Benn v State of New South Wales

[2016] NSWCA 314

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Benn v State of New South Wales [2016] NSWCA 314

Hearing dates:

7 November 2016

Decision date:

18 November 2016

Before:

Meagher JA at [1];
Gleeson JA at [2];
Johnson J at [77].

Decision:

1   Extend the time for filing the summons seeking leave to appeal to 27 May 2016.
2   Summons dismissed with costs.

Catchwords:

APPEAL – against Supreme Court dismissal of appeal from Local Court decision – Local Court dismissal of damages claim against State for alleged assault by police officer – whether lawful justification for police officer’s use of Taser on plaintiff-applicant – ss 22 and 81 Mental Health Act 2007 (NSW) – whether reasonable force exercised in apprehension and detention of mentally ill person – where applicant sought on first-level appeal to rely on new point of unlawful apprehension or detention – whether joinder of issue on pleadings as to lawfulness of apprehension – Uniform Civil Procedure Rules 2004 (NSW) r 14.27(2) – party’s obligation to plead any matter which may take other party by surprise – UCPR r 14.14 – Civil Procedure Act 2005 (NSW) s 66(3) – where compliance with common law principles of arrest (requiring provision of warning and reasons) not raised by applicant in Local Court pleadings or hearing – where issue of warnings first raised in applicant’s supplementary submissions following trial’s conclusion – where respondent prejudiced by denial of opportunity to make different forensic decisions

 

PROCEDURE – appeal – requirement of leave – Supreme Court Act 1970 (NSW) s 101(2)(r) – where relatively small amount in issue in second-level appeal – where applicant seeking remittal for assessment of damages

  CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers – application of common law principles of arrest to exercise of power to apprehend/detain under Mental Health Act – whether apprehension/detention unlawful in absence of police provision of warning or reasons – where finding by magistrate that police’s intention to apprehend and detain applicant was clear to applicant and he resisted – finding that police officer continually offered to take plaintiff to mental health facility – finding that warning and reasons would likely have led to reaction and violence by applicant – effect of exclusion of codified requirements of warning and reasons under Law Enforcement (Powers and Responsibility) Act 2002 (NSW) s 201(3)

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56
Law Enforcement (Powers and Responsibility) Act 2002 (NSW) ss 4, 5, 201, 202
Local Court Act 2007 (NSW) ss 33, 39, 40
Mental Health Act 2007 (NSW) ss 22, 81
Mental Health Act 1990 (NSW) s 24
Supreme Court Act 1970 (NSW) s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW) rr 14.4, 14.14, 14.27

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Benn v State of New South Wales [2015] NSWLC 16
Benn v State of New South Wales [2015] NSWSC 1672
Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Christie v Leachinsky [1947] AC 573
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
State of New South Wales v Talovic (2014) 87 NSWLR 512; [2014] NSWCA 333
White v Overland [2001] FCA 1333
Zelden v Sewell [2011] NSWCA 56

Category:

Principal judgment

Parties:

Applicant – Andrew Stephen Benn
Respondent – State of New South Wales

Representation:

Counsel:
Applicant – David Hooke SC with Harrison Grace
Respondent – John Maconachie SC with David Hume

  Solicitors:
Applicant – Randall Legal
Respondent – Crown Solicitor

File Number(s):

2016/162947

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

Benn v State of New South Wales [2015] NSWSC 1672

Date of Decision:

13 November 2015

Before:

Associate Justice Harrison

File Number(s):

2015/139778

Judgment

1. MEAGHER JA: I agree with Gleeson JA.

2. GLEESON JA: The applicant, Andrew Stephen Benn (Mr Benn), seeks leave to appeal from a judgment given in the Common Law Division on 13 November 2015 in which the primary judge (Harrison AsJ) dismissed Mr Benn’s appeal from orders made in the Local Court by Magistrate Heilpern: Benn v State of New South Wales [2015] NSWSC 1672. On 14 April 2015, Heilpern LCM dismissed Mr Benn’s claim against the State of New South Wales (the State) for damages for assault committed on 1 October 2010 when a police officer fired a Taser to restrain Mr Benn: Andrew Stephen Benn v State of New South Wales [2015] NSWLC 16. The discharge of the Taser occurred in circumstances where police apprehended Mr Benn and took him to a mental health facility attached to Lismore Base Hospital.

3. As the matter at issue involves an amount less than $100,000, Mr Benn requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(r). The summons seeking leave was filed on 27 May 2016, a little over five months out of time. Mr Benn therefore also requires an extension of time for seeking leave to appeal from the orders made on 13 November 2015. The State does not oppose an extension of time.

