Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital)

[2016] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

ILLERT v NORTHERN ADELAIDE LOCAL HEALTH NETWORK INC (MODBURY HOSPITAL)

[2016] SASC 186

Judgment of The Honourable Justice Hinton

2 December 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TORTS - TRESPASS - TRESPASS TO THE PERSON - WHAT CONSTITUTES AND DEFENCES THERETO

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY

Appeal against dismissal of claim for damages for assault and battery.

The appellant issued civil proceedings in the Magistrates Court against the respondent, the corporate entity operating Modbury Hospital, claiming damages for injuries said to have been caused to the appellant during an incident occurring at the hospital. The appellant alleged he sustained injuries in an assault by two members of the hospital’s security staff, leaving him with a residual disability impacting upon his ability to work.

The appellant attended the hospital with his homemade mobility device, which has pedals and four wheels and is powered by a small combustion engine. The appellant was told that he was not permitted to bring the device into the hospital as it posed a real danger due to it being powered by a combustion engine.

The Magistrate dismissed the claim on the basis that although the security officers committed a battery on the appellant, she held that the hospital was entitled to rely on the defence of necessity due to the device posing a serious and imminent danger, and in the alternative, that the appellant was a trespasser in relation to whom the security staff were entitled to take the necessary action to eject. The Magistrate held that the response of the security officers was not disproportionate because of the dangers posed by the presence of the device, and thereafter, because of the aggressive and agitated manner in which the appellant was behaving.

On appeal the appellant challenged the Magistrate’s finding that the force used to restrain him was reasonable and proportionate to any threat of danger that he posed. The appellant also challenged the finding that he was a trespasser and, if he was, that reasonable force was used to eject him. Further, the appellant challenged the adequacy of the Magistrate’s reasons in concluding that the defences of necessity and the ejectment of a trespasser were made out.

Held, dismissing the appeal:

1.       The episode constituted one interconnected series of events. It is unrealistic to conclude that upon the security officers removing the device from the appellant, the conceded risk of imminent peril was at an end.

2.       It was open to the Magistrate to be satisfied that the action taken by the security officers was reasonable to avert imminent danger and that such action was proportionate. It was also open to the Magistrate to conclude that there was no reasonable alternative course of action available to the security officers.

3.       The appellant, knowing that he was forbidden from bringing the device into the hospital and it being established on the evidence before the Magistrate that he was forbidden, the appellant had no licence to enter the hospital with his device and was a trespasser.

4.       The findings made by the Magistrate were open on the evidence. The appellant has demonstrated no error in the approach of the Magistrate to the facts or the law which would justify the intervention of this Court.

Supreme Court Civil Rules 2006  (SA) r 282, r 286, referred to.
Proudman v Allen [1954] SASR 336; New South Wales v McMaster (2016) 328 ALR 309, applied.
Bayley v Police (2007) 99 SASR 413, distinguished.
Moore v Hussey (1609) Hob 93; Kirk v Gregory (1876) 1 Ex D 55; Cope v Sharpe (No. 2) [1912] 1 KB 496; Cresswell v Sirl [1948] 1 KB 241; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; Southwark London Borough Council v Williams [1971] 1 Ch 734; R v Rogers (1996) 86 A Crim R 542; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; Taiapa v The Queen (2009) 240 CLR 95; R v Latimer [2001] 1 SCR 3; Dehn v Attorney–General [1988] 2 NZLR 564; Ashley v Chief Constable of Sussex Police [2008] 1 AC 962; Haddrick v Lloyd [1945] SASR 40; Coco v The Queen (1994) 179 CLR 427; Kuru v New South Wales (2008) 236 CLR 1; Halliday v Nevill (1984) 155 CLR 1; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Barker v The Queen (1983) 153 CLR 338; Wainohu v New South Wales (2011) 243 CLR 181; Pettitt v Dunkley [1971] 1 NSWLR 376; Machado v Underwood [2016] SASCFC 65; Fox v Percy (2003) 214 CLR 118; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

ILLERT v NORTHERN ADELAIDE LOCAL HEALTH NETWORK INC (MODBURY HOSPITAL)
[2016] SASC 186

Magistrates Appeal: Civil

HINTON J.

