Bhattacharya v State of New South Wales & Anor

[2003] NSWSC 261

CITATION:	Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261
HEARING DATE(S):	25.3.03, 26.3.03, 27.3.03
JUDGMENT DATE:	4 April 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Mathews AJ
DECISION:	Action against the second defendant dismissed; verdict for the plaintiff against the first defendant in the amount of $15,000. Each party is to pay its own costs.
CATCHWORDS:	Action for false imprisonment against police officers and health workers - s 24 Mental Health Act - no relevant "offence" committed - detention by police officers unlawful - no case against hospital for actions of health workers - damages against first defendant on compensatory basis - not a case for aggravated or exemplary damages.
LEGISLATION CITED:	Crimes Act 1900 Mental Health Act
CASES CITED:	Reg v Howell (1982) QB 416 Spautz v Butterworth and Others (1996) 41 NSWLR 1
PARTIES :	Pranay Kumar Bhattacharya (Plaintiff) State of New South Wales (First Defendant) St Vincent's Hospital Sydney Limited (Second Defendant)
FILE NUMBER(S):	SC 20652/01
COUNSEL:	Plaintiff in Person Ms C Ronalds (First and Second Defendants)
SOLICITORS:	Plaintiff In Person Crown Solicitor (1st Defendant) Frances Allpress (2nd Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

4 April 2003

20652/01
Pranay Kumar BHATTACHARYA v
STATE OF NEW SOUTH WALES AND ANOR
JUDGMENT

1 HER HONOUR: The plaintiff in this matter has had extensive litigation before this Court. Appeals to the Court of Appeal and applications for special leave to appeal to the High Court have been conducted in a number of cases. In all these cases Mr Bhattacharya has appeared for himself without the benefit of legal representation. Some of his encounters with the Court’s registry and staff have been less than harmonious. As a result, Mr Bhattacharya has become well known to Court security staff and Sheriff’s officers.

2 On 16 November 2000 Mr Bhattacharya allegedly threatened to kill a member of the Court of Appeal registry. This threat was not conveyed to the police at the time. However four days later, on the afternoon of 20 November 2000, Mr Bhattacharya was observed by security officers to be acting in a manner they regarded as suspicious in the precincts of the Law Courts building. Accordingly the police were called. Constables Hall and Dodds from the Rocks Police Station arrived with a caged vehicle. They were told by security officers about the incident on 16 November and about the officers’ concerns in relation to Mr Bhattacharya.

3 Thereafter, a confrontation took place between Mr Bhattacharya and the two police officers. The details of this meeting I shall discuss later. It is central to the issues raised in this case. Suffice it to say here that the episode culminated in Mr Bhattacharya being taken in the caged vehicle to the Caritas unit at St Vincent’s Hospital. There he was psychiatrically assessed and found not to be mentally ill within the meaning of the Mental Health Act 1990. He was then allowed to leave.

4 This incident forms the basis of Mr Bhattacharya’s present claim. The proceedings have a lengthy history which it is unnecessary to detail at this stage. The State of New South Wales is sued in relation to the actions of the police officers. St Vincent’s Hospital Sydney Limited is sued in relation to the actions of the medical practitioners who examined Mr Bhattacharya. His claim against both is for false imprisonment. He seeks punitive damages in the amount of twenty million dollars.

5 Mr Bhattacharya’s claim against the two defendants must be dealt with separately, for quite different issues apply to each of them. For reasons which will be discussed later, I consider that no action can lie against the second defendant in relation to the actions of the health officers who examined Mr Bhattacharya. However in relation to Mr Bhattacharya’s case against the first defendant, there is a real issue as to whether the police officers were justified in apprehending Mr Bhattacharya and taking him to St Vincent’s Hospital. This is the nub of this case and I now turn to discuss it.

6 It is apposite first to discuss the legal background of the matter.

7 Section 24 of the Mental Health Act authorises a member of the police force to apprehend a person and take them to a hospital. That section provides as follows:

24. Detention after apprehension by police

(1) If a member of the Police Force finds a person in any place who appears to be mentally disturbed and the member of the Police Force has reasonable grounds for believing:
(a) that the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or
(b) 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 attempt to cause serious bodily harm to himself or herself,

the member of the Police Force may apprehend the person and take the person to a hospital (other than an authorised hospital).