4. For the reasons which follow, I have concluded that an extension of time should be granted, however, the application for leave to appeal should be dismissed with costs.

Outline of events

5. On 1 October 2010 at about 12.30 am, police officers observed Mr Benn drinking and sitting on a roundabout at the intersection of Barker Street and Walker Street, Casino, in northern New South Wales. The two police officers who initially attended that location were Senior Constable Reddell and Constable Campbell. Mr Benn was intoxicated and highly agitated in relation to issues with his girlfriend; he was very upset and crying. Mr Benn gave his mobile phone to Senior Constable Reddell to show him the text messages his girlfriend had sent him. It is unnecessary for present purposes to refer to the content of those messages. A little later Mr Benn said to the police officers “take me to Richmond Clinic for all I care, just fuck off and leave me alone”. The Richmond Clinic was a declared mental health facility attached to Lismore Base Hospital. Senior Constable Reddell had knowledge of Mr Benn’s recent mental health issues, having scheduled him pursuant to s 22 of the Mental Health Act 2007 (NSW) (Mental Health Act) a week prior to 1 October 2010. On that occasion, Mr Benn had entered the police station requesting to be scheduled as he wanted to hurt someone or kill himself. Constable Campbell was aware of Mr Benn’s history of violence towards police, that he had been charged with assaulting police and had herself previously arrested Mr Benn (for malicious damage).

6. The police officers spoke with Mr Benn for about 30 minutes. Constable Campbell formed the view that Mr Benn needed to be detained for his own safety and called for backup from her supervising officer, Sergeant Walpole, while Senior Constable Reddell continued negotiating with Mr Benn. After Sergeant Walpole arrived, the police continued negotiations with Mr Benn for about a further 25 minutes. During that time they were joined by two other police officers from Lismore.

7. During the negotiations, Mr Benn made a variety of threats to the police officers, including that he would punch them in the face. His reaction was heightened when police moved closer to him. Mr Benn then yelled “come any closer and I’m going to start breaking noses”. He also threatened harm to himself and his girlfriend, saying “I’m going to kill her”. At one point, Mr Benn was encouraged to go near the police truck, but then he refused to get in. The Magistrate found that Senior Constable Reddell was continually saying “calm down” and offering to take Mr Benn to the hospital. When Mr Benn refused the police’s offer to take him to the Richmond Clinic he yelled that they had not done anything for him in the past.

8. The police officers made a decision that they would not leave without Mr Benn. The police surrounded the middle of the roundabout. Mr Benn became more aggressive and agitated, and started to walk away from the police and towards the pedestrian crossing. Police walked towards him. When Mr Benn got to the pedestrian crossing and after Senior Constable Reddell warned him that he would be Tasered if he did not stop, that officer discharged the Taser from a distance of four - five metres. The Magistrate found that Mr Benn was electrocuted in his back for one cycle (of five seconds’ duration).

9. The Magistrate also found that the negotiation period lasted for 55 – 60 minutes (at [32]) and the police’s actions made clear their intentions to detain Mr Benn and that he was resisting that intention: at [56]. That finding is well supported by the evidence. In his written statement, Senior Constable Reddell gave the following evidence:

14.   The plaintiff started walking away towards the pedestrian crossing and he made threats that he would kill himself. I said words to the effect of: “calm down” and “we can take you to hospital”. I was attempting to control the situation, but was not able to talk to the plaintiff and get a rational response. It was obvious in getting him to hospital would involve the use of force.

15.   The plaintiff was facing me and backing away and I drew my taser, I didn’t initially activate it, I said to him “Andrew, stop or you are going to be tasered”. I then activated the taser and said, “Put it down or I’ll spark you up”. I was referring to the alcohol beverage the plaintiff was carrying. I wanted the plaintiff to put down the beverage to prevent its use as a weapon, as I approached. The plaintiff saw the light of the Taser and turned around very quickly, at which time the taser was activated into the plaintiff’s back.

10. In cross examination, Mr Benn gave the following evidence:

Q.   Did Senior Constable Reddell say to you, ”Andrew, stop or you are going to be Tasered.”

A.   Yeah, yeah, he said something like that. Yeah.

Q.   And you did not stop did you?

A.   I told him I was going home. Which is all he wanted to do – he wanted me to do and when I seen all the police I just said, ”Okay, I’m going home,” and then that’s when he’s pulled the Taser.

