s mood as being depressed and anxious but did not discern any formal thought disorder. She suggested a combination of CBT and Acceptance Commitment Therapy. She anticipated having 5 sessions with Ms Music. However, when she wrote again to Dr Benedicto on 5 May 2022, Ms Wachala reported having met Ms Music only once with other scheduled appointments not coming to fruition. She reported that Ms Music was not ready to address her mental health issues.
“Additionally, she has a trauma background that included severe domestic violence incidents that made her fear for her life on several occasions. However, the recent trauma inflicted by police left her with significantly worse trauma reaction. The nature of the trauma was distinctly different in that she was never expecting to be mistreated by police. She was shocked by the sheer force police officers applied. She was in intense pain from how police used pepper spray and physical force to restrain her, when she was not posing a threat to them. She has severe re-experiencing and hyperarousal symptoms due to incidents with the police.”
In the same letter, Ms Spatz noted Ms Music’s anxiety concerning the (then) upcoming proceedings against the NSW Police Force.
In the last note prior to the commencement of the hearing, being 18 July 2025, Ms Spatz recorded Ms Music’s being “fearful since the incident with the police that they will knock on her door again and find her”. Ms Spatz identified this as a PTSD symptom.
In the period before the resumption of the hearing after the adjournment, there was another incident involving Ms Music and Mr Settineri.
A COPS event entry created on or about 4 October 2025 (Exhibit 8) indicated a police response to a local informant’s complaint of a domestic argument, involving a scream (inferentially) by Ms Music, between herself and Mr Settineri. It was to do with, or arose from, an argument as to whether a dog should be let inside the house. The State emphasised that, according to the COPS entry, Ms Music agreed to attend a police station the following day to demonstrate the absence of injuries. Upon her recall as a witness [23] , Ms Music explained that Mr Settineri went to Gwandalan because of her concern about the welfare of her dog at a point where, to her mind, Mr Settineri was in a state of psychosis. It appears Mr Settineri resented the presence of her dog in the place. Ms Music confirmed that she and Mr Settineri had had a (verbal) argument about it. She accepted that she was supposed to attend Castle Hill police station the following day, so as to validate her assertion that she was not injured by Mr Settineri, but she did not do so since she did not want to see them.
In addition to that dispute, Ms Music also indicated upon her recall that she had physical contact with her son, Brandon through September and October 2025 at a point when he was, as she understood it, under ‘house arrest’
Dr Allnutt, a Senior Consultant Forensic Psychiatrist, conducted a clinical evaluation of Ms Music on 6 July 2023, before this litigation commenced. His report is Exhibit K (with his curriculum vitae being Exhibit L).
He diagnosed Ms Music as having a constellation of depressive, anxiety and PTSD symptoms.
Dr Allnutt acknowledged ‘pre-existing stressors’, including Brandon’s methamphetamine abuse and her difficulties with him, Mr Settineri’s “ongoing coercive control” and other matters occurring after 30 September 2021, being her eviction “due to the police damaging her door”, as ‘contributing and aggravating factors’.
Dr Allnutt thought that although Ms Music had been exposed to prior trauma, as well as pre-existing stressors, the force applied to her on the day in question made a substantial and material contribution to aggravating a pre-existing trauma and stressor-related disorder and that she had “now” suffered from a chronic PTSD, depression and associated anxiety.
Dr Allnutt regarded her prognosis as being guarded at the date of the report. When he gave evidence, he explained that although he thought her ‘aggravation’ would reduce over time, he could not say when that would be.
Dr Allnutt was cross-examined. A recurring feature of it was the suggestion that based on a range of factors, Ms Music might have had a pre-existing condition consistent with (in particular) having an underlying paranoid personality disorder. Some of those factors included what the State contended were her earlier uncooperative and aggressive interactions with police; her not taking medication, or seeing psychiatrists when that was recommended to her; and an apparent reluctance even to equip herself with an SOS device linking her to police for fear that her former partner might locate her whereabouts. Dr Allnutt did not discount the possibility, but argued that the factors were consistent with other diagnoses as well; including anxiety, or even psychotic disorders. He adhered in substance to the view that what had occurred on the day of the incident giving rise to the litigation was an exacerbation of a pre-existing stress disorder. Dr Allnutt pointed out in re-examination that a person with traumatic PTSD is prone to paranoia and fear. Separately, he also accepted that Ms Music exhibited the traits of Borderline Personality Disorder.
Another feature of the cross-examination concerned instructions or information sourced from Ms Music which, the State contended, were demonstrably false and Dr Allnutt was asked how this bore on his opinion. These events included assertions of police officers kicking her whilst she was down or sitting down (and/or bouncing) on her stomach in the ambulance vehicle. His answer, as I understood it, was that it might mean that she may have misperceived events under fear and stress on the one hand; but she also might have been exaggerating or even lying on the other. On balance, Dr Allnutt said he thought she was in a heightened emotional state and misperceiving events as a consequence. In re-examination, when referred to prior interactions with police, Dr Allnutt elaborated that a common symptom is a loss of trust, or mistrust. In answer to a question I raised of him, Dr Allnutt appeared to suggest that she harboured a mistrust of men generally; not male police officers per se. He thought that Ms Music was vulnerable to many things because of trauma. That might include a tendency to misinterpret.
Ms Music saw a psychologist, Peter Gough [24] , on 6 July 2022. This related to Ms Music’s being charged with an offence to be heard in Local Court proceedings. Mr Gough was instructed to prepare an assessment report with reference to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ahead of her hearing in the Mount Druitt Local Court scheduled for 28 July 2022. Mr Gough’s report of 7 July 2022 is Exhibit 7.
Mr Gough was not required for cross-examination. Indeed it was the State who tendered the report (after an initial objection to it by Counsel for Ms Music was withdrawn). A curriculum vitae to the report was attached. On its face, it reveals that Mr Gough was, and is, highly qualified in terms of academic attainment and professional experience.
Mr Gough opined that Ms Music met the criteria of having a ‘mental health impairment’ at the time of the charge, namely PTSD and a Major Depressive Disorder. He considered that she had likely had symptoms of both illnesses for nearly two decades. She had reached the point (at that time) where she could not self-regulate her behaviours or emotions.
Mr Gough considered virtually all the aspects of Ms Music’s life: her family and development history, her educational and vocational histories, her history of relationships, her substance use history, her medical and psychological history.
Ms Music was referred to Mr Gough’s report during cross-examination. She said that she thought that many of the things written about her by Mr Gough were not only untrue, but were outright lies. In fairness to Ms Music, her assertion about inaccuracies or untruths about what Mr Gough attributed to her was the subject of complaint by her to her lawyers in advance of the Local Court hearing. Indeed, Ms Music was so upset by its content that she indicated to her lawyers that she would rather plead guilty to the offence to which she was charged rather than have the report which her lawyers intended to put to the Magistrate in support upon to support a diversion of her matter into the mental health stream, rather than being dealt with for under the criminal law (Exhibit J).
Nevertheless, during a break in proceedings, in the course of that cross-examination, Ms Music was given the opportunity to identify those parts of the Gough report where she denied saying things apparently attributed to her by Mr Gough. These concerned parts of paragraphs 13, 16, 26, 28, 29, 30. At least one of those matters of which she complained (especially paragraph 29) was not a factual statement which Ms Gough attributed to, or was sourced in what Ms Music told Mr Gough, but was an opinion expressed by the psychologist which Ms Music disagreed with. The other matters, with respect to Ms Music, did not strike me (individually or cumulatively) as being all that material in terms of diminishing the force of the psychologist’s report, even if Ms Music’s objections were valid. The most obvious explanation was difficulties in communication or misunderstandings. Still, Ms Music believed that Mr Gough told lies about her. That belief was unsubstantiated and thoroughly implausible for want of any motive on Mr Gough’s part to tell mistruths. That Ms Music persisted in that belief bore adversely upon her reliability.
“Throughout her childhood, adolescence and early adulthood, Ms Music was afforded emotional and physical safety, security and parental nurturing from within her family, friends and workplace that allowed her to transition through normal emotional development. She is prosocial in her view of herself and her work ethic, never having been employed until circumstances regarding COVID saw her retrenched… Tragically her prosocial activities such as stable employment, raising her son and living without fear has intersected with the violent and terrifying behaviours of her former partner that she has been exposed since she was 22 years of age that she can’t escape from, in part at least as it seems her son and her ex-partner have developed a dysfunctional alliance that continues to trap her. She now lives in a state of perpetual fear and hypervigilance, with the only anchors in her life being the relationship with her parents and siblings and the hope for her son’s rehabilitation. Ms Music stated that when she entered the relationship with her ex-partner, she was aspirational, motivated and excited to what the future held for her and her growing family. Over the five years of her relationship, she was faced with a severe disruption in her developing sense of her self, her role as a mother, her ability to find a sense of safety and security within the home for her and her son. She transitioned from an aspirational outlook towards her future to one of survival and fear. Her relationship and subsequent regular interactions with police and real estate agents have had a major negative impact on her psychological wellbeing and view of the community as a whole. This has entrenched her level of mistrust and detachment from those she sought refuge and safety from to protect her and her son from the horrors of her violent relationship. She has lost a level of insight and judgement regarding the behaviours of her ex-partner and transferred her anger and fear from her ex-partner to the police, with whom she states have failed in protecting her and her son. She now believes that the police view her as a criminal, rather than a person in need of protection…
Since the devolution of her relationship, and her ex-partners frantic efforts to stalk and intimidate her, Ms Music has not been able to escape constant triggers and reminders of the violent attacks and injuries perpetrated upon her. She often experiences an intense feeling of fight or flight and has adopted the fight response when she is unable to flee the perceived threat and provide the immediacy of self-protection. She has spent many years moving from house to house attempting to hide, and when she cannot escape, she uses anger, aggressiveness and veiled threats in an attempt to protect herself. Her view of who to trust within the community has been significantly distorted, hence her running from the police when they her (sic) attended her house on the night in question …”
In relation to the charge that she faced in the Local Court, Mr Gough commented further that her actions were linked to her PTSD symptomology and major depressive disorder in that she was triggered into a ‘fight-or-flight’ response by the police officer in which she ran off, became volatile out of her perceived fear of police and her anxiety that she would be arrested and in turn evicted.
Mr Gough attached to his report a treatment plan which, he thought could enhance her prospects of rehabilitation if the plan was adhered to as well as moderating her symptomatology. This plan was comprehensive: it ran to 9 paragraphs, including coverage of the different mental health professionals she might consult as well as medication.
Ms Music was questioned about this treatment plan. It could not be said that she meaningfully complied with it. She did not obtain the referral to a psychiatrist. Although she referred to difficulties with a particular psychologist who she consulted because of language barriers, she did not conscientiously pursue that. She could not recall discussing the Gough report to her counsellors. She did not engage in cognitive behavioural therapy. She confined herself mainly to counsellors. When questioned about her compliance (or lack thereof), Ms Music did not suggest that economic considerations precluded her from obtaining the treatment that she needed.
The parties agree that Ms Music had a pre-existing mental illness of PTSD prior to the events of 30 September 2021. Where they disagree is on whether or not that was materially exacerbated or aggravated by what occurred.