(2) A member of the Police Force may apprehend any such person without the warrant of a justice

8 It is paragraph (1)(a) which is relied upon by the first defendant here. There is no suggestion that Mr Bhattacharya was at any risk of self injury.

9 Section 357E(a) of the Crimes Act 1900 is also relied upon by the first defendant to justify the fact that the two police officers forcibly searched a bag which Mr Bhattacharya was carrying at the time. This section provides as follows:

357E. Police may stop and search persons and vehicles
A member of the police force may stop, search and detain:
(a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence, or
…

10 In this regard the police say they reasonably suspected Mr Bhattacharya of carrying a weapon in order to carry out his earlier threat.

11 Reference was also made to s 352 of the Crimes Act. However that section authorises a constable to apprehend a member of the public in certain circumstances and take him or her before an authorised Justice to be dealt with according to law. This provision is clearly inapplicable to this case. Mr Bhattacharya was never taken before a Justice or charged with any offence.

12 Before I turn to discuss the events of 20 November 2000 I should make one preliminary point. The evidence indicates that at least one of the police officers who apprehended Mr Bhattacharya was told by security officers at the Supreme Court that Mr Bhattacharya had threatened to shoot a registry staff member four days earlier. Mr Bhattacharya denied making any such threat. However I did not allow either party to explore those earlier events. Indeed Ms Ronalds for the defendant did not seek to do so. The events of 16 November 2000 are material to these proceedings only in so far as they were reported to the apprehending police officers on the afternoon of 20 November. The fundamental focus in this case must be the state of belief of those police officers at the time they apprehended Mr Bhattacharya.

13 I turn now to discuss the evidence relating to the events of 20 November 2000.

14 Mr Bhattacharya swore a statutory declaration on 22 November 2000 which he forwarded that day to the Chief Executive Office of the Supreme Court. It was a very detailed statutory declaration and the following is a general summary only.

15 Mr Bhattacharya said that he spent much of the afternoon of 20 November at the Law School library where he was conducting research for litigation that he was involved in. Late in the afternoon he went out for a cup of coffee. At about 5 o’clock he was standing near the outdoor café not far from the Macquarie Street entrance of the Supreme Court, having been unable to get his coffee. He saw some activity amongst security officers inside the building. At about twenty past five he decided to return to the library which is in Phillip Street opposite the Law Courts building. When he reached Phillip Street he saw a “paddy wagon” parked in the street with two police officers nearby. As he approached the vehicle, the female of the two police officers demanded that he leave his bag on the footpath. She did so in an overbearing, bullying and arrogant manner, Mr Bhattacharya said. In due course he acceded to her request and put his brief case on the footpath. On request, he also took out his driver’s licence and handed it to the male officer. Both officers then searched his brief case. It is common ground that nothing was found of any relevance to these proceedings. In particular there was nothing resembling a weapon. At that point the female officer, Constable Hall, left them and went inside the Law Courts building. After she returned she asked Mr Bhattacharya where he was going. He replied that he was going to the library. The officers then returned his driver’s licence and bag and allowed him to leave. However Mr Bhattacharya said that before he reached the Law School building he realised that he had not had the coffee which he had wanted to have in the first place, so he left the building and started to cross the road. At that point Constable Hall said “Come here, we are taking you to the police station.” He was told to get into the paddy wagon or he would be thrown in. She said “we will charge you for trespass.”

16 Mr Bhattacharya climbed into the back of the police vehicle. Constable Dodds remained in the van and Constable Hall went into the Supreme Court building. She returned shortly afterwards saying “we are taking you to St Vincent’s Hospital.” They then proceeded to do so.

17 Mr Bhattacharya’s statement went on to describe what took place after his arrival at the hospital. He had a conversation with a man called “Kevin” and was asked a number of questions by two doctors, one of whom was Dr Geoff McDonald. In due course the doctors told him that he was free to leave. He thought that this was at about 7.40 pm. Mr Bhattacharya then made his way home.

18 It is this episode which constitutes the basis of Mr Bhattacharya’s action against the two defendants. He claims that he was treated like an animal, was deprived of his rights and was humiliated and degraded. As indicated, he seeks punitive damages in the sum of twenty million dollars.

19 Mr Bhattacharya gave evidence in which he described the events of 20 November in essentially the same terms as his statutory declaration.