Q.   You were told by police, were you not, “No, you’re not going home in your state of mind after what you’ve said”?

A.   No. No, don’t remember that. They were saying to get in the truck.

The proceeding in the Local Court

11. Mr Benn sued the State as vicariously liable for Senior Constable Reddell’s conduct in firing the Taser. He claimed damages for trespass to person in the form of assault. By its defence, the State admitted that it was vicariously liable for any torts committed by the police officers. To discharge the Taser on Mr Benn, the police required a lawful justification. The State relied, among others, upon the powers conferred by ss 22 and 81 of the Mental Health Act. The State pleaded in its defence (par 3) that:

Senior Constable Reddell used his Taser to physically restrain [Mr Benn] in an exercise of reasonable force to lawfully apprehend [Mr Benn] pursuant to sections 22 and 81 of the Mental Health Act 2007 (NSW), to take [Mr Benn] to a declared mental health facility.

12. In the Local Court, the focus of argument was on the powers conferred on police by the Mental Health Act.

13. Section 22 of the Mental Health Act relevantly provides that, in certain circumstances, a police officer may apprehend a person and take the person to a declared mental health facility. There are a number of conditions for the exercise of the power conferred by s 22. It is prerequisite that the person appear to be mentally ill or mentally disturbed at the time when the police officer finds the person. Relevantly, the police officer must also believe, on reasonable grounds, that it is probable the person will attempt to kill himself or another person, or attempt to cause serious physical harm to himself or another person. Further, the police officer must believe on reasonable grounds that it would be beneficial to the person’s welfare to be dealt with in accordance with the Mental Health Act, rather than otherwise in accordance with law.

14. A police officer may apprehend a person under s 22 without a warrant. Section 81 relevantly provides that a police officer may take to a mental health facility any person who is authorised by the Mental Health Act to be taken to such a facility. Such a police officer may use reasonable force in exercising the functions under s 81 or under any other provision of the Mental Health Act that applies s 81. Such a police officer may also restrain the person in any way that is reasonably necessary in the circumstances.

15. In his written submissions after the end of the trial Mr Benn acknowledged (in par 12), under the heading “Justification”, that the issue raised by the State’s defence – based upon the powers conferred by ss 22 and 81 of the Mental Health Act – was whether the officer used reasonable force to restrain Mr Benn. There was no suggestion by Mr Benn before the Local Court that his apprehension or detention by the police officers on 1 October 2010 was unlawful.

16. Consistently with Mr Benn’s approach in the Local Court, the State’s written submissions noted (in par 3) that there was no claim for false arrest/wrongful imprisonment. The State’s submissions continued:

That is, there is no challenge by the plaintiff to the necessity of the arrest, only to the force which was used to effect it.

17. In supplementary submissions, Mr Benn submitted (par 11) that:

… in any event, the real issue is less the head of power, and more the question of whether reasonable force was used. [Emphasis added]

18. Mr Benn’s supplementary submissions continued by identifying (in par 28) the “ultimate issue” as whether the use of a Taser on a retreating – or fleeing – mental health patient can ever be justified. Importantly, Mr Benn accepted (in par 32):

Officer Reddell suggested that he did warn Mr Benn about Taser use, Mr Benn recalled something similar. But on either account it was immediately before the Taser was fired.

19. Mr Benn’s supplementary submissions continued:

39.   At common law there has long been a requirement that a person arrested be informed of the reason why, lest they should resist: Christie v Leachinsky [1947] AC 573.

40.   The nub of the proposition as relevant here is found in the text of proposition four as iterated in the speech of Viscount Simon

The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

41.   The plaintiff submits that this aspect of the common law should be applied in the situation where a person is ‘apprehended’ pursuant to the Mental Health Act, for involuntary detention for assessment at a mental health facility, simply as an extension of the requirement for reasonableness.

42.   Of course in the mental health context what is reasonable will turn on the circumstances, as in any other case. Clearly it is nonsense to require an officer to be so verbose if the situation is urgent or the subject to [sic] deluded or psychotic as to render attempts at clear articulation impossible or pointless.

43.   But that is not the case here. Mr Benn had spoken – quite coherently – with police for some 30 minutes. The options of taking him home or to the hospital had been canvassed.

44.   Whether because the common law requires it, or simply taking the common law as a guide to how ‘reasonable’ force will be interpreted in the Mental Health Act, the plaintiff submits that some degree of pre-warning would be required before Taser operation could be found reasonable.

20. The State objected in its supplementary submissions (par 7) to Mr Benn being permitted to challenge the lawfulness of his apprehension on this basis, as this matter was not pleaded and was not part of the case run at trial. It was also emphasised that no claim for false imprisonment was or could be made because the Local Court did not have jurisdiction to determine such a claim: Local Court Act 2007 (NSW), s 33(1)(b).