Ms Music submitted that I should accepted Dr Allnutt’s view that she had a pre-existing PTSD whose nature was materially exacerbated or aggravated by the act of being sprayed with the capsicum spray. Whilst not denying that some of the things that Ms Music told Dr Allnutt were wrong (as was apparent from video footage played in the hearing), Ms Music submitted the Court should find that this was more likely the product of misperception, associated with her mental condition, than the result of deliberate falsehood.
Relying upon Dr Allnutt’s opinion, she submitted that the act of using the spray did materially exacerbate her PTSD. Ms Music had stopped seeing Ms Rose about two and a half years before the subject incident. This arose from her attempts to deal with domestic violence without being affected by dealings with police.
She stepped up attempts to receive treatment not long after the events of 30 September. She had, for example, seen her general practitioner, Dr Benedicto, the Tuesday after the event occurring on 30 September 2021 (ie 5 October 2021). She saw Wachala twice in late 2021 and came into Rose’s care in 2022.
The State argues that all along, Ms Music has been motivated by malice towards the police, as was apparent in her behaviour shortly after she had been sprayed and as she moved towards the ambulance: amongst other things, she had made promises to ‘bury’ the police officers.
She demonstrated a propensity to pick and choose what she told various counsellors or Dr Allnutt without being fully forthcoming and withheld facts that did not support her narrative. This was not explicable by misperception. This, in effect, was the result of calculation or deliberation on Ms Music’s part and not misperception. As to the former, she chose to see Ms Rose (after having declined many earlier opportunities to see mental health experts) for the first time two days before a hearing in the Local Court. This was 10 months after the events of 30 September 2021. As to the latter, although she disapproved of a report that the psychologist Gough had prepared for her use in Local Court proceedings (which, I infer was still tendered on her behalf), the reasons for her dissatisfaction did not survive scrutiny. She or her lawyers, did not provide the Gough report to Dr Allnutt or bring to his attention other matters undercutting factual premises that Dr Allnutt relied upon.
Extensive evidentiary references were given to her earlier suicide attempts, or suicidal ideation. She had received attention from a hospital arising from a domestic violence incident from Mr Settineri as far back as 1998 and she had been diagnosed, or suspected of having PTSD since 2014.
The State submitted that there are limits upon what mental health professionals can opine in the absence of reliable patient histories. Further, the Gough report featured a more holistic account of her condition in comparison to Dr Allnutt’s report, including but not limited to the effect on her mental state of her interactions with police; albeit that there is no specific reference in the report to the events giving rise to this proceeding. The Gough opinions should be preferred to those ventured by Dr Allnutt.
If, contrary to its position that the events of 30 September 2021 made no material contribution to, exacerbated or aggravated, her PTSD, the State alternatively submitted that there would need to be a very heavy discount on the heads of losses.
Counsel for Ms Music said that Dr Allnutt had acknowledged reading the Gough report and had indicated that his opinion had not changed.
He also said it was wrong to suggest that Ms Music did not receive treatment until she saw Ms Rose in mid-2022. The evidence indicated she had seen the general practitioner, Dr Benedicto in October 2021.
The debate between the parties was conducted upon what appeared to be an accepted premise that it was for Ms Music to prove that LSC Cashmere’s conduct in deploying the capsicum spray against her materially contributed to her injury. This was in accordance with common law principle: see Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [70].
In his closing address, Counsel for the State did not submit that LSC Cashmere’s conduct ‘didn’t cause any symptoms’. His point really appeared to be that, measured against other contributions to Ms Music’s PTSD, the contribution caused by the police officer’s conduct was not comparable (T 804).
In Tabet v Gett (2010) 240 CLR 537, Hayne and Bell JJ explained (at [66]) that:
“For the purposes of the law of negligence, ‘damage’ refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant’s negligence was a cause of that difference. The comparison invoked by reference to ‘difference’ is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.”
In other words, the test for material contribution is undemanding. There must, on the probabilities, be a detrimental difference. [25]
As to the level of proof, Kiefel J said (at [111]) in the same case that:
“All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”
As her Honour then explained (at [113]), once causation was proved, a plaintiff is entitled to recover the entire loss caused by a defendant’s conduct.
Whilst I accept that Ms Music was an unreliable historian in not insignificant respects, partly because of her paranoia, partly because of her jaundiced attitude towards police, and partly because of a sense of exaggeration, I remain satisfied on the probabilities that LSC Cashmere’s conduct did produce this detrimental difference and that her pre-existing PTSD was further disturbed or made more ‘chronic’ as a result of the spray being deployed against her.
This is so notwithstanding that I am also mindful that virtually from the point of 30 September 2021, Ms Music appeared bent upon bringing formal complaint, if not the institution of the lawsuit against the police officers. In particular, I am more cautious of some of the things she said to Ms Spatz, as they were proximate to the commencement of the hearing.
There is some force in the State’s reference to the timing for when Ms Music first saw Ms Rose – only shortly before a Local Court hearing, which concerned events that were extraneous to the subject incident and a time when she was likely to be anxious and aroused in any event.
Notwithstanding my reservations about Ms Music, it remains the case that, as trier of fact, I can accept some parts of her evidence whilst rejecting others. As to what Ms Music told Ms Rose, the latter was her counsellor, who Ms Music was seeing principally for therapeutic benefit, rather than for medico-legal purposes. It was more likely than not that what Ms Music told Ms Rose was an honest indication of her thoughts throughout.
Ms Music also saw Ms Wachala at a time more proximate to the subject incident (November 2021) and 6 months later. Similarly, she was seeking to obtain therapeutic benefit from Ms Wachala. On both occasions, reference made to the triggering effect of LSC Cashmere’s conduct.
Further, there is force in Ms Music’s submission that she had gotten by without having seen Ms Brown for a period of two a half years prior to the incident.
Contrary to the impression that might have been generated by the State’s argument, I did not discern sharp differences, or any fundamental incompatibility, between Dr Allnutt’s views and those of Peter Gough. Even if he may not have been apprised at the time of his report of some of the facts that were eventually put to him which revealed other stressors and causes of Ms Music’s presentation, or even Mr Gough’s report, I accept the genuineness and reasonableness of Dr Allnutt’s view that the contents of the latter’s report did not alter his opinion. I agree with Ms Music’s counsel that Dr Allnutt’s views were “moderate”. He did not discount other factors contributing to Ms Music’s condition. Further, even if Gough approached the assessment in a more ‘holistic’ fashion, with recourse to a broader base of facts concerning Ms Music’s history relative to Dr Allnutt, I did not understand Gough to opine, when he did in July 2022, that Ms Music’s condition of PTSD was so far gone that it could not be materially worsened; that what occurred on 30 September 2021 did not occasion any detrimental difference to that condition. As I noted in an exchange with the State’s Counsel, Mr Gough was not specifically directed to the effects of what occurred from that event.
Ms Music referred me, as a suggested comparable case, to the decision in Owlstara v New South Wales [2020] NSWCA 217 (“Owlstara”). The case featured the pointing of a firearm at a suspect. It did not occasion physical injury, but it did aggravate pre-existing PTSD referable to other traumas (including past domestic violence). The New South Wales Court of Appeal reduced the award of general damages. Ms Music submitted that allowance should be made under this head of loss to $60,000.
If, however, damages for the battery were assessed under the CL Act, Ms Music’s Counsel invited the Court to assess that the psychological injury was at 26 percent of a most extreme case, yielding the sum of $64,500.
The State submitted that small allowances would be made for compensatory damages for the battery (the physical effects of the spray) and false imprisonment claims.
As to the claim for psychological damage, on the predicate that she sought allowance for non-economic loss, if it was found that the events of 30 September 2021 materially aggravated her PTSD, given all of her background (including having PTSD from 2014 and the constant and baleful influence of her ex-partner), she would not surpass the threshold for such allowance.
As to the false imprisonment claim, Counsel for the State reiterated that the ‘imprisonment’ stopped at 6:19pm. If she was sprayed at about 5:43pm and detained very shortly thereafter, the period of detention was roughly in excess of just over half an hour.
Given my rejection of the claims of trespass to land and false imprisonment, and my findings that compensatory damages are subject to Part 2 of the CL Act the Court’s task is to assess non-economic loss in relation to the battery claim (which itself is directed to the deployment of the capsicum spray).
In Owls**tara, in the leading judgment of Meagher JA (Basten JA and Emmett JA agreeing), his Honour pointed out that at the level of quantification of compensatory damages for an assault, on the predicate fact that the wrongful conduct had aggravated PTSD, that it was ‘extremely uncertain’ what was the extent of the aggravation or what was the nature of the treatment that was likely to be required to address or manage the claimant’s condition referable to that aggravation (at [100]).
The same problem arises here. But the problem is heightened in this case for several reasons. First, Dr Allnutt was not asked to and could not quantify the extent of aggravation (and of course, Peter Gough had not considered the question either). Secondly, it regrettably remains the position that Ms Music cannot remove herself entirely from the continuing influence of her former partner. Necessarily, that is apt to induce symptoms of PTSD, anxiety and depression. There were indications in Ms Spatz’s reports this year about the continuing trauma-inducing effects of her former partner. This is a significant point of distinction to the case in Owlstara*.* Yet a further point of distinction is that to the extent that Ms Music has, in recent times, been triggered by police, much of that arises from not from what LSC Cashmere did on 30 September 2021, but from the circumstances of her fear of police – which was solidly ingrained well before that date – apparently reviving each and every time she comes into contact with police; such as when she visits her son in jail, or when other incidents occur involving her ex-partner which result in police interaction with her, such as that which occurred as recently as October 2025 this year. That interaction is practically unavoidable and I infer could conceivably trigger PTSD symptoms, but that should not, in my view, be attributable to what LSC Cashmere did on 30 September 2021: it was not suggested, for example, that LSC Cashmere himself had any subsequent association with Ms Music after that date. Further, I have formed the view that, whatever be the reason, that Ms Music has exaggerated in her own mind the contribution that police has played in adding to her trauma and mental health issues and that she has continually re-inforced that perception in the minds of counsellors who, when expressing their opinions, heavily relied upon what she informs them. A further point of distinction from that decision is that the Court of Appeal’s final award of $60,000 for compensatory damages was intended to capture three torts. The predicate for my assessment is a single tort.
In the face of this evidential uncertainty, there is force in the State’s submission that the vast preponderance of her PTSD, anxiety or depression, is properly attributable to her partner’s enduring influence such that the extent of the aggravation of her PTSD due to the conduct by police on 30 September 2021 is comparatively small.
Ms Music’s claims for aggravated and exemplary damages were, at least at the hearing, pitched entirely in the context of the use of the spray. There were no submissions that any false imprisonment, if that tort was established, should generate such allowances.
Ms Music’s Counsel correctly acknowledged that no aggravated or exemplary damages were recoverable if, as I have found, that damages for the battery were assessed under the CL Act. The following analysis is premised upon her case for damages being assessed in general law in the contingency that, insofar as the claim for damages for the battery – the use of the capsicum spray – is concerned, I am wrong in finding that the carve out in s 3B(1)(a) is not applicable.
The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant: State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549 at [230].
Aggravated damages are a form of general damages, resulting from the circumstances and manner of the wrongdoing: New South Wales v Ibbett (2006) 229 CLR 638 at [31].