20 The two police officers gave a different version of these events. Constable Narelle Hall said that she and Constable Dodds, in response to a radio call, arrived in the vicinity of the Law Courts building at about 5.30 to 5.35 that afternoon. She spoke to two Sheriff’s officers, Mr Leadbetter and Mr Stankoski, who told her that a man had been loitering around the area for the past fifteen or twenty minutes. This man, they said, had threatened to shoot a clerk in the Supreme Court on 16 November 2000. Constable Hall returned to the police truck and spoke to Constable Dodds. At about that time Mr Bhattacharya approached them. Constable Hall requested to search Mr Bhattacharya’s bag. He declined to let her do so but she insisted. Mr Bhattacharya, she said, became quite agitated but in due course handed over the bag. It contained nothing except paperwork. At much the same time, she said, Mr Bhattacharya handed identification to Constable Dodds who conducted a check on the police radio. This indicated that Mr Bhattacharya had warnings for psychiatric illness and had come under police notice on a number of occasions. She described Mr Bhattacharya at this stage as being very agitated. He was demanding that Constable Hall go into the Supreme Court and fix a court decision which had happened some time earlier. At that stage, she said, she decided that Mr Bhattacharya should be taken for psychiatric assessment. She told him that she was proposing to take him to Caritas Psychiatric Hospital for that purpose. At first he declined to come but eventually agreed, saying that he was going to sue her for ten million dollars.

21 Constable Hall said that Mr Bhattacharya eventually got in the back of the police vehicle. At that stage she went back to the security officers and took further details from them. She then returned to the vehicle and they drove Mr Bhattacharya to the Caritas unit at St Vincent’s Hospital.

22 At the hospital, Constable Hall was required to complete a form setting out her reasons for bringing Mr Bhattacharya for assessment. She did so in the following terms:

“On the 16/11/00 attended Supreme Courts, Sydney threatened to shoot a staff member of the registry. Sheriffs were informed. Has been seen loitering around on other occasions. Today was around the courts and the Wentworth chambers. Claims to have plenty court matters to be dealt with and he is never dealt with ‘fairly’. Has no purpose to be there. When I tried to speak to him he made no sense and kept talking about the justice system. He raised his voice considerably and became agitated.”

23 At ten past seven the next morning, 21 November 2000, Constable Hall wrote up her official report of the incident. She did so in the following terms:

“About 5:20pm on Monday November 20, 2000 the POI, Pranay BHATTACHARYA was observed loitering around the Supreme Courts, between Phillip and Macquarie Streets, Sydney by security staff STANKOSKI and LEADBEATER.
The POI is known by Sheriff and Security staff for troublesome and harassing behaviour. On the 16th of November 2000 the POI entered the courts and threatened to shoot a staff member in the registry. Sheriff and security staff dealt with the matter and did not inform police. Ever since this incident staff are aware not to let him inside the premises and to contact police if he is sighted.
On the day in question the POI was observed by security staff to carry a large black bag and circle the perimiter of the Supreme courts. The POI loitered around the Queens Court area continuously glaring at security staff. The POI did this for about 20 minutes before walking into The Wentworth Chambers and doing similar. The POI had no purpose to be there.
Upon police arrival the POI was standing across the road. Inquires with security staff revealed he has been involved in an unfavourable court decision and has since been a nuisance(sic) to staff and judges alike. The events on the 16th of November though, have alerted staff that he may be a serious threat.
Upon talking to the POI he instantly raised his voice and became verbally aggressive towards police. He claimed on several occasions he would sue police for 10 million dollars for not “fixing” his court decisions. He also displayed a dislike towards female police.
Police inquires revealed a history of mental illness and aggressive behaviour towards police. With this information police transported the POI to Caratas(sic) Psychiatric Hospital for assessment. The POI was treated by Doctor McDONALD. Police left the POI with the doctor and upon instruction by Doctor McDONALD police left, and the POI stayed in the care of medical staff.
No further police action is necessary at this stage. Police did attempt to inform the POI he is not allowed to enter the Supreme courts(sic) unless he had reasonable cause to be there.”