The Magistrate’s reasons

21. After indicating his acceptance of Senior Constable Reddell’s evidence as more reliable and preferable where it conflicted with Mr Benn’s evidence, the Magistrate set out his findings of fact before concluding that the use of the Taser upon Mr Benn constituted an assault, and accordingly, the question arose as to whether that action by the police was justified: at [28].

22. The Magistrate accepted that s 81 of the Mental Health Act was the relevant power under which the police, having formed the view that a person is mentally ill, are entitled to use reasonable force to take that person to a mental health facility, and may restrain the person in any way that is reasonably necessary: at [33]. Relevantly, the Magistrate noted (at [34]) Mr Benn’s submission in reply (set out at [17] above) that the “real issue” raised by the proceedings was whether reasonable force was used.

23. The Magistrate proceeded upon the basis that the test of reasonable force was objective, that is, whether, on the balance of probabilities, the force used was “reasonable and not excessive”: (at [37]). No complaint is made about the adoption of that approach. The Magistrate then addressed the police officer’s decision to detain and whether the use of the Taser was reasonable.

24. The Magistrate found that the decision to detain Mr Benn and take him to hospital was reasonable: at [39]:

25. The Magistrate noted (at [55]) that whether the use of the Taser was reasonable was identified as the “ultimate issue” in Mr Benn’s reply submissions (see [18] above). The Magistrate concluded that using the Taser was the “least worst option” and represented “reasonable and not excessive” force for the following reasons:

[56]   In my view, where the mental health patient has a known history of violence to police, has threatened to kill his girlfriend and to assault police and to harm himself, and there have been lengthy negotiations the answer is that it may be justified, if the other options are properly considered and rejected.

[57]   After all, what would have been a better option – to continue the negotiations as he walked off into the night, to crash tackle him to the ground on a road way with the potential for injuries for all, attack him with a baton, or risk police safety by attempting to spray him from a close enough distance without affecting other police? Perhaps it is arguable that there were other options, or even better options, but as discussed above that is not the test. It is not to assess which would be the best option, but whether the one chosen was reasonable in all the circumstances.

[58]   The police were confronted with a set of options all of which were going to involve a degree of violence. They had decided, reasonably, that they could not let Benn go on his way. In the real world, there is a limited timeframe for peaceful negotiations with a person who is threatening themselves, police and threatening to kill others. This is not using the Taser for convenience; it is using the Taser as the least worst option.

26. The Magistrate rejected Mr Benn’s supplementary submission that the police ought to have warned Mr Benn of the reasons why he was to be detained if the subsequent use of force was to be “reasonable”:

[60]   The plaintiff in submissions in reply at [33] to [35] contends that the police ought to have warned Benn that he was to be detained. All the police actions up to that point make it clear that this was their intention, and that Benn was resisting that intention. Surrounding Benn on the roundabout by all the officers made that even clearer to him. As for warning him that if he did not comply he would be Tasered, that was not a requirement in the standard operating procedures at the time to warn. I am satisfied that a warning would most likely have led to reaction, resistance or violence by Benn which may well have rendered the Taser option unavailable.

[61] LEPRA warnings did not apply to the Mental Health Act 2007 at that time; however, an issue has been raised in the plaintiff’s submissions in reply at [36] to [44] as to whether at common law such warnings ought be given. The contention is that for force to be reasonable, warnings ought be given. For the reasons above, in my view it was perfectly clear by the actions of the police in negotiating, enticing and then encircling Benn what their intentions were. It was not unreasonable not to warn in all those circumstances.

27. The Magistrate concluded that it was a reasonable assessment of the situation by Senior Constable Reddell that violent confrontation was imminent when the police took action to restrain Mr Benn: at [62]. Further, it was reasonable for Senior Constable Reddell to reject the options of force by unarmed restraint, baton or OC spray in the circumstances: at [63].

28. Accordingly, the Magistrate dismissed Mr Benn’s claim for damages on the basis that he had not proved his case as to liability.

Mr Benn’s appeal to the Supreme Court

29. Mr Benn appealed against the Magistrate’s decision to the Supreme Court. That appeal was limited to questions of law and, with leave, questions of mixed fact and law: Local Court Act, ss 39(1) and 40(1).