Introduction

1. In the early afternoon of 1 December 2009, Mr Illert went to Modbury Hospital to get a new face mask for the nebulizer he used. He was sixty-six years of age and suffered from a number of health issues including asthma, high blood pressure and diabetes. Mr Illert travelled to the hospital using his homemade mobility device, which is powered by a small combustion engine.

2. Upon arriving at the hospital, Mr Illert walked his device inside where he was intercepted by security officers. They advised him that he could not bring the device into the hospital. Mr Illert took exception to the way in which he was treated by the security officers. Nonetheless, upon one of the officers agreeing to keep an eye on his device, he agreed to it being parked just outside the entrance. This was done and Mr Illert then made his way to the Emergency Department where he got the face mask he required. 

3. Whilst in the Emergency Department, Mr Illert spoke to the hospital’s Consumer Adviser. He informed her that he was unhappy with his treatment by the security officers as he had been told to leave his device outside. The Consumer Adviser accompanied Mr Illert to the rear entrance of the Emergency Department where his device was parked. She inspected the device and then informed him that she considered the advice that he had received from the security officers entirely reasonable.

4. Within the hospital, Mr Illert’s device posed a risk to the safety of people present. This was because the combustion engine powering the device had the potential to ignite gases used and emitted in the hospital. Further, the device was of a size that it presented as a hazard to other hospital users.

5. Mr Illert remained discontent. He asked to speak to the general manager of the hospital, but was informed that she was not available. It was, however, suggested that he could lodge a complaint that would be investigated.

6. Mr Illert then left the Emergency Department only to make his way to the hospital’s main entrance, where he knew the administration offices to be, in order to make a complaint. This meant exiting the hospital and walking some distance around the building before re-entering. Mr Illert again entered with his device, and again he was intercepted by security. This time, however, his device was forcefully taken from him and he was taken hold of in an effort to prevent him proceeding into the hospital further. As he was held he dropped to the ground. There he was restrained until he agreed to get up and sit on a nearby couch. The police were called but no charges were laid in relation to the incident. Mr Illert was not examined by medical staff at the hospital. He left and went home.

7. Subsequently, on 19 November 2012, Mr Illert instituted proceedings in the Magistrates Court against the Northern Adelaide Local Health Network Inc (the Network), the corporate body that operated the hospital, for the assault committed upon him by the Network’s servants or agents when he entered the hospital with his device on the second occasion. He sought damages in the amount of $28,490.00 on account of injuries sustained to his chest, right arm and shoulder in consequence of the assault that required treatment, caused him pain and discomfort, and interfered with his ability to work.

8. The matter proceeded to trial. Mr Illert was unsuccessful in that the presiding Magistrate found that the action taken by the security officers was necessary for the preservation of the safety of the people present at the hospital and reasonable and proportionate to the threat posed by Mr Illert’s actions. The Magistrate also found that Mr Illert was a trespasser in relation to whom the Network was lawfully entitled to use and did use reasonable force in taking action to eject.

9. Mr Illert now appeals. He contends, primarily, that once his device was taken from him no longer was there in existence a state of imminent peril justifying the use of force against him and no longer was he a trespasser liable to be ejected using such force as was reasonably necessary to do so. Consequently the Magistrate erred in finding the defences of necessity and the reasonable use of force to eject a trespasser made out.

10. In my view the appeal should be dismissed. My reasons follow.

    The evidence and the learned Magistrate’s reasons

11. Mr Illert gave evidence at trial. He also called two doctors and a physiotherapist who gave evidence of his injuries and their consequence for his functioning. Neither the evidence of the doctors nor the physiotherapist assists in resolving the complaints made in this Court. Accordingly, I make no further reference to that evidence.

12. The Magistrate summarised Mr Illert’s evidence as follows:

    [10]On 1 December 2009, he attended the Emergency Department (ED) at the Hospital to obtain a face mask for his nebulizer, used for the treatment of his asthma. When he arrived at the entrance to the ED, he alighted from the Device and wheeled it in through the entrance. As he entered, on the right-hand side there was an office with a sliding glass window where two members of the security staff were stationed. One of the officers started ‘waving his hands around and shouting and yelling’ but because he was behind the plate glass window, he could not hear him.

    [11]He then came out from the office and was abusive towards Mr Illert and shouted ‘Get that fucking thing out of here’. Mr Illert expressed his concerns that the Device might be stolen and the larger of the two security officers then spoke to him and offered to keep watch over it, if it was parked outside, while he went to the ED.  Mr Illert was happy with this arrangement, left the Device outside and went to the ED to collect the face mask.  This took approximately 10 to 15 minutes.