24 Constable Hall denied that she adopted a bullying attitude towards Mr Bhattacharya. She also denied that she told him that he was under arrest for trespass. Mr Bhattacharya was speaking very loudly, she said, his answers were not responsive to her questions, and she genuinely believed that he was suffering from a mental illness. She described the complete episode as lasting for about thirty minutes. During this time she spoke first to the security officers then to Mr Bhattacharya and then again to the security officers. She would have spoken to Mr Bhattacharya for about eight minutes before he entered the police van. She denied that there were two separate incidents, the first culminating with Mr Bhattacharya being allowed to move on.

25 Constable Hall said that she believed at the time that there was a need to remove Mr Bhattacharya from the area in order to prevent a breach of the peace. She said that she did not want to take him to a railway station to catch a train home because she believed that he might harm himself or others. She said “I have to stop a breach of the peace”. When asked, in this instance, whether there was a breach of the peace, she said “yes, there was, certainly.”

26 Finally in relation to Constable Hall, I should mention an affidavit sworn by Dr Geoff McDonald, the psychiatrist who examined Mr Bhattacharya at St Vincent’s Hospital. When they first arrived at the hospital, Dr McDonald asked Constable Hall what had happened. She answered in words to the following effect:

“I have detained this man under section 24 of the Mental Health Act. We were called to the Supreme court building by security staff who alleged [the plaintiff] had recently threatened a member of the staff, recently called out abuse in a court session and had been seen recurrently “loitering” near the premises. When I arrived at the Supreme Court and spoke with him, he made no sense and kept talking about the justice system. He raised his voice considerably and became agitated. I believe he has a psychiatric disorder and given that he had made threats to Supreme court staff I considered it appropriate to bring him to you for assessment.”

27 Constable Dodds, who accompanied Constable Hall to the Law Courts building, had little recollection of the incident. He was a provisional constable at the time and Constable Hall, as the senior officer, was the one who took charge. Constable Dodds remembered the van arriving in Phillip Street where they spoke to a Supreme Court security guard who pointed out Mr Bhattacharya. Later he said a conversation took place between Constable Hall and Mr Bhattacharya. He could not recall any details of the conversation, but Mr Bhattacharya became quite aggressive and agitated. A check was made over police radio which showed that Mr Bhattacharya might suffer a psychiatric illness. He was taken to the caged vehicle and placed in the back of it. Constable Hall then went back into the Supreme Court. After she returned they conveyed Mr Bhattacharya to St Vincent’s Hospital. The trip took about ten minutes.

28 The two security officers in the Supreme Court that afternoon were Stephen Leadbetter and Peter Stankoski. Their evidence essentially supported Mr Bhattacharya’s version of the afternoon’s events. It appears from Mr Stankoski’s evidence that their supervisor had earlier told them that Mr Bhattacharya had made threats to registry staff and had suggested that they contact the Sheriff if they were to see Mr Bhattacharya in the precincts of the Court. At about 5.30 that afternoon, Mr Stankosky said he was closing the building when he noticed Mr Bhattacharya standing in Macquarie Street outside the judges’ entrance to the Court. He asked Mr Leadbetter to confirm that it was in fact Mr Bhattacharya. Mr Leadbetter confirmed this from a photograph of Mr Bhattacharya which he had been given, and Mr Stankoski went to contact the Sheriff’s office. In due course he succeeded in doing so, and they in turn called the police. In the meantime, Mr Leadbetter watched Mr Bhattacharya move around from Macquarie Street towards Queens Square where he again stood outside the court building. After a few minutes he moved around to Phillip Street, on the western side of the court building. At about that time the police van arrived and parked in Phillip Street opposite the court. The police came into the building and asked the officers what had happened. Mr Stankoski said that he thought he spoke to a female officer. He told her about the threats in the building and said that Mr Bhattacharya had been standing outside the judges’ entrance.

29 At this point I should separately describe the versions given by the two security officers. Mr Leadbetter said that he saw a “minor altercation” between Mr Bhattacharya and the female police officer when she asked to see the contents of his bag. After that, he said, he believed that Mr Bhattacharya was told to go on his way. The police van left but then returned a short time later. Mr Leadbetter did not see any altercation between Mr Bhattacharya and the police after the return of the vehicle, but he saw someone, presumably Mr Bhattacharya, in the back of it. At about the same time the police officer came and told him that Mr Bhattacharya was to be taken away for psychiatric assessment.