The grounds of appeal

30. The primary judge set out Mr Benn’s four grounds of appeal (at [10]) as follows:

[10] The plaintiff appeals from the whole of the decision of his Honour Magistrate Heilpern dated 14 April 2015, on the grounds that firstly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act 2007 (NSW) absent some communication or action on the part of the police to communicate plainly to the plaintiff that he was to be apprehended, was under arrest, under compulsion or no longer a free man; secondly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act absent an explanation of the substance of the reason for his arrest under that Act; thirdly, the Magistrate erred in law in determining that electrocution of the plaintiff with the taser constituted a reasonable use of force pursuant to the Mental Health Act, in circumstances where he had not received an explanation from police that he was to be apprehended, or the substance of the reason for that apprehension;  and finally, the Magistrate erred in fact and law in determining that the actions of police made their intentions so clear to the plaintiff that it was “not unreasonable not to warn” before applying force to apprehend the plaintiff under the Mental Health Act. [Emphasis added].

31. The complaint advanced in grounds 1 to 3 before the primary judge was directed to the “failure by the police to warn Mr Benn that he was being detained and as such no longer free to go, or the failure to advise him of the substance of the reasons for his arrest”. It was contended that the Magistrate had erred in law because the common law of arrest applies to detention under the Mental Health Act and that certain “warnings” were prerequisite to the lawful exercise of a power of apprehension under s 22; or alternatively that the common law informs what is “reasonable” in effecting an apprehension for the purposes s 22 of the Mental Health Act.

32. Ground 4 challenged the factual finding by the Magistrate that the police intentions must have been perfectly clear to Mr Benn that he was to be detained. It was asserted that this finding was against the weight of the evidence and that the Magistrate erred in finding that it was not unreasonable not to have warned Mr Benn concerning his arrest and the reason for it.

33. In support of these contentions, reliance was placed upon the propositions articulated by Viscount Simon in Christie v Leachinsky [1947] AC 573 (Christie v Leachinsky) at 587 with respect to the common law of arrest without warrant, and the decision of this Court in State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 (Riley) at [30] (Sheller JA) and at [90]-[92] (Hodgson JA). That case held that a person subject to apprehension under s 24 of the Mental Health Act 1990 (NSW) was entitled to be told the basis on which he or she was being detained: see State of New South Wales v Talovic (2014) 87 NSWLR 512; [2014] NSWCA 333 at [24] (Basten JA). Riley was not referred to by the parties in the Local Court, other than in the context of damages.

34. Thus a significant issue sought to be raised on the appeal below included whether the apprehending of Mr Benn under s 22 of the Mental Health Act had been lawful in circumstances where it was said that he was entitled to be told the reasons why he was to be detained. If it was not, it was suggested that there could be no lawful exercise under s 22(2) of any power to use reasonable force conferred by s 81.

35. The State objected to Mr Benn raising that issue on appeal, characterising it as a new point which had not arisen from the way in which Mr Benn had run his case at trial in the Local Court.

The primary judge’s reasons

36. The primary judge concluded that, on appeal, Mr Benn was seeking to run a new argument that he was unlawfully apprehended or detained, and that he had failed to raise this issue in the pleadings or during the hearing in the Local Court: at [80]. Her Honour accepted that Mr Benn made reference to the failure to warn in his supplementary submissions but by then it was too late (being after the trial had concluded).

37. Her Honour observed that there was some evidence on the topic of whether Mr Benn was told he was being apprehended and had produced the situation which made it practically impossible to inform him of the reason for his apprehension, noting (at [74]-[76]):

[74]   The plaintiff agreed that Senior Constable Reddell said something to him like “Andrew, stop or you are going to be tasered.” The plaintiff also agreed that he was told by police officers “to get in the truck” and that he did not do so. Thus there was evidence that the plaintiff was told that if he did not stop he would be tasered and he had to get into the truck and walking home was no longer an option. This denotes to the plaintiff that he had to “get in the truck”. In other words the plaintiff was being told he was being apprehended and deprived of his liberty.

[75]   The plaintiff was also asked in cross examination whether he was told by the police officers that they would not allow him to go home as he was threatening to kill himself. The plaintiff denied that he threatened to kill himself. Senior Constable Reddell deposed that the plaintiff was informed of the police officers [sic] wish to take him to hospital to protect him from harming himself. This version of events was expanded upon in cross examination and supported by the evidence of the other police officers.

[76]   So far as whether it was reasonable for the police not to warn the plaintiff about the tasering is concerned, on the way the case was run in the Local Court the Magistrate was satisfied that a warning would most likely have led to reaction, resistance or violence by the plaintiff which may well have rendered the taser the only option available. (J [56]).