    [12]When he left the ED he was very unhappy at the treatment he had received from the smaller of the two security officers.  He decided to make a complaint.  He left the Hospital, moved on to Smart Road and travelled another 100 metres or so to the other side of the Hospital, and entered through the Main Entrance, intending to go to the Administration area to make the complaint.

    [13]He had moved about 20 or 30 metres inside when he heard ‘the thunder of feet’ behind him and saw ‘the little security guard’. Once again he swore at him ‘with abusive and foul language’. He stated to Mr Illert ‘I will fucking tear it apart’ and he pulled the Device away from him. Mr Illert told the Court he let go of the Device and headed towards the door leading to the Administration area. The two security officers came up and tried to grab each of his arms.  He could not recall anything being said.  He did not want to struggle and fight so he lay down on the ground to show he was not in a combative mood.  He did not strike or kick anyone.  When he lay down on the ground the two security officers were on either side of him. The smaller security officer was holding his right arm and the larger security officer was holding his left arm.  The smaller security officer did a ‘judo hold’ and put his knee on his elbow joint and tried to pull his arm contrary to its natural movement.  It was very painful and Mr Illert told the Court he twisted his arm against the security officer’s knee so he could not break the elbow.  He succeeded in relieving pressure on the elbow. The smaller security officer kneed him in the stomach at least five times. He was also punching him. He told him to stop but the security officer kept doing it.

    [14]He saw a number of people walking past and heard a door burst open and some people from management came out.  They told the security officers to let him go and they sat him up on the couch.

    …

    [16]In cross-examination, he told the Court he understood from security that he was not to bring the Device into the Hospital, however, he considered this was in breach of the Equal Opportunity legislation and not legal.  He did not raise this with the security officers. He chose to ignore the directions of the security staff, believe in the Equal Opportunity legislation and bring the Device into the Hospital again. He denied the security officers had told him the Device constituted a danger.

    [17]He denied he went to a different entrance of the Hospital in the hope he would not meet the security officers again.  He told the Court it was not practical to go from the ED to the administration section of the Hospital.

13. Four people, each working at the hospital on 1 December 2009 and each of whom came into contact with Mr Illert on that day, gave evidence for the Network – the security officers, Mr Abdulsamed and Mr Worrell, the hospital Clinical Service Co-ordinator, Ms Lewington, and the Consumer Advisor, Ms Matthias. Further, CCTV footage of both interactions between Mr Illert and the security officers was tendered. That footage, however, did not capture sound and was not continuous with the consequence that the only evidence of what was said generally and what occurred during the gaps in the footage was that of Mr Illert, Mr Abdulsamed and Mr Worrell, and to a lesser extent Ms Lewington. In this regard the credibility and reliability of each of Mr Illert, Mr Abdulsamed and Mr Worrell, in particular, was in issue.

14. The evidence of Ms Lewington and Ms Matthias was largely not in dispute. Ms Matthias was the Consumer Adviser who spoke to Mr Illert in the Emergency Department after he had first spoken to Mr Abdulsamed and Mr Worrell and after he left his device parked outside the entrance.

15. Ms Lewington was the Clinical Services Co-ordinator. She was in the administration area when she saw Mr Illert trying to take his device through to the general manager’s office. She called a “code black” with the consequence that Mr Abdulsamed and Mr Worrell attended and forcibly removed the device from Mr Illert before restraining him from making his way further into the hospital.

16. Ms Matthias also gave evidence of being summonsed to the administration area some forty-five minutes or so, she estimated, after she first spoke to Mr Illert. When she arrived the security officers had restrained Mr Illert, he was unhappy and the police had been called. She spoke to him. He indicated he wanted to lodge a formal complaint. She told him he was free to do so, but nonetheless moved with him to the front entrance as she wanted to get the device outside. Mr Illert then left.

17. As mentioned, Mr Abdulsamed and Mr Worrell were the security officers who intercepted Mr Illert on the two occasions to which reference has already been made. The forensic contest at trial focussed primarily upon the clash between the evidence of Mr Illert on the one hand and Messrs Abdulsamed and Worrell on the other and, in particular, as foreshadowed, those aspects not corroborated by the CCTV footage.