30 Mr Leadbetter’s evidence was supplemented by a statement he made on 20 November, shortly after the incident. In his report he described a “long exchange” between Mr Bhattacharya and the two officers outside the court. Subsequently, he said, Constable Hall came and took particulars about himself and Mr Stankoski. His statement proceeded

“We were told by Constable Hall that Mr Bhattacharya would be “moved on” and that if he returned he would be arrested and charged with trespass. A few minutes later the police car re-appeared in Phillip Street and at approximately 1800 hours Constable Hall came into the building to obtain phone numbers from …………….. and myself and Constable Hall informed us that Bhattacharya was in the police vehicle and that he was to be taken away for psychiatric evaluation.” (blanks whited out in original statement)

31 Mr Stankoski described the police as talking to Mr Bhattacharya for a while and then searching his bag. After that, he said, he was called back to the desk inside the Court building. One of the police officers came inside and told them that Mr Bhattacharya had been moved on. If he were to come back, they were told, he would be charged with trespass. Not long afterwards the police returned and said that they had picked up Mr Bhattacharya and were taking him to the psychiatric ward.

32 Mr Stankoski also wrote a report on 20 November which was essentially consistent with the evidence he gave.

33 There can be little doubt from the evidence of the security officers that there were two separate incidents involving Mr Bhattacharya and the police officers. This is made clear by a running sheet which the officers kept. An entry at 17.20 referred to Mr Bhattacharya standing outside the building near the judges’ entrance acting in a “suspicious manner”. It noted that sheriff’s control office had been contacted. At 17.50 the following entry was made in Mr Leadbetter’s handwriting:

“Const Hall and Const Dodds from “Rocks” police spoke to Mr Bhattacharya and Const Hall spoke to …………. and myself asking what we had observed and what we knew of Mr Bhattacharya. We were advised by Const Hall that he would be moved on and that if he returned he would be arrested and charged with trespass if he returned (sic). Police left at 1755. (blanks whited out in original statement)

34 An entry in Mr Stankoski’s writing says “1800: off duty”. Immediately afterwards a further entry, also at 1800, was entered in Mr Stankoski’s handwriting:

“Police returned to inform us that they have taken Mr Bhattacharya to the psycho ward. Showed Const Hall log about incident on 16.11.00. Police left site.”

35 At this stage it is apposite to return to s 24 of the Mental Health Act. As relevant here, it authorises a police officer to apprehend a person and take him or her to a hospital if the officer has reasonable grounds for believing

• that the person is committing or has recently committed an offence and;

• it would be beneficial to the welfare of the person that he or she be dealt with in accordance with the Mental Health Act rather than otherwise in accordance with law.

36 Ms Ronalds, who appeared for both defendants, very fairly conceded that, in relation to the first of the above requirements, the offence which the police officer believes the person is “committing or has recently committed” must be such as would enable the officer to arrest the person forthwith, or at least initiate the process of charging the person. When seen in this light, it is clear that any offence which Mr Bhattacharya might have committed on 16 November 2000, when he allegedly threatened a registry officer, would not fall within the category of a recently committed offence so as to justify apprehension under this section. One must then ask, what offence did the police officers believe Mr Bhattacharya was committing or had recently committed? Or, to be more accurate, what offence did they have reasonable grounds for believing that he was committing or had recently committed? There is no suggestion that Mr Bhattacharya had trespassed upon private property. Nor is there any suggestion that he was creating a disturbance when he moved around the Supreme Court building. Once the police officers had searched his bag and found that it contained no weapons, there was no basis for believing that he might have been intending to carry out his previous threat.

37 The only offence suggested by Constable Hall was that Mr Bhattacharya might have been committing a breach of the peace. She said ”I have to stop a breach of the peace.” A little later she said

“I thought that leaving him right there, he would only go and try and get back in and I didn’t want there to be any more problem. The best way to stop that is to remove somebody from the area which is what I did. I took him away from the area to stop the breach of the peace.”

38 Given that Mr Bhattacharya had not sought at any time that afternoon to enter the Supreme Court building, it is difficult to understand the basis of Constable Hall’s concern that he would “try and get back in”. Nor can there be any suggestion that Mr Bhattacharya had committed a breach of the peace or was in danger of doing so. It appears that there is still an offence at common law of committing a breach of the peace, which may, in certain circumstances, justify an arrest by a peace officer. Somewhat surprisingly, given the antiquity of the concept of a “breach of the peace”, there is a dearth of authority about it. For present purposes the following description given by Watkins LJ in Reg v Howell [1982] QB 416 at 427 will suffice.