38. Her Honour also observed that the complaint in Mr Benn’s supplementary submissions that there should have been some pre-warning given before the use of the Taser operation was linked to whether the use of the Taser constituted the exercise of “reasonable force”: at [78].

39. Her Honour found that had Mr Benn made it clear that he was alleging unlawful detention or apprehension under the Mental Health Act, the State would have had the opportunity to make different forensic decisions in the pleadings or at the commencement of the trial as to directing questions to Mr Benn’s witness and making submissions on that issue: at [80].

40. Her Honour concluded that the Magistrate did not err in law nor did he err on the issue of mixed fact and law raised in the grounds of appeal: at [81]. In dismissing the appeal, her Honour also affirmed the Magistrate’s decision and ordered Mr Benn to pay the State’s costs.

41. Mr Benn seeks leave to challenge the decision of the primary judge.

Proposed grounds of appeal

42. Proposed grounds 1 and 2 of the draft notice of appeal each challenge the primary judge’s conclusion that Mr Benn was seeking to raise a new point on appeal. It is contended that her Honour erred in law in holding that the lawfulness of Mr Benn’s apprehension was not a matter in issue before the Local Court (ground 1); and in holding that it was necessary for Mr Benn to plead and/or prove the unlawfulness of his apprehension, submitting that those are matters for which the State carried the onus at all times, and which the State had raised in its pleadings (ground 2).

43. Proposed ground 3 is a general complaint that her Honour erred in law in failing to find that the apprehension and assault of Mr Benn was unlawful.

Mr Benn’s submissions

44. In oral argument, counsel for Mr Benn adopted a more refined approach to the scope of the proposed grounds of appeal.

45. First, counsel for MrBenn ultimately accepted that there was no challenge to the legality of Mr Benn’s apprehension and detention by police officers relying upon s 22 of the Mental Health Act.

46. Secondly, the argument sought to be advanced on appeal was confined to two matters. The first and primary matter was directed to the question of what constituted the exercise of reasonable force in apprehending and detaining Mr Benn. It was submitted that it was necessary to have regard to all of the surrounding circumstances, including what was said to him by the police officers, and that there could not have been a reasonable exercise of force in the circumstances of the present case unless there was a Christie v Leachinsky warning given to Mr Benn before discharge of the Taser.

47. The complaint made was that the primary judge had erred in dismissing ground 3 of the appeal below (which was directed to this argument) on the basis that it was not part of the case conducted by Mr Benn at trial.

48. The second matter advanced by Mr Benn was that, in the circumstances of the present case, reasonable force did not involve the use of the Taser because the Magistrate erred in finding that it was perfectly clear to Mr Benn what police intentions were. Counsel for Mr Benn acknowledged that this complaint depended upon an acceptance of Mr Benn’s submission that there was a joinder of issue on the question of unlawful apprehension and detention.

Matters not argued in this Court

49. As already indicated, the premise of Mr Benn’s submissions on the appeal below was that the common law requirements of arrest apply to the exercise of the powers of apprehension and detention conferred by s 22 of the Mental Health Act, or alternatively inform the factual question as to whether there has been an exercise of reasonable force in the exercise of the power of apprehension and detention conferred by s 22. The parties did not direct any attention in this Court to whether that premise was warranted having regard to the terms of the Law Enforcement (Powers and Responsibility) Act 2002 (NSW) (LEPRA), in particular ss 4(1), 5(1), 201 and 202.

50. Section 4(1) states that unless LEPRA 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 LEPRA does not limit the functions that a police officer has under an Act specified in Schedule 1 (which, relevantly, includes the Mental Health Act). Part 15 of LEPRA headed “Safeguards relating to powers” applies to the exercise of various powers by police officers including the power of arrest: s 201(1)(a). Section 202 relevantly provides that a police officer who exercises a power of arrest must provide certain information to the subject of the exercise of that power, including the reason for the exercise of the power: s 202(1)(c). Importantly however, s 201(3) provides that Part 15 of LEPRA does not apply to the exercise of a power that is conferred, relevantly, by the Mental Health Act.

51. The facts in Riley preceded the introduction of LEPRA. That case concerned s 24 of the Mental Health Act 1990 (NSW), the predecessor provision to s 22 of the 2007 Mental Health Act, which is in similar but not identical terms to s 24 of the 1990 Act. Whether the difference in language is material was not the subject of argument in this Court. Nor was any argument directed to the question of whether a person subject to apprehension and detention under s 22 of the Mental Health Act is entitled to be told the basis on which he or she is being detained, having regard to the exclusion of Part 15 of LEPRA with respect to the exercise of the powers conferred by the Mental Health Act. One matter relevant to that question is the interrelationship between ss 4(1) and 201(3) of LEPRA. Another is the question of whether and to what extent a police officer’s power to apprehend and detain a person under s 22 is in the nature of a power of arrest.