18. The Magistrate summarised the evidence of Mr Abdulsamed and Mr Worrell as follows:

    Youssef Abdulsamed

    [18]In December 2009, he was working with ISS Security at the Modbury Hospital as a security officer. He had been working there for a couple of years. On 1 December 2009 he had been sitting in the Security Office. This office has a sliding glass window fronting the corridor near the rear entrance. While he was sitting down, he saw Mr Illert pushing the Device through the rear entrance of the ED where the ambulances stop. A copy of the Floor Plan of the Ground Floor of the Hospital was tendered (Exhibit D1). No one is allowed to enter with such a device. He left the office to speak to Mr Illert. He tried to stop him by speaking to him and telling him he was not permitted to bring the Device into the Hospital. Mr Illert was highly aggressive, took no notice and started swearing and threatening him. He and his partner, Ian Worrell, convinced Mr Illert to put the Device outside. Mr Illert wanted to leave the Device just near the door on the outside and they told him he was not permitted to do that. Mr Illert then left and he assumed the matter was finished.

    [19]He encountered Mr Illert again that day. There was no security station at the Main Entrance and they saw him on the security cameras again bringing the Device into the Hospital moving towards the Administration area (Exhibit D1). They went to intercept him and prevent him from doing so.

    [20]He told the Court he first went to Ms Deb Lewington, the Nurse Manager, to let her know Mr Illert had returned. She had earlier requested she be informed should he return. He then ran to Mr Illert with Mr Worrell and Ms Lewington. At that stage, Mr Illert was well advanced and was close to the Administration area. He informed Mr Illert he was not allowed to bring the Device into the Hospital but he totally ignored him and kept going. The Device ran over his foot and it was painful. He took the Device from him and moved it off to the side.

    [21]Mr Illert became highly aggressive and was swearing and charging towards the Administration area. He and Mr Worrell restrained Mr Illert by taking hold of him with their hands and, as soon as they touched him, he fell to the floor ‘like a dead body’. He was holding Mr Illert down with his knee. He did not apply any pressure. At no stage did he forcefully knee Mr Illert or twist his arm, elbow or shoulder joint. When his feet were pointing towards the door Mr Illert started kicking and in fact kicked him in the genitals. He held his knee to keep Mr Illert still and to stop him from kicking them. Mr Illert also spat at him and he had to cover his face. All the time he was telling Mr Illert he was not permitted to enter the Administration area.

    [22]Ms Lewington had called a Code Black and the Code Black Team then arrived and took over. They then spoke to Mr Illert when he was sitting on the couch. Mr Illert did not suffer any injury, nor was he in any pain. An Incident Report was created after the incident although he could not remember whether he or Mr Worrell wrote it (Exhibit D4).  He had never seen Mr Illert before. He had been unaware Mr Illert wanted to make a complaint. He would never have stopped him from doing that as everyone has the right to do so.

    [23]In cross-examination, he maintained he had not been aggressive and that he had been very polite to Mr Illert. He could not remember how many times Mr Illert had tried to kick him, although he had spat on him and kicked him in the groin. He was not aware of any damage being caused to the Device as all he had done was to move it to the side.

    Ian Worrell

    …

    [25]He was in the Security Office in the ED and saw Mr Illert attempt to enter the Hospital with the Device. He asked Mr Illert not to bring it inside due to safety concerns. It was not permissible to bring a combustion engine into the Hospital. He had checked with the Nurse Manager. The Device was bigger than a wheelchair and a number of frail people on frames attend the Hospital. It presented an unnecessary danger. He had explained to Mr Illert why he could not bring it in.

    [26]He was present with Mr Abdulsamed. He cannot recall the exact words used by Mr Abdulsamed. He was talking to Mr Illert through the window and Mr Abdulsamed came out of the office to speak to him. He could not remember the exact words he used when speaking to Mr Illert, but he told him he could leave the Device outside, and he would watch over it. He explained to Mr Illert that the Device had a combustion engine and as the Hospital produces a lot of raw oxygen, it was a risk to have the Device inside. Mr Illert was concerned that the Device would be stolen. He was very frustrated and he did not like being told he could not bring the Device inside. He was argumentative and unhappy.

    [27]He asked Mr Illert not to leave the Device outside in the doorway as it was on a slight slope.  He suggested he left it near the wall and they would watch it. Mr Illert was still quite irritated but he believed he complied.  He kept an eye on the Device as promised. He could not recall if he stayed at the door or went back to the Security Office. He remembered seeing Mr Illert leave and he did not think he had a further discussion with him. Mr Abdulsamed had been polite, courteous and professional in his dealings with Mr Illert.