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or other reasonable apprehension of it taking place that a constable or anyone else, may arrest an offender without warrant.”

39 It is abundantly clear that Mr Bhattacharya’s actions on 20 November 2000 fell far short of anything that could possibly amount to a breach of the peace. There being no suggestion that he was committing or had recently committed any other offence, the defendant has failed to satisfy the first limb of s 24 of the Mental Health Act. It follows that Mr Bhattacharya’s apprehension and detention by Constables Hall and Dodds was unjustified and unlawful.

40 I shall discuss the issue of damages shortly. But first I should briefly deal with Mr Bhattacharya’s claim against the second defendant.

41 It is not clear how long Mr Bhattacharya was retained at St Vincent’s Hospital. It would appear to have been in the order of two hours. During this time he was assessed by Dr McDonald during a consultation which lasted approximately forty minutes. Dr McDonald said that Mr Bhattacharya was seen very promptly after his arrival. Indeed the doctor later described it as “close to a miracle” that a person could be brought into the hospital under s 24 detention and be kept for only two hours, given that St Vincent’s Hospital provides a very busy public health service and that he was the psychiatrist on call for the whole of the inner city Mental Health Service.

42 There is therefore no basis for suggesting that Mr Bhattacharya’s detention by the second defendant was in any way unduly prolonged.

43 Sections 28 and 29 of the Mental Health Act are relevant to the second defendant’s obligations in the circumstances which pertained here. They provide as follows:

28 Refusal to detain

The medical superintendent must refuse to detain a person under this Division if the medical superintendent is of the opinion that the person is not a mentally ill person or a mentally disordered person.

29 Examination on detention at hospital

(1) A person taken to and detained in a hospital under this Division must be examined, as soon as practicable (but not more than 12 hours) after the person's arrival at the hospital, by the medical superintendent.
(2) A person must not be detained (except as provided by section 37 or 37A) after the examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person.
(3) A medical practitioner on whose certificate or request a person has been admitted to a hospital must not examine the person for the purposes of this section.

44 There can be no suggestion in my view of any unlawful or otherwise untoward behaviour by anyone employed by the second defendant. There was a statutory obligation to examine Mr Bhattacharya after his arrival at the hospital. This took place as soon as practicable. After Dr McDonald concluded that Mr Bhattacharya was not mentally ill or mentally disordered he was allowed to leave. Mr Bhattacharya seems to have a complaint about the terms of Dr McDonald’s assessment, and particularly that part of it which indicated that the diagnosis was unclear and that there was a possibility of a delusional disorder or paranoid schizophrenia. But such a criticism can have no relevance here. Mr Bhattacharya’s claim against the hospital is for false imprisonment, not for negligence or defamation.

45 Mr Bhattacharya’s action against the second defendant will therefore be dismissed. I shall discuss the question of costs later.

46 I turn now to discuss the matter of damages. And I should preface this discussion by saying that so far as Mr Bhattacharya is concerned, the dismissal of his action against the second defendant will have no relevant effect upon damages. It was the police officers’ wrongful apprehension of Mr Bhattacharya in the first place which led to his detention at St Vincent’s Hospital for the purpose of psychiatric assessment. Accordingly, the “imprisonment” for which Mr Bhattacharya will receive compensation will be the whole period of his detention, from when he was first apprehended by the police officers until he was released from the second defendant’s custody.

47 Moreover in assessing compensatory damages in actions for false imprisonment the court can have regard to the actions of the defendant up to the time of the verdict. This is because the essence of the damage suffered by a plaintiff in these cases is injury to feelings, an injury which can readily be exacerbated by the conduct of a defendant, for example, in repeating the falsehood which led to a plaintiff’s unlawful imprisonment in the first place. To this extent, the matters to be taken into account in assessing ordinary compensatory damages in false imprisonment cases can sometimes also be relevant to the award of aggravated compensatory damages, (which I shall henceforth describe simply as “aggravated damages”). The blurring of the distinction between these two heads of damages in cases of this nature was discussed by Clarke JA in Spautz v Butterworth and Others (1996) 41 NSWLR 1. Clarke JA in his judgment embarked on a detailed and very helpful analysis of the case law on this subject. His Honour concluded as follows (pp 17):

“The necessary conclusion is that where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person’s feelings. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fide nor justifiable.”