In The Korean Times Pty Ltd & Anor v Un Doc Pak [2011] NSWCA 365 at [127] Nicholas J (with whom Beazley JA agreed) held:
“To attract an award of aggravated damages by reason of the conduct of a defendant, a plaintiff must show that such conduct was in some way unjustifiable, improper, or lacking in bona fides notwithstanding that the conduct may cause distress to the plaintiff (Triggell v Pheeney (1951) 82 CLR 497; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at p 497).”
Those observations were recently followed by Yehia J in Meredith v State of New South Wales (No. 5) [2025] NSWSC 1133 at [357].
Exemplary damages are punitive in nature, based upon proof of a conscious and contumelious disregard of another’s rights: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at [9]. Such award serves the dual purposes of punishment and deterrence (both specific and general): Lamb v Contogno (1987) 164 CLR 1 at 9-10. In XL Petroleum (NSW) Brennan J said (at 471):
“The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co, ‘to teach a wrong-doer that tort does not pay’.”
In her closing written outline of submissions, Ms Music sought a combined allowance for aggravated and exemplary damages in the sum of $50,000.
In his written outline of his closing address (MFI 15), Ms Music’s counsel stated (at paragraph 6(a)) a certain category of case when aggravated damages might be awarded. However, the written outline did not identify the facts in this case that were said to place the conduct in that category. During closing address, I invited (at T 728) Ms Music’s Counsel to state the matters his client relied upon to support the claim for aggravated damages. His response was to emphasise Ms Music’s embarrassment and humiliation.
In the same written outline, Ms Music cited two matters that were said to justify the award. The first was that the force used was more than reasonably necessary. The second was that the conduct of LSC Cashmere was in ‘direct conflict with the NSWPF training and guidelines’.
During his closing oral address, Ms Music’s Counsel acknowledged that what LSC Cashmere had done involved an error of judgment. That prompted an exchange with me (at T 726) in which I alluded to the recent judgment, in a sentencing appeal, being R v White [2025] NSWCCA 111 (“White”). I was mindful of what the Court of Criminal Appeal said about general deterrence at [93]–[95]. At [93], the Court emphasised that general deterrence has an ‘especially’ important role to play in cases of intentional wrongdoing, and instanced certain categories of ‘recurrent or pervasive social ill’. At [94], the Court then said:
“General deterrence will typically have a lesser role to play in a case such as the present where no pre-meditation was involved. Nor was it logically irrelevant, as the Director submitted, for the sentencing judge to note that the offending involved an error of judgement when considering the question of general deterrence. We do not live in a perfect world and errors of judgement, even ones as tragic and significant as that which occurred in the present case, regularly happen. The need for general deterrence in this context is dimensionally different from those areas of offending referred to in the previous paragraph. Where there is no pre-meditation or where an error of judgement is involved resulting in the commission of a criminal offence, the offender will not be one who might ‘otherwise be tempted by the prospect that only light punishment will be imposed’ …”
In response to my reference to this decision, Ms Music submitted that LSC Cashmere could be found to have done more than exercised a lapse of judgement. He acted ‘expediently’, trying to resolve the problems Ms Music posed for him (and other police officers) as quickly as possible whilst not seriously entertaining other options.
Ms Music’s Counsel later identified (at T 728) other matters he relied upon to sustain an allowance for exemplary damages. He cited a deviation from the Police Force’s own standard operating procedures and the circumstance that in acting as he did LSC Cashmere acted in a leadership role (as supervisor).
Though these observations in White were said in a different litigious context, in my respectful view, they have resonance in the context of the posited battery I am now considering. I have already noted that the sentencing consideration of general (and also specific) deterrence underscores awards of exemplary damages in civil claims.
It was not seriously suggested that the subjective limb in s 22 was missing when LSC Cashmere deployed the spray. That is, it was not suggested (or put to him) that he did not honestly believe it was necessary for him to deploy the spray. This was appropriate particularly having regard to the paucity of other options he confronted; none of which were compelling given the separate risks that they entailed. The ‘guidelines’ were just that: guidelines. Plainly, they could not be prescriptive or anticipate every incident police have to deal with. They were not rules and unsurprisingly, the proper application of them was highly contentious. The difficulty of the police’s task is augmented where, as here, they were dealing with a person who conveyed the appearance (at least) of being mentally disturbed. I have no doubt LSC Cashmere was trying to exercise his powers conscientiously; especially in circumstances where I have found, at the very least, that Ms Music was uncooperative. Moreover, I found that the objective limb in s 22 was also satisfied.
There was no pre-meditation. Now, whilst Ms Music’s response to this was that this was part of the problem – that LSC Cashmere had not taken the time to consider other options but had acted out of expediency – I find that LSC Cashmere’s sense of urgency was partly caused by the belief that unless he took prompt action to detain her when the opportunity arose, there was a possibility that she would fall out of the grasp of police again. In his mind, she presented no lesser risk of danger to herself than she did when he spoke with her at her home and probably appeared to present as even more at her risk given what he perceived as her irrationality in fleeing her own home and clambering to a neighbouring property. He did not act for the sake of expediency.
In the counterfactual that I am dealing with, which is predicated on a finding that it was unreasonable for him to think in this way, what follows is that he was left was, at most, an error in professional judgement about the force he was permitted to exercise pursuant to a lawful function. I would not have made any allowance for exemplary damages.
As to the claim of aggravated damages, LSC Cashmere exercised his power bona fides. I accept on balance, that she felt aggrieved, even embarrassed, but in my view these were matters that have already been addressed under ordinary compensatory damages (non-economic loss) and, in any case, there was nothing especially humiliating about the use of the spray beyond the circumstance that it was inflicted in front of other (male) police officers.
In the hearing, Ms Music indicated that she grew up relatively happy, with supporting parents. She left school in Year 10 and after a short stint at a tertiary college, spent most of her working life in the hospitality industry. For a period of about 8 years, she worked with Baulkham Hills Private Hospital and, from late 2017, she worked full-time at the Salvation Army as a front desk manager. She explained that her role was to help troubled children develop hospitality skills. She lost her job with the Salvation Army in May 2020 due to COVID-19.
Her taxable income up to and slightly beyond the events giving rise to this litigation, as indicated in notices of assessment (Exhibit X) was reported as follows:
FYE 30 June 2018: $44,557
FYE 30 June 2019: $79,711
FYE 30 June 2020: $86,132
FYE 30 June 2021: $26,622 [28]
FYE 30 June 2022: $15,108
She said she had had no workplace warnings about her performance.
Ms Music gave evidence of her attempts to work after the incident. Such work as she obtained was fleeting. She said she worked at a café in Seven Hills for about a week; she had worked as a cleaner in a store in Parramatta in 2022. For 5 weeks, she had worked as a cleaner and ‘maid’ in Parramatta. In 2023, she said she worked in the front of a café. She said she could not concentrate for long.
At the time she gave evidence, she said she was unemployed; however, she held out hope that she might be able to work with a catering company when it set it itself up at Homebush. She said she preferred, if she could, to work alone; ‘behind the scenes’. She indicated she was motivated to work.
Dr Allnut considered that Ms Music’s work capacity was undermined since the events on 30 September 2021.
Ms Music submitted that the Court should accept Dr Allnutt’s opinion. She referred to her previous employment with the Salvation Army. But Ms Music recognised some difficulty in quantifying her claim and citing the principles referred to by Heydon JA in New South Wales v Moss (2000) 54 NSWLR 536 at [87] urged that a buffer sum should be awarded for $30,000.
Ms Music’s Counsel did not cavil with the proposition that any award for damages concerning her economic capacity and care is or should be affected by the principle from DC v State of New South Wales [2016] NSWCA 198 per Ward JA (as her Honour then was) at [353]–[355] [29] in turn resulting from a discounting of the calculation of claimed loss of capacity to reflect her suffering from ‘non-tortious’ events not subject to her present claim.
The State submitted that she was unemployed as at that date. It argued that her employment history prior to the incident was ‘itinerant’. The psychologist Gough had noted her motive to return after COVID-19, but Ms Music had a fundamental problem impairing her capacity to work for which the State bore no responsibility: she was constantly ‘on the run’ from her ex-partner. Moving between the Central Coast and Sydney militated against her securing full-time employment.
At the time that she saw Dr Allnutt, the psychiatrist recorded that she had told him that she had taken an anti-depressant regularly and had consulted with two psychologists.
Dr Allnutt considered that Ms Music needed to see both a psychologist and a psychiatrist, with the former being more frequent than the latter. He estimated that the costs of a consulting a psychiatrist or psychologist was in the range of $225 to $350 per hour. The cost of anti-depressant medication would be between $30 to $60 per month (and up to $100 a month if adjunct medication was required).
Ms Music’s Counsel noted that much of Ms Music’s treatment had been paid for by Medicare. He submitted that the sum of $2,000 be awarded for treatment and out of pocket expenses.
The State referred to notes indicating that Ms Music had not availed herself of the opportunity presented to her to see a psychiatrist. Her counsellor, Ms Brown noted her refusal to follow up with a referral in her note of 9 August 2016. A note of Dr Relativo of 20 November 2017 referred to her omission to see a psychiatrist.
The State also submitted that it is not apparent that Ms Music had endeavoured to comply or adhere to the treatment plan which Peter Gough had proposed in the report Ms Music relied upon in the Local Court proceeding in 2022. I noted earlier Ms Music’s criticism or dislike with the content of the Gough report; however, that did not extend in terms to criticism of the treatment plan he devised for her.
Whilst I accept that Ms Music takes anti-depressant medication, it is not entirely clear that her depression has been caused by what occurred on 30 September 2021, as distinct from periodical flashbacks and even nightmares which she attributes to the events of that day.
In Dr Benedicto’s referral letter to Ms Spatz on 23 June 2025, it is noted that she is receiving a prescription for anxiety (Venlafixine – 75mg daily) and another one for hypertension.
Further, although there is force in the State’s reference to Ms Music’ erratic recourse to therapy, she has received assistance from Ms Spatz and I am prepared to find – consistently with Ms Spatz last report (18 July 2025) - that she will likely continue to engage in further sessions. I assume, in Ms Music’s favour, that some part of this would concern or try to alleviate the PTSD partly attributable to the deployment of the spray.
I therefore allow the sum of $2,000 claimed for this head of loss.
After her lease was terminated in October 2021, Ms Music referred to having had an unpleasant stay at Mission Australia, before living for a year at (Bidwill).
On 6 October 2021, about a week after the events of 30 September 2021, Ms Music was referred by Link2Home to DV West. Ms Mascha Bak, a domestic violence specialist worker, wrote a letter of 24 January 2023 (Exhibit V) recording Ms Music’s attempt to seeking suitable housing for herself and her dog after her tenancy ended. The purpose of the letter was to confirm DV West’s support for her.
But for the last few years, she has lived with her mother and father, who have supported her. It does not appear that this has been all that easy for Ms Music who herself has indicated that sometimes she and her mother have each rubbed each other up the wrong way. Regrettably, during the hearing of this matter in July, Ms Music’s father passed away. I expect that this will place added strain upon Ms Music’s mother.
Mr Settineri recalled that she had moved homes four or five times in the last 30 years. He was challenged on that evidence and, in particular, it was put that he had been informed of Ms Music’s movements by their son, Brandon.