    [28]He was in the Security Office and noticed on the monitor that Mr Illert was bringing the Device through the Main Entrance of the Hospital. He had gone all the way around the Hospital. Mr Abdulsamed and he went to intercept Mr Illert outside the Administration door near the lounge. They asked him what he was doing and reminded him that he had been asked not to bring the Device inside the Hospital. He said he was going to the Administration area to make a complaint.

    [29]They asked Mr Illert to take the Device outside but he refused and continued to proceed towards the Administration area. They told him they would take the Device outside and he could wait for someone from Administration to come outside. Both he and Mr Abdulsamed were speaking to Mr Illert. He refused to stop and as a consequence they had to restrain him.

    [30]After viewing the CCTV footage (Exhibit P1), he told the Court it was clear Mr Illert was being aggressive in the front foyer. He told the Court it was the job of security staff to provide the first response and try and avoid an aggressive situation and to maintain safety. There was a tug of war between Mr Abdulsamed and Mr Illert as he did not want Mr Abdulsamed to take the Device. Mr Abdulsamed succeeded in removing the Device from his grasp.

    [31]Despite this he was still trying to enter the Administration area and was quite agitated. He was forcing his way to the door and was using his body mass to do this.  He was not hitting or punching at this time.

    [32]He and Mr Abdulsamed restrained Mr Illert and he dropped to the ground. They continued to restrain him and he was still quite agitated. He then settled down enough to agree to sit on the lounge. When he was prone on the ground he was holding Mr Illert by the arm and shoulder. It was not a formal restraint, just enough to keep him in place. Mr Illert was resisting at first. He did not recall that Mr Illert’s feet were pointing away from the wall and then turned towards the door.

    [33]He told the Court he completed a general incident report straight after the incident (Exhibit D4). He could not recall Mr Illert kicking but it must have happened as he had included it in his report. He only wrote down what he saw. He did not recall any swearing. If Mr Illert had threatened to kill anyone he would have put that in the report. He did not recall Mr Illert spitting or punching.

    [34]He conceded there were short periods where there was no footage as the cameras were not continuously recording. The CCTV footage had not been tampered with. There was no security desk in the front foyer, only a desk for volunteers and the area was monitored by security staff with the cameras.

1. The CCTV footage tendered in evidence was actually the product of three cameras, one positioned in the corridor leading from the entrance to the Emergency Department into the hospital and two more covering what is known as the Art Gallery area, an area adjacent to the main entrance of the hospital through which people using that entrance must pass to get to the administration offices or go further into the hospital. As mentioned, in each instance the footage was not continuous and did not capture sound. The Magistrate held that this was the product of the manner of operation of the cameras, and not as a consequence of any tampering. Lastly, the time as recorded is incorrect, but the images are recorded in real time and the real time record featured on the footage in terms of the duration of the events recorded is accurate.

2. The Magistrate viewed the CCTV footage and made the following findings:

   [50]I make the following observations from viewing the CCTV footage of Mr Illert entering the entrance to the ED (Exhibit P2):

   1.     Mr Illert entered the ED pushing the Device.

   2.     Both security officers, namely Mr Worrell and Mr Abdulsamed, spoke to Mr Illert through the open sliding glass window of the security office.

   3.     Mr Abdulsamed came out from the security office to speak to Mr Illert and Mr Worrell followed soon afterwards. Mr Abdulsamed is clearly asking Mr Illert to take the Device outside.

   4.     Mr Illert takes the Device outside and he is then asked to move it away from the entrance, which he does. He then proceeds to the ED.

   5.     Mr Worrell remains just inside the entrance door and the CCTV footage ends at 12.41pm.

   [51]I make the following observations from viewing the CCTV footage referred to as ‘Art Gallery South’ and commencing at 12.59 pm (Exhibit P2):

   1.     Mr Illert is pushing the Device and he is heading for the door adjacent to the lounge leading to the Administration area (Exhibit D1).

   2.     The two security officers approach him and he ignores them and continues towards the door of the Administration area.

   3.     Mr Abdulsamed puts his foot out in an effort to stop the Device but Mr Illert continues. Mr Abdulsamed then pulls the Device from Mr Illert’s grasp.