48 In this case Mr Bhattacharya has sought not only aggravated damages but also punitive or exemplary damages in relation to the actions of the police officers. He submitted that the officers deliberately misused their authority and treated him in a bullying, arrogant and unjustified manner. Their conduct showed a conscious and contumelious disregard for Mr Bhattacharya’s rights, he submitted. As such their conduct was deserving of punishment which should be reflected in the award of damages.

49 In order to determine whether aggravated or exemplary damages might appropriately be awarded in this case it is necessary to return to the events of 20 November 2000, with a particular emphasis on the actions and motivations of the two police officers, particularly Constable Hall.

50 Mr Bhattacharya described Constable Hall as adopting a bullying manner from the outset. The confrontation was commenced, he said, by Constable Hall saying: “Leave the bag here and step back.” Mr Bhattacharya answered that there was nothing in it, only paperwork. Constable Hall then said: “I am talking to you, don’t talk back to me/don’t talk over me as you do in your own country. I am talking to you.”

51 Shortly after that the officers searched Mr Bhattacharya’s briefcase. Not long afterwards Constable Hall went into the Law Courts building, apparently to talk to the security officers. On her return she said: “I have got their side of the story, where are you going?” He replied: “To the library.” It was at this point that he was allowed to leave. However shortly afterwards he was again apprehended and told by Constable Hall that he would be charged for trespass.

52 Constable Hall denied a number of these allegations. She said that she treated Mr Bhattacharya with courtesy and that she never acted in a high handed, bullying or arrogant manner. She said that there was only one confrontation with Mr Bhattacharya, thereby implicitly denying that Mr Bhattacharya was permitted to leave and was later re-apprehended. Similarly she denied telling him that he would be charged with trespass. As indicated, however, the evidence of the two security officers essentially supported Mr Bhattacharya’s version and contradicted that of Constable Hall, at least in relation to the last two matters. The security officers were not, however, in a position to comment on the most important matter, namely Constable Hall’s demeanour when she spoke to Mr Bhattacharya. They were too far away to hear any of the exchange between them.

53 In general I accept Mr Bhattacharya’s evidence on all these matters. In particular I accept that Constable Hall initially addressed him in an overbearing and bullying manner. This is clearly relevant to the extent of injury to Mr Bhattacharya’s feelings and therefore to the extent of his compensatory damages. But it would not on its own justify an award of aggravated damages.

54 The essence of aggravated damages, according to Clarke JA in Spautz, is that the conduct of the defendant was “neither bona fide nor justifiable.” The conduct which must be examined in this case is the conduct of the police when they physically detained Mr Bhattacharya and placed him in the police vehicle. This conduct, on my finding, was not justifiable under s 24 of the Mental Health Act. The real issue therefore is whether it was bona fide. In the context of this case, the enquiry must be directed to whether the police officers genuinely (albeit wrongly) believed that the circumstances justified their detention of Mr Bhattacharya.

55 I am not prepared to make a finding adverse to the police officers on this aspect of the matter. Both Constables Hall and Dodds described Mr Bhattacharya as becoming extremely agitated during the course of their confrontation, and acting in an increasingly irrational manner. I have had the opportunity myself of observing Mr Bhattacharya’s behaviour under stress. He is, in my view, a very intelligent man, but he became quite agitated during Ms Ronalds’ cross-examination of himself, and even more so during his own cross-examination of Dr McDonald. Indeed Dr McDonald observed in his evidence that there was a similarity between the more extreme aspects of Mr Bhattacharya’s behaviour in court and his presentation when he first arrived at St Vincent’s Hospital. Dr McDonald described Mr Bhattacharya, when he first presented, as

“Upset, distressed, agitated and very, very preoccupied with themes of injustice in a paranoid fashion, I thought, and as the interview progressed, Mr Bhattacharya’s demeanour settled. Our interview became, I thought, more co-operative.”

When asked what signs of agitation Mr Bhattacharya exhibited, the doctor answered:

“Raised voice, rapid speech, indications as we have seen during the course of this morning’s evidence and difficulty interrupting and multiple questioning and some signs of distress and anger at being brought in this fashion.”