Ms Music said that her habit was to shower twice a day up until the accident. In the period of two years after the incidents of 30 September 2021, she said she may not have showered at all. She indicated that she was now back in her usual habit.
She said that her mother cooks for her. She indicated that she had no great interest in cooking for herself if she had to: she was more interested in cooking meals for her dog. She was not much of a cleaner, and was not all that interested in her clothing appearance. She did do the vacuuming.
Ms Music’s counsel submitted that an allowance for commercial care should be made for $6,065, based upon allowing 30 minutes per week for a period of 5 years.
The State opposed any such allowance. It submitted that at some level, Ms Music had demonstrated a capacity to be able to look after herself (and her dog). As to her dog, given that it was to remain at the Central Coast property, it was likely that she would have to clean up after it if, as appeared, it remained in that property. The recent incident that occurred in October 2025 appears to have had its provenance in what the dog may have done, which had effectively set Mr Settineri off. She would have to clean the house (see the incident of 4 and 5 October 2025). There was no evidence that she needs someone to clean her house.
The difficulty, again, for Ms Music is that I am not persuaded that any need for commercial care she has can clearly be sheeted home to the events of 30 September 2021 as distinct from the accumulation of circumstances for the better part of twenty five years; associated with her dual tragedies of a violent partner and, very significantly, the circumstances of her son apparently emulating the example of his father.
| Non-economic loss | $12,000 | | Treatment | $2,000 | | Economic loss | $10,000 | | Total | $24,000 |
For the above reasons, the Court orders:
Judgment for the plaintiff for the sum of $24,000.
The defendant is to pay the plaintiff’s costs of the proceeding as agreed or assessed.
**********
This officer is presently of the rank of Senior Constable, however without any disrespect, I will refer to him with the rank he held at the material time.
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1), and also s 9B.
The State was given the opportunity to affirm the correctness of the chronology or augment it with supplementary entries but that did not occur.
A record suggests that the man’s name was Ian Dransfield: Exhibit Z.
As at 30 September 2021, he was Constable Casey and henceforth I propose to refer to him, without any intended disrespect, by his rank at the time.
I will also refer, without disrespect, to Senior Constable Alo by his rank as at 30 September 2021.
Ms Music’s evidence about this was admitted for the limited purpose of proof of her understanding (and not the truth of what she says she was told).
Citing approvingly Lindley v Rutter [1981] QB 128 at 134.
Benn v New South Wales [2016] NSWCA 314 (“Benn”) at [61].
Hannam v State of New South Wales (No. 9) [2022] NSWSC 648 (“Hannam”) at [154], [156]–[157].
State of New South Wales v McMaster (2015) 91 NSWLR 666 per Beazley P (in obiter, McColl JA and Meagher JA not deciding) at [233]; Pham v Commissioner of Victim Rights [2019] NSWSC 1060 per Leeming JA at [22]; followed also in Hannam at [156]
New South Wales v Tyszyk [2008] NSWCA 107 at [106]–[111].
Kershaw v R [2024] NSWCCA 27 per Leeming JA (Wright J and Wilson J agreeing) at [78].
This being s 462A of the Crimes Act 1958 (Vic).
Citing, at [115], Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 [18] (Tipping J).
(1936) 55 CLR 499.
Compare Queensland v Masson [2020] HCA 28; (2020) 381 ALR 560 per Nettle and Gordon JJ at [133].
State of New South Wales v Madden [2024] NSWCA 40, Bell CJ (Leeming JA and Stern JA agreeing) at [141]–[153].
This finding was not overturned on appeal: Optus Administration Pty Ltd v Wright bht Wright [2017] NSWCA 21 per Basten JA (Hoeben JA agreeing) at [31].
At [179], Simpson AJA said that until Dickson, there was “no authoritative determination of what is encompassed in the term “intent to cause injury” in s 3B(1)(a)”.
Dean v Phung [2012] NSWCA 223.
Dickson.
Ms Music objected to being recalled as witness, but that objection was overruled.
Peter Gough was not called. At the hearing, it was uncertain what pronoun the psychologist preferred. Having regard to the spelling of the first name and in the absence of any indication to the contrary, I will use the male pronoun and do so without any disrespect if I am wrong.
R Lawyers v Mr Daily [2025] HCA 41 at [42].
New South Wales v Ibbett (2006) 229 CLR 638 at [38].
State of New South Wales v Randall [2017] NSWCA 88 at [54].
This was the amended figure after the initial figure of $108,710.
State of NSW v Skinner [2022] NSWCA 9 per Basten JA (Brereton JA and McCallum JA agreeing) at [120]–[126].
Music
State of New South Wales [2025] NSWDC 487
(2011) 246 CLR 36
(2016) 95 NSWLR 117
(2020) 103 NSWLR 658
(1936) 55 CLR 499
(1987) 164 CLR 1
(1980) 43 FLR 112
(2006) 229 CLR 638
(2005) 65 NSWLR 168
(2017) 261 CLR 265
(2020) 381 ALR 560
(2015) 91 NSWLR 666
(2003) 57 NSWLR 496
(2012) 248 CLR 417
(2010) 240 CLR 537
(1951) 82 CLR 497
(1985) 155 CLR 448
(2000) 54 NSWLR 536
By her Counsel’s opening address, and again later in the closing address, Ms Music identified the key (liability) issues as being:
whether the police officers had lawful justification to use the force that it did against her under s 22 of the MH Act; and
whether such force as was exerted against her was reasonable, and not excessive.
The State contends that independently of the requirements of the MH Act, the police officers otherwise had lawful justification for their conduct, including their entry into the plaintiff’s premises and the use of force against her, under various provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPR Act).
As Counsel for the plaintiff emphasised in his opening address, the intentional torts Ms Music invokes do not require proof of actionable damage. Nevertheless, she contends that she has suffered personal injury and claims damages for personal injury.
She further contends that because these were ‘intentional torts’, her action for damages for personal injury is to be determined under the common law and not modified by the provisions under Part 2 of the Civil Liability Act 2002 (NSW) (‘the CL Act’). As to this contention, the State contends that by s 3B(1)(a) of the CL Act, Ms Music is unable to establish the dual requirements of an intention to commit the tort and an intention to cause Ms Music injury, so it contends the assessment of personal injury damages should be carried out with reference to the provisions of that legislation.
I note that the hearing of this proceeding was unfortunately fragmented. In particular, the hearing (which had originally been given a five-day estimate) had to be adjourned on the fourth day at a time when Ms Music’s evidence was incomplete due to a personal issue concerning her and thereafter, there was a further period when I was on leave, before the hearing resumed this month.
Because of the troubles that Mr Settineri and Brandon had with the law, it was unsurprising that, through no fault of her own, Ms Music herself came into regular contact with police officers. Those experiences, on the whole, caused her to take a jaundiced view of police officers; and male police officers in particular.
But what was worse was the toll that dealing with these two men took on Ms Music’s life. The State relied upon two incidents in particular, as they were recorded in separate Computerised Operational Policing System (‘COPS’) entries. Both incidents were particularly notable as they manifested suicidal ideation or threats to kill herself. Both incidents resulted in Ms Music’s scheduling under MH Act. A brief summary of each incident (taken from the COPS entries) is as follows:
30 May 2018 (Exhibit 1): it appeared that Ms Music had been fired from work. She returned home and started to drink. A few hours later she walked to the Blacktown Inn, consumed more drinks and played the poker machine. Co-incidentally, Brandon had agreed to meet up with friends, but he saw Ms Music stumbling in the car park. He heard her say “I’m going to jump in front of a car and kill myself”. She approached the main road before Brandon grabbed her. Mr Settineri arrived not long thereafter to help Ms Music home and a short time later police arrived. Brandon was concerned that Ms Music had overdosed on her medication for high blood pressure. Whilst police was present, Ms Music was heard to say “After the Ambos check me out I will kill myself and you will never see me again”. Ms Music was conveyed by ambulance to the Blacktown Hospital with police assistance. A file note produced by NSW Ambulance of 30 May 2018 indicated Ms Music’s admission to paramedics of a suicide attempt.
19–20 January 2019 (Exhibit 2): On 19 January 2019, there was a domestic incident involving Ms Music and Brandon (as to which see also below the commentary on Exhibit 6). Brandon was effectively placed under house arrest and it is inferred that the Court’s order was that he stay at his mother’s place. Ms Music considered that she was directed to leave her own home. This, as it transpired, left a bitter taste in Ms Music, who resented having to stay somewhere else overnight, as she did with her own father. Ms Music returned to her home on 20 January to discover some of her possessions had been stolen. She called police. She explained that she was intending to complain how she had been kept out of her own home. But materially, the COPS entry records that she told police that she was “going to kill myself”. On this occasion, and in conspicuous contrast to what eventually occurred on 30 September 2021, Ms Music spoke to police from behind the closed door. She was reported to have said “other people kill themselves, so I am going to kill myself”. A short time later, and in close comparison to what occurred on 30 September 2021, she jumped over a neighbour’s back fence (without any indication to police) – police only found out about this from a neighbour (who was anonymous) who said that Ms Music was hiding. An ambulance later arrived. Ms Music told the ambulance that she did not want to kill herself but only said what she said “in the heat of the moment”.
As to the latter of these incidents, Exhibit 6 indicates that Brandon had actually threatened to kill himself if Ms Music ‘kicked’ him out of the home. Ms Music understood that Brandon was on ‘house arrest’. Police did not actually exclude her from her home. She decided to leave the home and did not return (until the next day).
There were other incidents featuring Ms Music’s interactions with police that the State relied upon, apparently, for a different purpose: namely, to illustrate Ms Music’s unwillingness to be fully forthcoming or cooperative towards police even in the face of domestic violence issues with Mr Settineri and Brandon; and even as it appeared (from the State’s perspective) that police were only trying to protect her. These incidents were evidenced as COPS entries. This also served the purpose of establishing, in effect, Ms Music was prone to blame police for failing to help her yet did not take steps police required of her in order to help herself. The proposition ultimately put to her by the State was that she feared doing anything that would get either man into trouble with police. These incidents may be summarised from the COPS entries as follows:
10 July 2018 (Exhibit 3): Ms Music contacted 000. Mr Settineri had had an argument with Brandon about the latter wanting to ride a bike on a public road whilst intoxicated. Mr Settineri tried to prevent him from removing the bike from the house. Brandon stabbed Mr Settineri on the latter’s hand with a knife and attempted to stab him on the upper part of his body. Ms Music also told police that she had received a report about the windscreen to her car was smashed. Whilst acknowledging her concern about her son’s drug use and irrational behaviour, Ms Music refused to provide a police statement.
1 September 2018 (Exhibit 4): this was an occasion when Ms Music called 000 before terminating the call seconds later. Police attended her home and heard voices inside. Police rang Ms Music’s phone multiple times, but she did not answer. Over a month later, on 7 October 2018, Ms Music rang police and told them that she was fine and had not required police assistance and explained that she had only had a verbal argument with Brandon. In her evidence, Ms Music explained that Brandon had taken Ms Music’s car. Sensing that Ms Music might report him to police, Brandon called his mother a dog. Ms Music did not provide a police statement.