52. It is unnecessary for the disposition of the present application to express any view on these matters. Nor would it be appropriate to do so in circumstances where neither party addressed them in either their written or oral submissions.

Disposition of the application

53. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (Be Financial) at [32].

54. There are two further considerations which are relevant here.

55. The first is that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money involved in the dispute: Carolanv AMFBowling Pty Ltd [1995] NSWCA 69 (Cole JA); Zeldenv Sewell [2011] NSWCA 56 at [22] (Campbell JA, Young JA agreeing); BeFinancial at [37] -[39] (Basten JA). Here the amount in issue is acknowledged to be less than $100,000; Mr Benn is seeking a second-level appeal with respect to a Local Court decision; and the relief sought by Mr Benn, if leave were granted and the appeal allowed, would involve a remittal of the matter to the District Court or alternatively the Local Court for the assessment of damages.

56. The second and related consideration is the need for restraint in permitting a second-level appeal in relation to decisions in the Local Court. That need is reinforced by the requirement of s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) that courts give effect to the overriding purpose of that Act and the rules of court being “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

57. Proposed ground 1 does not raise any issue of principle or question of general importance. Nor is any error demonstrated in her Honour’s conclusion that in putting this argument Mr Benn was seeking on appeal to rely on a new point which included that he had been unlawfully apprehended or detained. That argument had two limbs. One was the contention that absent any warning there could be lawful apprehension and no lawful justification for the discharge of the Taser. The other was the contention that the lawfulness of the apprehending by compliance with the common law requirements in Christie v Leachinsky determined the question whether the discharge of the Taser involved the exercise of reasonable force.

58. Contrary to Mr Benn’s submissions, there was no (implied) joinder of issue on the pleadings as to the lawfulness of the apprehension: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.27(2). So much was expressly accepted in MrBenn’s written submissions at trial in the Local Court (see [15] above). There, Mr Benn argued that the “real issue” raised by the State’s reliance upon the powers conferred by ss 22 and 81 of the Mental Health Act was whether the police officer used reasonable force to restrain Mr Benn.

59. Nor was it part of the case conducted by Mr Benn in the Local Court that compliance with the common law requirements in Christie v Leachinsky determined the question whether the discharge of the Taser involved the exercise of “reasonable force”. That matter was first mentioned in Mr Benn’s supplementary written submissions filed 24 March 2015, but, as the primary judge correctly observed, by then it was too late. The trial was over.

60. If Mr Benn had intended to rely upon that matter as informing that question, it should have been pleaded, being a matter which, if not pleaded specifically, may take the other party by surprise. That obligation applies not only to a plaintiff in his or her statement of claim: UCPR, r 14.14(1), but to any subsequent pleading, which would include a reply: UCPR, r 14.14(2). Not having raised the matter in his statement of claim, it was open to Mr Benn to file a reply, with leave, raising the issue of the lawfulness of his apprehension by the police officers. Leave is required to file a reply in the Local Court: UCPR, r 14.4(2).

61. That is not to say that Mr Benn bore the onus of proof on the issue of the exercise of reasonable force. The onus of proof in establishing lawful justification for the Tasering, including the use of reasonable force in exercising the power under s 22 of the Mental Health Act, rested upon the State. Nonetheless, the argument sought to be relied upon by Mr Benn on the appeal below, raised matters which should have been specifically pleaded at trial.

62. Accepting that the issue of failure to give a warning had not been specifically pleaded by Mr Benn, it was incumbent upon him, preferably earlier, but at the latest, at the opening of the trial, to take steps to ensure the other party to the dispute was cognisant of what the issues sought to be raised were. This follows from the requirements of s 56(3) of the Civil Procedure Act, which provides that a party to civil proceedings is under a duty to assist the court to further the “overriding purpose”, as stated above at [56]. The duty mandated by s 56 is not a new phenomenon. It reflects in part what had earlier been described as the “cards on the table” approach to litigation: see Boyes v Collins (2000) 23 WAR 123; [2000] WASCA 344 (Ipp J, Pidgeon and Wallwork JJ agreeing); White v Overland [2001] FCA 1333 at [4] (Allsop J); and Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[162] (Allsop P, Beazley and Campbell JJA agreeing). That approach applies just as much to proceedings in the Local Court as it does to long and complex trials in the Commercial List of the Supreme Court.

