Benn v State of New South Wales

The appeal concerned a damages claim brought by the applicant against the State of New South Wales, arising from the alleged assault by a police officer. The applicant sought damages for the use of a Taser on him by the police officer. The primary dispute revolved around whether the police officer's use of the Taser was a lawful exercise of force in apprehending and detaining the applicant, who was described as mentally ill. The matter was heard in the Supreme Court of New South Wales, on appeal from a decision of the Local Court.

The legal issues before the court included whether the apprehension and detention of the applicant under the *Mental Health Act 2007* (NSW) were lawful, particularly in the absence of the police officer providing a warning and reasons for the apprehension, as would typically be required under common law principles of arrest. The court also considered whether the applicant was entitled to raise this point of unlawful apprehension or detention for the first time on appeal, and whether the respondent would be prejudiced by such a late introduction of the issue. The court was required to determine if reasonable force was exercised in the circumstances, and the application of s 201(3) of the *Law Enforcement (Powers and Responsibility) Act 2002* (NSW), which excludes codified requirements for warnings and reasons in certain circumstances.

The court reasoned that the applicant's failure to plead or raise the issue of unlawful apprehension due to a lack of warning or reasons in the Local Court proceedings meant that the respondent was denied the opportunity to make different forensic decisions. The court noted that the applicant had sought to rely on this new point on first-level appeal, and that the issue of warnings was only raised in supplementary submissions after the trial concluded. The court found that the respondent would be prejudiced by the denial of the opportunity to address this issue earlier. Furthermore, the court considered the magistrate's findings that the police officer's intention to apprehend and detain the applicant was clear, that the applicant resisted, and that providing a warning and reasons would likely have led to a violent reaction. The court concluded that the applicant had not established grounds for leave to appeal.

The summons for leave to appeal was dismissed, with costs awarded to the respondent. The court also extended the time for filing the summons seeking leave to appeal.