11 November 2018 (Exhibit 5): a niece of Ms Music called police (apparently being put up to this by Ms Music). Mr Settineri had reportedly been smashing furniture and had damaged a bathroom window. But when police arrived, no one was there. Ms Music thereafter arrived but walked past police without saying anything. Police attempted to contact her several times. Later she walked away from police to get into her car. Police were left uncertain as to what had occurred. The next day, 12 November, Ms Music contacted police and was described in the COPS entry as being abusive towards them. She was invited to provide a police statement but refused. The entry ended with the notation that since Ms Music was considered unfavourable and refused to assist police, no action could be taken. In Court, Ms Music explained that she was scared of the consequences of Mr Settineri finding out.
In April 2022, police had obtained a warrant to attend Ms Music’s home. This was to do with allegations made by a girlfriend of Brandon, of sexual assault and drugging her. Police had asked her for her phone, but she threw it on the floor. Ms Music was arrested and taken to Mount Druitt police station after being suspected of trying to conceal or destroy evidence.
Ms Music alluded to the incidents in November 2018, January 2020 and April 2022, in conjunction with her reference to the events of 30 September 2021, when she spoke to her counsellor, Naomi Rose, for the first time on 26 July 2022.
In re-examination, he elaborated that his concerns for Ms Music’s health were that she was going to immediately harm herself, a belief based upon the circumstances that communication with her was lost, the barricading of the front door, uncertainty as to what was going to happen next and a concern as to what would happen next if police walked away. He also believed there was a risk to life and property and was conscious of a duty of care police had for all persons. He also referred to the content of the threat to kill which was evident in the CAD system (Exhibit Z).
Constable Casey accepted that LSC Cashmere was (in the relevant context) his ‘commanding officer’. Constable Casey disagreed with the proposition that he had formed no independent view himself about having had a basis to detain Ms Music under s 22, but was rather executing LSC Cashmere’s instruction. His preliminary view was that this action might be taken. He said that it was a collective decision reached between himself, LSC Cashmere and Constable Alo. But he accepted that the BWC footage (Exhibit B) suggested that LSC Cashmere was giving instructions. Having been shown this, Constable Casey said that he and Constable Alo took guidance from LSC Cashmere, whilst emphasising that the latter was not issuing an instruction.
Constable Casey’s recollections of what was said in what I will refer to as the short conference with LSC Cashmere, under cross-examination, fluctuated. His first answer in response to the question of his recall of what LSC Cashmere had asked of him and Constable Alo was LSC Cashmere asking: “Do you believe (there are) sufficient grounds to schedule (Ms Music) under the Mental Health Act?” He recalled that he and Constable Alo individually both said “yes”. This was why he thought that the decision to detain Ms Music was collective. But later he accepted that LSC Cashmere had (more positively) asserted that “She’s to be detained under section 22” and “We have a basis to force entry if she doesn’t come to the door”. However, Constable Casey returned to something like his original formulation: LSC Cashmere asked him and Constable Alo a question: “Do we have sufficient grounds on the Mental Health Act” and he (and Constable Alo) expressed their individual views. Then ultimately, he accepted that LSC Cashmere gave an “instruction” to him to detain Ms Music under s 22.
He eventually accepted the propositions put to him that: (a) LSC Cashmere said ‘she needs to be detained’; (b) LSC Cashmere said ‘if she doesn’t come to the door, we have a basis to force entry’; and (c) LSC Cashmere gave an instruction to detain her.
Constable Casey agreed that the idea, or more accurately option, of forcing entry (if Ms Music continued to refrain from coming to the door) was raised by LSC Cashmere. It had not been suggested by Constable Casey.
Thereafter Constable Casey said he recalled that LSC Cashmere approached the door. He activated his body-worn camera. He recalled LSC Cashmere making a further plea to the occupants that Ms Music come to the door. Constable Casey believed that he was talking only to the man, but not the woman. LSC Cashmere said (to the man) that the officers needed the woman to present herself to the front of the door (this did not actually require police to see her). LSC Cashmere was only a metre away from the front door. The door was not opened. LSC Cashmere gave a final warning. There was no response. Constable Casey saw LSC Cashmere pull the grille. He broke the fly screen. Constable Alo attempted to kick in the door, unsuccessfully.
Constable Casey said his belief about forced entry was based on s 22 of the MH Act. He did not consider it justified by Ms Music committing a breach of the peace or that she presented as being at an imminent risk of significant injury.
Constable Alo disagreed with the proposition that LSC Cashmere ‘instructed’ him to apprehend Ms Music under s 22 of the MH Act. He also disagreed with the proposition that LSC Cashmere instructed him to force entry into the home if Ms Music did not comply with the request that she come to the door. As to his beliefs about their entitlement to force entry, Constable Alo accepted that he was not concerned about a breach of the peace. He rejected the proposition, however, that the ground under s 9 of the LEPR Act did not concern him either.
Constable Alo recalled LSC Cashmere speaking to the male occupant in the home. He was concerned that, at this point, they could not hear Ms Music herself. He recalled that the decision was taken that they would be prepared to go into the house.
Before that occurred, however, LSC Cashmere spoke to the male occupant and asked to speak to Ms Music. Constable Alo indicated that he thought he heard that things being moved around the house. But there was no sound could be heard from Ms Music. The decision was then taken to go inside. He tried to kick the door.
Constable Alo then gave an account of what occurred when he entered into the premises.
After he arrived at the scene (around 4:43pm) he got out, met Constables Alo and Casey, standing 10m away from Ms Music’s property. LSC Cashmere accepted that it was important for him to form his own assessment as to how to proceed, but the other part of his role was to support Constables Casey and Alo.
He had a conversation with them. They explained the job, and the information that they had received to that point. This included trying to speak with Ms Music though a window after they tried to get her to come to the door; being told by Ms Music to ‘fuck off’; and also that there was also a male occupant in the unit. She was reported as having appeared at a window, but they had not seen her since then. They tried to explain that they wanted to take her to hospital and that it was not a matter of her being in trouble. LSC Cashmere accepted that he told Constables Casey and Alo that he was satisfied there was a basis to exercise the s 22 power and told them that she would need to come to the door or (if she did not comply) police would need to force entry into the home.
It was put to LSC Cashmere that he had made the decision and issued a direction regarding the invocation of s 22. LSC Cashmere accepted he made a decision, but said he could not direct someone to exercise their powers. He had formulated an opinion, in which Constables Casey and Alo concurred. In answer to a question I raised of him, LSC Cashmere adopted the characterisation of there being a ‘consensus’. Indeed he said he asked them what their opinions were first. He said that if he agreed with what was proposed, they would all proceed. On the (counterfactual) basis that they did not agree, there would need to be a further discussion. LSC Cashmere accepted however that in the (hypothetical) event that he wholeheartedly thought that they were entering the premises illegally, he would have to try to stop them.
It was also put to LSC Cashmere that he had not heard or seen Ms Music before he formed his view that the s 22 power should be exercised. LSC Cashmere disagreed with the proposition: although he accepted that he did not actually see her, he believed that he had heard her as the conversation he was having with Constables Casey and Alo was coming to an end.
Whilst he was present, Constable Casey approached the door again (he was 5m behind). LSC Cashmere could not recall whether he asked him to do so or because Constable Casey went ‘by his own cause’. At any rate, he described Constable Casey as speaking in a very gentle tone. He thought Constable Casey expressed his concern to Ms Music that she might hurt or kill herself and also thought that she had presented in an agitated way. (LSC Cashmere remarked that it was not uncommon that a comment of the kind reportedly made by Ms Music was made, and that police might wish to speak with her in the light of it.) LSC Cashmere heard Constable Casey speaking to her. LSC Cashmere acknowledged hearing Constable Casey inform the occupants that Ms Music probably might need to be taken to the hospital and, further, that the officers were satisfied under s 22 of the MH Act that Ms Music needed to come. He also recalled Casey mentioning that police might have to force entry if she did not come to the door and comply. He said he heard Ms Music making a comment about the door being barricaded and in response to the suggestion that the male might open the door himself, the male said it was not his house. LSC Cashmere thought that the communications that Constable Casey engaged in, in his presence, were ineffective.
LSC Cashmere decided to take a different tack: to communicate more forcefully. He decided to foreshadow what would happen if they did not comply. He felt he needed to ‘step up’, as supervisor to the two police constables. He explained that seconds before he started speaking, he had heard Ms Music’s voice. He recalled introducing himself by name (as another officer, but one that was more senior than Constable Casey), said he expressed concern for Ms Music’s welfare, but warned her that if she did not come and speak with the police, police would force entry and break the door open. The door was not opened. He said he heard Ms Music’s voice and hearing her say that she was not opening the door, that she said “fuck off” and that he did not hear her again from that point.
LSC Cashmere said that he only learnt that the door was barricaded after he had concluded his conversation with Constables Alo and Casey, at about the time the three of them approached the front door again, and more precisely, around the point where Alo tried to kick the door in.
LSC Cashmere said that he had decided that the situation had reached the threshold under s 22 of the MH Act to apprehend her. He reasoned that Ms Music would not speak, he had no confidence that she would not hurt or kill herself, said he had regard to the manner in which she had spoken to Constables Casey and Alo, and his own hearing of her ranting (about what police had done to her, about ‘locking up’ her son). To him, she sounded emotional and worked-up.
He started to move the frame of the screen door and explained how he and the officers used force to enter into the premises. The manner in which that was done will be considered further in the section on damages issues.
LSC Cashmere accepted that he did not attempt to contact a duty officer or PACER clinician. He was shown an extract from a NSW police handbook (Exhibit AA) about dealing with persons with mental illness in the least restrictive way. It was not, however, put to LSC Cashmere that when deciding to force entry, he infringed that stated aspiration.
LSC Cashmere accepted the proposition that he did not think that there was any breach of the peace. But in addition to s 22, he also believed that forced entry could be justified by any emergency power (under s 9 of the LEPR Act), even though no mention of this power was made by Constable Casey or himself to Ms Music.
In an important passage of his evidence in chief (T 585-586), LSC Cashmere explained why he deployed the spray:
He said he approached Ms Music, 2 metres away, in line with the other unidentified officer. The first spray fell on her chest. It hit her low on the chest. He said that it did not hit her in the face. This was evident to him since in his experience, spray to the face caused almost immediate pain and a person’s hands go to their face; mucus and snot may be detected. Ms Music’s behaviour had not changed. LSC Cashmere explained that unless the spray got on a person’s face it “does almost nothing”.
He administered a second spray. It was put to LSC Cashmere that he did not wait two or three seconds to ascertain whether the first spray had the desired effect before administering the second spray (contrary to what was suggested in a manual, being Exhibit AC, to which further reference will be made below), but LSC Cashmere said that was unnecessary. The second spray one went on to her face. Ms Music immediately changed, her hands went to her face, and she turned or bent her waist. She sat down on her knees and laid down, against the back fence, before sitting down on her knees and thereafter laying down against the back fence. She screamed “why the fuck did you do this to me”. She then sat back up. She was sufficiently incapacitated to enable him to restrain her. The reason for the spray was to “stop us having to throw her on the ground and have a wrestle with her”.
LSC Cashmere said that he stopped Constable Alo from approaching Ms Music to restrain her until a few seconds when the second spray had taken effect.