63. Here there was no opening at trial by counsel for Mr Benn which outlined the case or the issues likely to arise. After dealing with certain procedural matters, including a subpoena, counsel for Mr Benn called him to give his evidence in chief. The primary judge was correct to conclude that at no stage during the conduct of the trial was the State alerted to the issue which Mr Benn first raised in his supplementary submissions. To that point the absence of various warnings was not relied on as relevant to whether the use of the Taser constituted “reasonable force”.

64. Although the Magistrate addressed and rejected that argument, the primary judge was correct to observe that it was too late for Mr Benn to seek to rely upon the significance of the absence of any particular warnings to the lawfulness of any apprehending. Mr Benn did not challenge the primary judge’s finding as to the prejudice suffered by the State if that argument was allowed to be made. The State was denied the opportunity to make different forensic decisions, including cross-examination and making submissions on the issue belatedly raised by Mr Benn.

53. Leave to appeal should be refused in respect of proposed ground 1.

54. Proposed ground 2 asserts that the primary judge reversed the onus of proof on the issue of exercise of reasonable force, when stating that Mr Benn had failed to plead any alleged unlawful apprehension or detention. This ground is misconceived. As explained above, her Honour’s reference to the need to plead that matter specifically was not related to the question of onus of proof. Rather, there being no claim by Mr Benn for either wrongful arrest or false imprisonment (nor could such a claim be made in the Local Court), any allegation of unlawful apprehension or detention was a matter which, if not specifically pleaded, may take the other party by surprise.

55. There was no error in her Honour’s approach to the significance of the absence of any pleading challenging the lawfulness of Mr Benn’s apprehension or detention, or the failure to give a Christie v Leachinsky warning.

56. Further and importantly, aside from the pleadings, as her Honour found, what was fatal to Mr Benn’s appeal below was the way in which Mr Benn had conducted his case at trial in the Local Court. That case did not raise the issue of unlawful apprehension or detention as either precluding lawful justification for the discharge of the Taser, or informing the factual question of the exercise of reasonable force.

57. Leave to appeal should be refused in respect of proposed ground 2.

58. Proposed ground 3 repeats the complaint made in ground 4 of the appeal before the primary judge that the Magistrate’s factual finding – that it was perfectly clear what the police officers’ intentions were – was against the weight of the evidence. The immediate difficulty for that ground was that it was not directed to a question of law.

59. Before the primary judge, Mr Benn submitted that “there is an inference open that Mr Benn thought he could simply leave the public place and walk home, which is what he tried to do”. The primary judge rejected this submission given the evidence of the police officers that Mr Benn was told that he was not allowed to go home as he was threatening to kill himself: see [75]-[76] of the primary judge’s reasons set out at [37] above.

60. No issue of principle or question of general importance is raised by this ground. Nor has MrBenn demonstrated that the primary judge was arguably wrong in rejecting a factual challenge to the Magistrate’s conclusion. Leave to appeal should be refused in respect of proposed ground 3.

61. One further matter should be mentioned. The State submitted in the alternative that, on the findings made by the Magistrate, the circumstances of the apprehension of Mr Benn by the police exercising the power conferred by s 22 of the Mental Health Act, fell within either of two well-recognised exceptions to the common law requirements in Christie v Leachinsky. One was that Mr Benn must have been aware of the general nature of the reason for his apprehension. The other, and alternative exception, was that Mr Benn produced a situation which made it impracticable to inform him of the reason for his apprehension. These submissions assumed that those common law principles continued to apply to the exercise of the powers of detention conferred by s 22 and 81 of the Mental Health Act.

62. The State pointed to the Magistrate’s findings, referred to above, that (a) all the police actions made it clear that the police officers’ intention was to detain Mr Benn; (b) Mr Benn was resisting that intention; (c) Senior Constable Reddell continually offered to take Mr Benn to the hospital; (d) ultimately, Mr Benn attempted to get away from the police encircling him at the roundabout; and (e) a warning would most likely to have led to reaction, resistance or violence by Mr Benn.

63. Although these findings were not specifically directed to the exceptions to the Christie v Leachinsky warnings, there is much force in each of the State’s alternative submissions. However, in light of the conclusion that leave to appeal should be refused, it is unnecessary to consider these matters further.

Conclusion

76. Mr Benn has failed to demonstrate any basis for a grant of leave to appeal. I propose the following orders:

1   Extend the time for filing the summons seeking leave to appeal to 27 May 2016.

2   Summons dismissed with costs.

77. JOHNSON J: I agree with the reasons and proposed orders of Gleeson JA.

**********

Decision last updated: 18 November 2016