56 Mr Bhattacharya clearly has a strong sense of justice. He saw himself as the victim of an injustice when Constable Hall first approached him and demanded to search his bag. On all accounts he reacted in an extreme fashion, becoming excessively anxious and agitated. Constable Hall said that Mr Bhattacharya’s behaviour gave her genuine concern as to his mental health. She said, in answer to a question in cross-examination

“At the time I strongly believed that you may (I am not a doctor so I couldn’t be sure) but I really believed that you may have been suffering from a mental illness. I was taking, acting in good faith, taking you to a doctor to assess you, because I’m not qualified to do that.”

57 It is to be noted here that Constable Hall’s description of Mr Bhattacharya’s agitated behaviour was not significantly different from Dr McDonald’s account of how he presented when he first arrived at the hospital. I accept, therefore, that Mr Bhattacharya became increasingly agitated and gave the appearance of irrationality during the confrontation between himself and the police.

58 It would appear from Constable Hall’s evidence that she had a misguided and erroneous view as to the effect of s 24 to the Mental Health Act. She appeared to believe that detention under that section was justified merely by virtue of a person exhibiting irrational behaviour, thereby indicating the possibility of mental illness. That a police officer should have such an erroneous view of such an important provision (being a provision affecting the liberty of the subject), is a matter of real concern. But I cannot find that her conduct was lacking in bona fides. In my view Mr Bhattacharya’s agitated demeanour led to her genuinely forming the view that he might be mentally ill and that he should be psychiatrically assessed. The fact that this irrational behaviour was itself a product of the overbearing manner she adopted in her dealings with Mr Bhattacharya is a matter which sounds in compensatory damages. It does not, however, affect the bona fide nature of Constable Hall’s (erroneous) belief that she was entitled to detain Mr Bhattacharya for the purpose of psychiatric assessment.

59 My conclusion therefore is that this is not a case for the award of aggravated damages. This being the case, there can be no question of exemplary or punitive damages.

60 Compensatory damages in false imprisonment cases are very much at large. Ms Ronalds took me to a number of cases where relatively small amounts of damages were awarded in cases which, on their face, resulted in the plaintiff suffering greater indignities than Mr Bhattacharya suffered here. The whole episode, on the evidence, lasted for approximately three hours. Nevertheless, the indignity, degradation, humiliation and distress which Mr Bhattacharya suffered during that short period have had its reverberations ever since. Mr Bhattacharya’s intense sense of grievance was demonstrated by the sometimes passionate manner in which he presented his case in court.

61 Mr Bhattacharya has an unrealistic view as to the extent of damages which can be awarded in cases of this nature. Even if I had acceded to his submission that this is a case for the award of aggravated or exemplary damages, the amount which he continued to press, namely twenty million dollars, is a fanciful one which bears no relation to the harm suffered or the wrong done.

62 Having regard to all the factors of this case I consider that an appropriate award of compensatory damages is $15,000.

63 I turn finally to the question of costs.

64 Mr Bhattacharya’s damages in this case are significantly less than the amount referred to in Pt 52A r 33 of the Supreme Court Rules. In the normal course of events, therefore, he would not be entitled to payment of his costs. Accordingly I do not propose to order that the first defendant pay Mr Bhattacharya’s costs. They would, in any event, be minimal, given that he has represented himself throughout the entire proceedings.

65 An issue was raised by Ms Ronalds relating to the costs of the second defendant. She submitted that, as Mr Bhattacharya had failed in his claim against St Vincent’s Hospital, he should pay at least part of the defendants’ costs of these proceedings. However an analysis of the evidence in the case indicates that very little if any of the evidence was solely referable to Mr Bhattacharya’s claim against the second defendant. Certainly Dr McDonald was called to give evidence, but virtually the whole of his evidence was equally referable and relevant to Mr Bhattacharya’s claim against the first defendant. Both defendants have been jointly represented. I can therefore see no reason to order that Mr Bhattacharya pay any part of the second defendant’s costs.

66 I therefore propose to order that each party pay its own costs of these proceedings.

67 I enter a verdict for the plaintiff in the amount of $15,000. Each party is to pay its own costs.

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Last Modified: 04/09/2003