Under cross-examination, LSC Cashmere was shown parts of an ‘Oleoresin capsicum defensive spray manual’ (Exhibit AC). In the introduction to the manual (p 6), it is stated that:
Under cross-examination, LSC Cashmere was referred to the part of the BWC footage (Exhibit B) indicating the immediate aftermath to Ms Music being sprayed. She was in the gardening bed. There were fences behind and to her side. LSC Cashmere said he thought the back fence was about 1.75m. He identified a tree in front of the back fence. He was asked whether he was intending to suggest she might use that tree to climb over the fence. LSC Cashmere said he thought she could climb the offence independently. Asked whether he thought it was no easy feat for her to climb over the fence, LSC Cashmere said he thought it was possible for her to do so: she had previously climbed over fences. He accepted that there was no doubt that if she attempted to climb the fence, either they could stop her in the process or readily could have apprehended her.
LSC Cashmere was shown footage at about 5:44pm, when Ms Music’s hands were handcuffed, behind her back. LSC Cashmere acknowledged that she had asked why she had been sprayed. He was referred to his answer that he was not interested in getting punched or spat on. He acknowledged that she said she did not spit on police. He was referred to his response that she had ‘shaped up’. It was suggested that by that expression, it might mean that Ms Music had adopted a fighting stance. LSC Cashmere accepted that this was a possibility but disagreed with the proposition that Ms Music had not taken a fighting stance. It was put to LSC Cashmere that Ms Music had not threatened police. LSC Cashmere accepted that she had not ‘explicitly’ issued any verbal threat but said that telling police to ‘fuck off’ was an implied threat: an ‘implication of resistance’.
LSC Cashmere was shown an extract from the NSW Police Force Handbook (Exhibit AA) dealing with the transportation of mentally ill people and, specifically, the desirability that transportation of such people should “not be dependent upon expediency”. Elsewhere in Exhibit AA was the following statement:
Her evidence tended further to show a fixity of thought which was unwilling to countenance the possibility that some evidence she had given (all of which was adverse to the police) was wrong. An example of this was her testimony as to her understanding as to why her tenancy came to an end when it did. This was a minor matter in the scheme of things. Ms Music said she believed, on the basis of what someone else (apparently the landlord’s agent) told her, that the landlord had got wind of the events on that day and that this was the reason why her tenancy was terminated [7] . But the objective evidence indicated that the landlord served a termination notice to bring about the end of the tenancy in accordance with the term of the lease, and that further, she told hospital staff on the night she was admitted on 30 September 2021 that she was soon to be ending the tenancy even before she could have spoken to the person she had referred to. A further example of her struggle to fit her narrative to the facts was her unwillingness to accept that she had received psychiatric referrals well before 30 September 2021, when documents showed that she clearly had. Yet another example was her enduring belief that whilst restrained in an ambulance, a police officer bounced up and down on her stomach, when there was nothing in the BWC camera footage to sustain such belief. She not only persevered in such belief, but had conveyed it to others, including not only Mr Settineri, but also her counsellor, Ms Rose (see, for example, Ms Rose’s treatment note of 26 July 2022, at Exhibit Q, p 1), and her forensic psychiatrist, Dr Allnutt (p 3 of his report). In addition she falsely claimed that police officers had kicked her when she was on the ground after the capsicum spray had been used, and pushed her as she was going up the driveway to the ambulance.
Associated with this was an exaggeratedly positive perception that Ms Music had about her sense of mental wellbeing prior to the events of 30 September 2021, including statements along the lines that she had no nightmares, flashbacks or panic attacks in the two-month period leading up to that date nor seen any psychologist since 2017; as if to diminish the ongoing effects of the traumatic episodes that had plagued her prior to 30 September 2021. She downplayed the ongoing difficulties she had with Mr Settineri and Brandon after 30 September 2021; including statements of non-recollection as to whether there had been other episodes of domestic violence with Mr Settineri since that date (when it was proven that he had kidnapped her in a car over many hours, she thought, in 2022) and whether Brandon had done anything further to cause her to reach out to police. Whether or not this downplaying of her state of mental health prior to or after the events giving rise to this litigation was partly a coping mechanism or partly a forensic design to try to elevate the significance of what occurred on 30 September 2021, or both, does not need to be decided; although at many instances throughout the latter part of her cross-examination, she readily resorted to statements of non-recollection when I sensed the real position was that she did not want to answer the questions that were raised of her. The point, at any rate, is that her expressed distorted view of the effects of domestic abuse and violence upon her mental health indicated a lack of insight and further sapped her credibility.
On the whole, I do not go so far as to generally conclude that Ms Music was a dishonest witness or told lies. Rather, I had significant reservations about Ms Music’s reliability. This is of obvious significance not only when considering the factual questions of what occurred on 30 September 2021, but also is relevant to her reliability as a correspondent and, in particular, the information she supplied, for example, to Dr Allnutt, and the various counsellors and psychologists she saw; especially after the events of 30 September 2021. In this way, it is material to aspects of her claim for damages.
More generally, I accept the State’s submission that there was no inkling that any of the police officers collaborated in the giving of their evidence.
Counsel for the State submitted, in effect, that Ms Music’s argument that an irrevocable decision to exercise the function had been taken only during the ‘scrum’ that each of the officers had, and that they were bent upon exercising that function irrespective of what else might happen, was artificial. The states of mind of the officers fell to be assessed at the point when the function was about to be and is being exercised. In this case, that included the conversations that Constable Casey, and then LSC Cashmere had after the ‘scrum’ or conference that occurred upon LSC Cashmere’s arrival. It should be found that it was likely that Ms Music heard what they said, and the contrasting gentle tone of Constable Casey set against the authoritarian tone of LSC Cashmere. Had she complied or cooperated, there would have been no need for forced entry into the home.
The State also submitted that there was no material difference whether the lawfulness of the forced entry was sourced in s 22 of the MH Act or s 9 of the LEPR Act. Either power provided a relevant source. Further, it was unnecessary for any of the officers to articulate all grounds for the power if one or more were available. Thus, if (contrary to what the State submitted) they articulated s 22 as the source of power erroneously, but if, as a matter of law, s 9 of the LEPR Act was available (if not articulated), the entry into the home remained lawful [13] .
Contrary to Ms Music’s submission, the determination of the reasonableness of each officer’s belief was to be considered at the point of entry into the home. I find that after LSC Cashmere arrived, and after the three officers conferred among themselves in their ‘scrum’, Constable Casey and, later, LSC Cashmere each spoke to Ms Music who was on the other side of the front door at around 4:46pm. In other words, she had not left her home by that stage. It is fair to say that Constable Casey adopted a pleasant and placid approach, explaining to Ms Music why he was there and what course of action was proposed. It is also fair to say that LSC Cashmere adopted a sterner approach. But neither approach placated Ms Music. It is unclear as to precisely when Ms Music fled her home, however, the loss of communication with her would reasonably have heightened the anxiety of the police officers even further.
I therefore find that both of the matters in s 22 were established.
In my view, s 9(1)(a) of the LEPR Act presented an independent source of power to enter into the premises for the same reasons. Almost inevitably, the conclusion follows that entry was sanctioned also by s 10 of the LEPR Act. This was so even if, by then, Ms Music had actually left her home to flee the officers. That she had engaged with police for a not insignificant period gave them reasonable grounds for believing that she had remained in her home even if she had actually left. I accept the State’s position about its ability to rely upon this power, even if it was not articulated, if in the circumstances it was justified.
The claim for trespass to land fails.
As to the inadequate base of information, there was a very short (as in 3 seconds) period between LSC Cashmere exiting the back door on the deck and reaching for his spray. He had an insufficient base of information to consider whether there was an actual or potentially violent confrontation. All he knew was that Ms Music appeared emotionally agitated, that she had previously been scheduled; he had received reports of her lack of cooperation and emotional state from Constables Alo and Casey; he saw for himself that Ms Music refused to open her front door and yelled and swore at police behind it; that for an indeterminate period, she had decamped and hidden from police. Although he said he spoke to Ms Music, he had no face to face interaction. Counsel for Ms Music submitted, in effect, that LSC Cashmere acted prematurely.
Ms Music submitted that the circumstance that there was an inadequate base of information to decide whether to deploy the spray, when combined with the circumstance that she presented no risk of harm to police or to herself meant that, objectively, there remained the possibility that Ms Music might calm down. In other words, the point had not been reached where he could have concluded that further attempts to communicate would be futile in encouraging her to drop her resistance and allow herself to be taken to a mental health facility. LSC Cashmere had no proper reason to think that she was not amenable to reason, if more time was given. She was surrounded by multiple male (and presumably armed) police officers if she sought to escape the premises. There was no factor pointing to any urgency. LSC Cashmere acted contrary to the essence of the guidance in the manuals that he try his best to ‘de-escalate’ the situation. The Court was invited to find that LSC Cashmere undertook no real assessment of the risk that she was or could become violent. In short, out of an unjustified sense of panic, anxiety or expediency, or perhaps of these, to solve the problem that Ms Music presented to police that afternoon, LSC Cashmere’s use of the spray became an option of first resort – not last resort; contrary to desirable police practice (Exhibit AA, which refers to ‘Least restrictive actions’).
LSC Cashmere did not place himself in the ‘concealed’ position referred to in the manual or warn Ms Music that unless she complied with such directions as the police might give her (including getting on the ground) that the spray might be used. He did not warn her that a spray which he well knew would cause pain to her would be deployed. He thus deprived Ms Music of the opportunity to adjust her behaviour, and cause her to comply with further directions lest she be exposed to the spray.
Further, it was impracticable or inappropriate to allow Ms Music to climb over the fence. This, I infer, was a pre-emptive answer to the argument that police should have waited, rather than restrain her, with the unstated premise being that Ms Music might have used the waiting period allowed for her to try to elude or escape by climbing the fence. What was on the other side of the fence was not known. Pulling her down would give rise to the same problems as tackling or grabbing her, but with the additional problem that there were garden pots and other hard objects against which she, or another or other police officers might collide. That generated an additional risk of physical injury.
The State took issue with Ms Music’s reliance upon extracts from the Police Force Handbook (Exhibits AA and AB) and the capsicum spray manual (Exhibit AC). When considering the ‘least restrictive’ way to deal with Ms Music, it was to be recalled that she presented as yelling and screaming, matters which Ms Music herself acknowledged were threatening in nature. Further, the perspective of the notional reasonable police officer was to be partly shaped by the knowledge and information LSC Cashmere possessed from the moment he received his call from Constable Alo; and not just from the point when LSC Cashmere learnt that she was standing in a neighbouring backyard.
The option of the capsicum spray was the least intrusive measure. Counsel for the State drew my attention in the manual (Ex AC) indicating the qualities of the o/c spray compared to other sprays. The risk of harming her exponentially increased if LSC Cashmere had tasered her. With reference to the circle that appeared on p 11 of the manual, Counsel for the State sought to demonstrate how LSC Cashmere accorded with the suggested steps and properly weighed the options available to him. In particular, it was suggested that the o/c spray mitigated the risk of injury to Ms Music more than a ‘hands on’ option. There had been communication ‘ad nauseum’, if (as should occur) the actual or attempted communications with Ms Music at her home by police officers was also to be considered.
The State maintained the defence of self-defence. It submitted that I should accept LSC Cashmere’s evidence that she had ‘shaped’ up to police in the backyard; which meant that she was standing square and in a position from which she might launch a violent attack. She had not responded to at least two directions from police to get to the ground.
As to the argument about battery by handcuffing Ms Music after the use of the spray and manhandling her all the way to the ambulance, the State argued that Ms Music was plainly incoherent and distressed. It would be naïve for the officers not to handcuff her given that they intended to escort her through the home.
I accept police manuals are guidelines, often aspirational or general and are not otherwise intended to be prescriptive in their purported application. Nevertheless, they have some not insignificant evidentiary significance. Such guidelines instituted by organisations, especially those like the police force or military where tasks often involve the deployment of potentially lethal force, are usually the product of significant input at different stages of the hierarchy and represent something of a proxy for how reasonable police officers will expect officers to act, subject of course to the exigencies. They distil practical wisdom from experience and not insignificantly, they instil common sense.
The requirement of reasonable necessity is also important. As was said in a not altogether dissimilar context, [14] proportionate action (force to effect an arrest) means that “a sledgehammer should not be used to crack a nut”: Gebrehiwot v Victoria [2020] VSCA 315. [15]
I accept that respect should be accorded to the arresting officer’s experience and use of common sense; and recognition that the environment in which they work is fraught: that they are called to act in the ‘agony of the moment’.
All that I have said so far indicates a certain level of latitude, even deference, is to be given to an experienced police officer working in the heat of the moment and forced to engage in split second decision-making with potentially significant consequences. Nevertheless, the objective requirement exists as a check on distorted decision-making by the arresting officer in the interests of safeguarding the crucial value of protecting a citizen’s liberty. I did not understand it to be controversial that the objective requirement, in practice, means that the trier of fact deploys the construction of whether the notionally reasonable arresting police officer would regard the force used as being reasonable and the force to restrain a person as reasonably necessary.
Decision-making may be distorted for a variety of reasons, including, for example, the not altogether dissimilar House v The King [16] grounds for interference with judicial decisions, but it may also occur because the arresting officer gets it wrong on the facts. That might be because facts that are objectively apparent to the notional reasonable arresting police officer are not apparent to the arresting officer. It might also be because factual inquiries that the notional reasonable arresting officer would have made were not made by the arresting officer.
Whilst I accept much of the State’s submissions on the appropriate approach, I do not agree that the notional reasonable arresting officer is simply affixed with the arresting officer’s actual perceptions. Further, and again contrary to the State’s submission, in my view a Court required to adjudicate whether the force deployed by an arresting officer is reasonable may be assisted in ascertaining how the facts could reasonably have been perceived by a notional reasonable police officer; and indeed may even be decisively influenced [17] by the views or opinions of other officers, but ultimately, the Court’s assessment is not dictated by the views of other officers. In this case, the State did not, however, rely upon expert opinion evidence as to what a reasonable arresting police officer in circumstances that actually or should have been known to LSC Cashmere would have done.
I also accept that ordinarily, contemporaneous BWC footage that presents a reliable audio and visual depiction of events is likely to be more reliable than testimonial recollections expressed years after the event when the stakes for the persons concerned, including their rights or interests are in issue. Unfortunately, the quality of the BWC footage of LSC Cashmere was far from perfect. There was no audio sound and at important stages, Constable Johnson obscured footage of what LSC Cashmere was doing. It was still of significance in showing what occurred and how quickly things occurred.
Allowing for all of these matters, and reiterating my view that self-defence was not available as a justification for use of the spray, I am not persuaded that it was reasonable for LSC Cashmere to administer the spray in order to achieve his purpose of taking her to a mental health facility in the circumstances that he did.
Without the justification of self-defence, LSC Cashmere accepted that the only justification for the use of the spray was to avoid a violent confrontation with Ms Music that was occurring or was likely to occur (T 618).
Having regard, however, to the BWC footage of Constable Alo, in my opinion a reasonable arresting police officer in LSC Cashmere’s position could not have formed that justification in the circumstances faced by LSC Cashmere. I find that LSC Cashmere had decided that he would administer the spray as he descended down the steps from the balcony. The footage showed he was then reaching for the spray.
The circumstance that Ms Music had not complied with his direction (and/or that of another officer) to ‘get to the ground’ would not, of itself, have conveyed to a reasonable arresting officer that she was engaging, or was likely to engage, in a violent confrontation.
A fundamental difficulty for the State’s case is that I do not accept LSC Cashmere’s evidence that he went through in its entirety the thought processes he described at length in his evidence. The BWC footage powerfully suggests that he could not have had the time to go through the process. The better view is that just as he was about to step into the backyard, as he descended the stairs from the deck, he had resolved to physically restrain her whilst the opportunity presented itself to do so as quickly as possible, and he thought that the immediate use of the spray was the most appropriate way to do that.
First, as touched upon when I addressed self-defence, Ms Music did not carry any weapon. To the extent that LSC Cashmere was concerned that she had secreted some implement on her person, he took no step to verify such concern, for example, by directing Ms Music to put her hands in the air and allow herself to be searched. This, in turn, leads me to doubt whether he was actually concerned about that particular matter. Even recognising his experience, LSC Cashmere’s perception that she had ‘shaped’ was ambiguous as to what it might foretell. According to him, she had left her hands open in front of her chest: her fists were not clenched.
Associated with this point is that the State did not call other witnesses to prove that Ms Music had appeared to be acting aggressively or in a way that likely presaged violence. This was part of the explanation LSC Cashmere gave Ms Music after he sprayed her. Although I accept that a Jones v Dunkel inference should not be drawn as to how other officers would have acted, it can, in my view, be drawn on the more limited basis of how they perceived Ms Music to be behaving. This did not need to be an exercise in accumulating evidence unnecessarily. It was obvious that the reliability of LSC Cashmere’s recollections as to his thoughts would be hotly in question. The absence of this additional evidence (without explanation that it would not have been available) fortifies my view that Ms Music did not act in a way that could reasonably have led LSC Cashmere to apprehend that there was a significant probability that she might act violently towards the police officers if directed to submit to being detained by them.
Although LSC Cashmere was aware of an earlier incident suggestive of Ms Music’s mental health history, he had no reason to consider that she had evinced violence to anyone, or police in particular. Though she took several steps to evade police in the afternoon, nothing she had done up to the point that she was sprayed indicated that she would probably become violent towards police. He mentioned that she had shuffled back; not towards him. Contrary to LSC Cashmere’s evidence, verbal abuse or swearing towards police did not of itself reasonably betoken a threat of violence.
Nor do I accept LSC Cashmere’s evidence that he actually thought of the risks to safety presented to him or other officers that would arise if he or others physically grabbed her, or fell on her. That evidence struck me as pure reconstruction.
Secondly, I further doubt that LSC Cashmere considered the prospect of Ms Music fleeing the multiple police officers who were in close physical proximity to her, such as by attempting to climb the fence. Again the BWC footage, indicating the quickness of the decision to use the spray, and the speed in which events occurred militate against that likelihood. But even if such concern did exercise his mind, such concern was not reasonably based. Although it was true that she had successfully fled and evaded police in the afternoon, through the barricading of the front door and exiting of the home through the back, at the point that the decision to use the spray was reached, the dynamics and environment had changed. At the point when the spray was deployed, she was closely surrounded by officers in a small space and, in a practical sense, was already under police control.
Thirdly, when deciding what force to deploy, LSC Cashmere did not seriously turn his mind to the significance that he was dealing with an apparently mentally troubled person: he did not take any steps to ‘de-escalate’. I accept that an approach that encourages police to engage in de-escalation is qualified in the manual, by the words “where possible”. Part of de-escalation was to allow for some time to pass, to enable a person in a heightened emotional state to calm down. There is some merit in the State’s argument that attempts to communicate and try to cajole her to allow herself to be escorted to an ambulance had proved fruitless, however, the BWC footage indicates that LSC Cashmere, other than perhaps yelling at her to get to the ground, made no attempt to communicate with her. Without apparent urgency, and the apparent absence of any threat of violence Ms Music posed to police, the notionally reasonable arresting officer would have considered that Ms Music required patient and sensitive handling. I am not persuaded that the application of communication skills and an attempt to de-escalate was not “possible” in the circumstances.
Fourthly, once he had decided on his proposed course of action, he issued no warning to Ms Music that unless she complied with his directions, he was prepared to administer the capsicum spray against her. It was also a matter emphasised in the manual (Exhibit AC, p 16). The significance of an arresting officer giving a warning about the use of force was of some significance in Benn (at [18]), in a case concerning a taser. Mindful of the need to guard against hindsight bias, in my view, a reasonable arresting officer in LSC Cashmere’s position would, or should have, appreciated that to administer the spray without warning to an apparently mentally disturbed person might be the sort of thing that would set off the sense of affront and indignation that has fuelled Ms Music ever since.
After all that had occurred that afternoon, it was reasonable for LSC Cashmere to harbour significant scepticism doubts as to Ms Music’s willingness to voluntarily allow herself to be taken to the waiting ambulance. But the BWC footage indicated that his approach as he descended the stairs was intended to eliminate any possibility at all that she might submit. That was done in circumstances where LSC Cashmere did not point to any urgency in detaining her. In particular, LSC Cashmere did not assert, and the State did not submit, that he was conscious of or influenced by the extent of police resources that had already been deployed that afternoon in relation to Ms Music.
I find that his approach, evaluated against the approach earmarked for mentally disturbed persons (Exhibit AA), resorted to force prematurely. His approach was confrontational. Contrary to what was argued (Exhibit AA) the spray was utilised against an apparently mentally disturbed person as a first resort; not a last resort.
I do not find persuasive the proposition that after the first spray, it would have been expected that Ms Music would submit and that her omission to do so justified the second spray. A reasonable police officer would, in my view, have anticipated that the initial use of the spray (without prior warning) was more likely to engender shock and disorientation in Ms Music. It would likely have impeded a rational thought process resulting in her compliance with further directions. Nor do I place much credence on the notion that officers would have been reticent to grab Ms Music because of COVID-19. LSC Cashmere and other officers were masked. No evidence was given of any internal NSW Police edict cautioning officers from getting into close proximity with those whom they wished to arrest or detain (indeed Constable Alo did not appear perturbed because of this matter), and at the time LSC Cashmere referred to COVID-19, it appeared to be as something of an afterthought. This struck me as another instance of reconstruction.
I do not place much weight upon the evidence Ms Music gave at the hearing to the effect that she would not under any circumstances have consented to police detaining her for the purpose of taking her to the hospital. I agree with Ms Music’s Counsel that Ms Music’s evidence was not unequivocal in that regard. Further, I find that since the use of the spray, Ms Music’s attitudes towards police officers have hardened, or become more hostile. In such circumstances, retrospective counterfactuals of what she says she would have done in complying with police directions have little probative force.
In all of this, it is as well to recall from the Lumley decision cited by Heydon JA in Woodley above (at paragraph 201), that the reasonableness of an arresting officer’s advertence to other responsibilities is linked to the likelihood of concerns arising.
The State has not persuaded me that in the circumstances, the cumulative requirements in s 81(2)(a) and (b) of the MH Act were each complied with. The use of the spray was not a reasonable use of force in the circumstances that it was inflicted.
As I have noted, the State did not suggest that if the matter was considered with reference to ss 230 or 231 of the LEPR Act, the result would be any different.
That being so, Ms Music has made out her action in battery, as that was constituted by LSC Cashmere’s infliction of the capsicum spray.
I am not persuaded that this is so. I would not have been convinced under any less demanding legal requirement that exacerbation of a pre-existing mental illness was either inevitable, or the natural or probable, consequence as a result of the infliction of the spray or that LSC Cashmere was reckless to that possibility; even if it might arguably have been foreseeable. In any event, under the prevailing interpretation of the second limb of s 3B(1)(a), LSC Cashmere did not actually and subjectively intend that by spraying Ms Music, the result would be the exacerbation (or even institution or creation) of psychological harm.
He intended to safeguard her interests, in having her mentally assessed and treated by means of using a spray which he knew would occasion a temporary burning sensation in her eyes whose effects could soon be relieved against.
This conclusion as to LSC Cashmere’s state of mind is buttressed by at least a number of considerations. First, he was acting in circumstances of what he perceived (rightly or wrongly) as one of urgency and which involved no pre-meditation. Generally, as I have found, far from wanting to cause injury to Ms Music, LSC Cashmere’s motive was to detain her and get her to a mental health facility as soon as possible so as to reduce the risk that she might harm herself. That is to say, by getting her to the hospital as quickly as possible, she could be assessed by qualified professionals and, naturally, receive such treatment as they might be appropriate for her to receive to help her deal with her mental health issues. (In the events that occurred, although she was discharged from Blacktown Hospital, a clinical note recorded that Ms Music was expected to receive “Acute Care Follow Up”.) This was the antithesis of his intending to cause psychological damage. Secondly, although he knew that the spray might cause a burning sensation, his belief would likely have been that would be only temporary, transient or fleeting. If he did not arrange for it to be on hand himself, he knew that an ambulance was on hand to ‘de-contaminate’ and eliminate the burning sensation as soon as practicable; and how practicably that could occur was affected by how quickly police could restrain and get Ms Music to the paramedics.
In summary, for the battery claim, damages are to be under the CL Act; and for the false imprisonment claim (if that had been established), damages would have been assessed under the common law.
In both letters, reference was made to her ‘traumatic experiences’ with police. In the former letter, Ms Wachala stated that “the content of her thought reflected distress related to traumatic experiences with police”.
Ms Naomi Rose is a counsellor from the PotentialZ Unlimited clinic. She saw Ms Music on 34 occasions in the period from 2022 and 2024. Some of these were itemised in a document created on 2 March 2023 (Exhibit N). The State noted that the first time Ms Music saw Ms Rose was on 26 July 2022. This was about 10 months after the subject incident. It was also two days before she was due to attend the Local Court on a charge relating to destruction of evidence. I note that this consultation occurred just over 3 weeks since she had seen the psychologist, Peter Gough (which had occurred on 6 July 2022 – see below).
Copies of notes that Ms Rose produced to the Court were tendered (Exhibit Q). Within Ms Rose’s notes are references to her ‘dread’ of police (7 September 2022), Ms Music’s sense of injustice: she could not “get over what was done” (5 October 2022) and believe she was a victim of ‘police brutality’ (3 November 2022, 8 March 2023) or subjected to “torture” (25 and 31 January 2023). The notes indicate:
her sense of connection between the events of 30 September 2021 and ‘flashbacks from police’ (13 October 2022);
being evicted the next day (27 October 2022);
complaints she was still ‘triggered’ by the police incident (29 November 2022, 24 May 2024) and had nightmares about the incidents (13 October 2022);
that she considered herself very traumatised by the incident – to such a degree that she starts shaking when she sees police (31 January 2023), or was triggered by their presence (14 June 2023), had dreams about police (29 March 2023) or was scarred by memories of the incident (13 September 2023).
Ms Music said she stopped seeing Ms Rose in December 2024. She said that she spoke to Ms Rose about her experiences. In the first of her consultation notes (7 September 2022), it was noted that Ms Music had a history of PTSD, domestic violence and a ‘dread’ of police. In many of the consultation notes from 2022 there are references back to the incident, and effects upon the plaintiff, of 30 September 2021. In particular, there are repeated references to flashbacks, nightmares and Ms Music’s perceived need to repeat her story. It appears, also, that she was contemplating her lawsuit from late 2022. Another feature of Ms Rose’s notes is Ms Music’s sense of being ‘triggered’ by frequent or continuing dealings she has with police due to her son’s troubles and preparation of this case for hearing.
Since January 2025, Ms Music has seen Anica Spatz, for psychological therapy. I referred earlier to Dr Benedicto’s referral of 23 June 2025. Ms Music said in her evidence that she thought she had seen Ms Spatz seven times. Ms Music said that Ms Spatz had suggested to her that she see a psychiatrist. Ms Music said she was willing to receive psychiatric treatment. A bundle of documents were produced by Ms Spatz (Exhibit Y) and tendered on Ms Music’s behalf. These recorded consultations throughout 2025.
After an ‘initial session’ on or about 13 January 2025, following an AVL visit Ms Music had had with her son, Brandon who was in jail, Ms Spatz recorded her interpretation of what Ms Music had informed her about the subject incident. Ms Music told her about the consequences of that event being ‘highly traumatic to her’ and that she had been struggling with PTSD symptoms since. Ms Music plainly indicated that she had an on-going case against police and had indicated that the hearing was due to occur in May (in the event it started in July). She plainly indicated to Ms Spatz that she felt she received ‘unfair treatment’ from police and moreover, felt that police had ‘destroyed her life’.
When Ms Spatz assessed Ms Music on 28 January 2025, her clinical impressions referred to PTSD which she sourced in both an “Assault by police” and “Domestic Violence perpetrated by former partner”. At the session that day, Ms Music apparently informed her that on a jail visit to her son, she was body-searched and that this had “triggered her PTSD whenever she sees police officers”.
The same clinical impressions were recorded in other progress notes of consultations on 26 February 2025 and 11 March 2025. The clinical impressions recorded on 24 March 2025 (and 18 July 2025) retained PTSD sourced from a police assault, but omitted domestic violence as a source (although a reference was made to a trauma history due to domestic violence). The note of 24 March 2025 also referred to Ms Music’s reports to Ms Spatz of having cried for 6 months after the incident on 30 September 2021; and thinking that she was going to die. She was now extremely frightened whenever she saw a police officer in uniform.
In a document titled ‘PTSD Checklist for DSM-5’ apparently prepared on or about 24 March 2025, reviewed two questionnaires Ms Music completed. Ms Spatz opined that she was likely to have PTSD according to the DSM-5 guidelines.
In a clinical summary contained in a progress report sent to Dr Benedicto on 10 June 2025, Ms Spatz referred, amongst other things, to Ms Music’s “Posttraumatic stress disorder related to an assault by police”. She wrote as follows:
Dr Allnutt agreed with the proposition that her on-going relationship with her former partner, entailing the violent history, was a substantial contributing factor to her mental state, amongst other factors. In re-examination, he identified those other factors as her state of homelessness, difficulties with son (and issues affecting him, such as drugs, incarceration and his abusive behaviour towards her) and experience with police.
The Court was informed that the Gough report was relied upon by Ms Music in the Local Court, in her presence and the presence of her Ms Music’s lawyers (notwithstanding Ms Music’s complaint to them about the Gough report) presumably in the belief that it would aid her position that it was more appropriate that she be dealt with by the learned Magistrate under mental health legislation rather than in accordance with general sentencing law. Certainly the tender of it on her behalf could only have been made with the implied if not express representation to the Magistrate that confidence could be placed in it. In these circumstance, I considered that Ms Music’s objection to and complaints about the report and its significance to this proceeding are rather hollow.
Considering the other evidence of Ms Music’s evidence, I regard Mr Gough’s formulation in the following passages (at paragraphs 30–31) to not only be plausible, but incisive:
Further, with reference to the objective probabilities, although the events of 30 September 2021 may not have been the first occasion in which Ms Music had a clear conflict with police – she was obviously aggrieved with what occurred in January 2019 – what police officers did that day, including primarily the use of the spray, was inherently the type of thing that would cause a mentally troubled person nightmares or flashbacks since there was the direct infliction of force upon her body. It appears that this was the first time that police officers inflicted force on her. The complaint that Ms Music later expressed to Ms Spatz, that she was shocked that she would be mistreated by police, although expressed in 2025 in close proximity to the hearing, struck me as authentic and not a fabrication. She was already, as it were, ‘on the run’ from police, or evading them, in the lead up to being sprayed. As indicated, this conduct itself was an apparent manifestation of mental disturbance. Being the object of a police officer’s capsicum spray took things to a new level.
Factual causation is therefore made out, for the purposes of s 5D(1)(a) of the CL Act (on the premise, as I have found, that the provisions in Part 1A apply) and, at any rate, causation would have been found under general law principles. I did not understand the State to argue that normative considerations would preclude acceptance that the ‘scope of liability’ requirement in s 5D(1)(b) was also established. I find that LSC Cashmere’s deployment of the capsicum spray caused an exacerbation of Ms Music’s pre-existing PTSD.
I accept that the episode would have been shocking to Ms Music. I also accept that she was, and remains, genuinely indignant as to what occurred. Further, she also genuinely considers that her appearance has been disfigured by the use of the spray. There is some support for that (Exhibit H) and Ms Music had complained to at least one of her counsellors about it. That is, that her interest in her bodily integrity was infringed.
In the assessment of compensatory damages for the battery, I do not consider that I am confined simply to the exacerbation of her PTSD. Allowance should be made on a whole-body basis. Nevertheless, with some reservation, I find that Ms Music has barely reached the threshold of 16% of a most extreme case such as may found recovery of that award. That yields an entitlement of $12,000.
Had the matter been determined in general law, I would have awarded a sum for compensatory damages of $15,000.
In my exchanges with Ms Music’s Counsel on the subject of aggravated or exemplary damages, no suggestion was made that allowances should be given if I had found that the torts of trespass to land (as was contemplated in Ibbett) or false imprisonment were made out.
Further, in my view, any award for aggravated damages would need to reckon with the circumstance that it was Ms Music’s own evasive conduct which largely contributed to the perceived need in LSC Cashmere to take the action in deploying the capsicum spray that he did. In such circumstances, that is a matter which derogates from any amount that would otherwise have been recoverable. [27]
Had I found that the carve out under s 3B(1)(a) from the CL Act applied to the battery constituted by the use of the spray, I would nonetheless, have still declined to award aggravated or exemplary damages.
The State’s submissions had force. Nevertheless, I find that in the face of her difficulties, Ms Music has a residual level of motivation to work and some skills; particularly in what I might call the care economy; ie in helping other people.
Unfortunately, to the extent that she is hindered in exercising her work capacity, this is much more the result of ‘non-tortious’ events than residual effects of the events of 30 September 2021. That being so, applying the DC principle and accepting also the proposition that a buffer sum would be appropriate, I make allowance for the sum of $10,000 for this claimed head of loss.
Ms Music has not proven this claim.