   4.     Mr Illert then continues towards the door to the Administration area. Mr Abdulsamed and Mr Worrell each take hold of one of Mr Illert’s arms and he immediately drops to the floor by the side of the lounge.

   5.     Due to the camera angle, the vision of Mr Illert and the security officers is then obscured by the lounge.

   [52]I make the following observations from viewing the CCTV footage referred to as ‘Art Gallery North’ (sic) (Exhibit P2):

   1.     I repeat the observations referred to in paragraphs 1-4.

   2.     There is a gap in the footage, however, when Mr Illert is lying on the floor by the side of the lounge, it can be seen that he has changed his position as his legs are facing in a different direction from when he first dropped to the floor.

   3.     Mr Abdulsamed can be seen with his knee on Mr Illert’s chest.

   4.     A ‘Code Black’ has been called and the Code Black team arrives consisting of two orderlies. Ms Lewington, the Nurse Manager, was also present.

   5.     Mr Illert is then helped up and sits on the lounge and Ms Lewington can be seen talking to him.

3. In addition to the findings the Magistrate made from viewing the CCTV footage, the Magistrate recorded the following findings of fact as being made by her on the balance of probabilities:

   [59]    …

   1.      Mr Illert was told by the security officers when he wheeled the Device through the door leading to ED that he was not permitted to bring the Device into the Hospital as it posed a real danger due to being a petrol powered vehicle.

   2.      The security officers were polite and courteous in their dealings with Mr Illert.

   2.      (sic) Ms Kate Matthias also confirmed to Mr Illert that he was not permitted to bring the Device into the Hospital after she inspected it following his attendance at the ED, but before he had left the Hospital. She informed him it posed a danger as it was petrol powered and the Hospital was full of combustible gases and it was also a bulky vehicle and a hazard to staff and visitors.

   3.      Mr Illert then travelled a significant distance around the perimeter of the Hospital and again entered the Hospital wheeling the Device, this time through the Main Entrance.

   4.      He did this with the specific intention of avoiding the scrutiny of the security officers. The Main Entrance did not have security officers present but was monitored by cameras.

   5.      Mr Abdulsamed and Mr Worrell noticed on the security monitor that Mr Illert was entering the Main Entrance wheeling the Device, contrary to the previous instruction both they and Ms Matthias had given him.

   6.      They immediately went to the area of the Hospital known as the ‘Art Gallery’ to intercept Mr Illert. They again informed him he was not permitted to bring the Device into the Hospital. He deliberately ignored their direction and after Mr Abdulsamed had removed the Device from Mr Illert’s grasp, he continued towards the door leading to the Administration area in a defiant and aggressive manner.

4. Her Honour then stated:

   [60]I have already outlined my observations of the CCTV footage. In addition, I find that after Mr Illert dropped to the floor he kicked at the security officers who then restrained him on the ground, Mr Abdulsamed by placing his knee on Mr Illert’s body and Mr Worrell holding his other arm and shoulder. That Mr Illert kicked at the security officers is also supported by the contemporaneous note made by Mr Worrell (Exhibit D4).

   [61]I find that at no time was Mr Abdulsamed aggressive and abusive towards Mr Illert.

5. The Magistrate concluded that whilst the security officers had committed a battery on Mr Illert, their intention in restraining him was to stop him from proceeding with the device to the administration area, and that, once the device had been removed from him, to then restrain him from entering the administration area. She concluded that Mr Abdulsamed and Mr Worrell had each taken hold of Mr Illert’s arms whereupon he dropped to the floor of his own accord. She found that they continued to restrain him whilst he was lying on the floor with Mr Abdulsamed placing a knee across Mr Illert’s chest.

6. Having concluded that a battery was committed the Magistrate turned her attention to the defences available to the Network. Two defences were relied upon: that of necessity and that of the power to forcibly eject a trespasser. With respect to the former she said:

   [71]I accept and find that both Mr Worrell and Mr Abdulsamed held an honest belief, on reasonable grounds, that it was necessary to act because of the dangers posed by the presence of the Device, and thereafter, because of the aggressive and agitated manner in which Mr Illert was behaving.

7. Her Honour concluded:

   [77]In my view, the actions of Mr Abdulsamed and Mr Worrell were entirely reasonable and proportionate, having regard to the existing circumstances. Mr Illert has failed to establish that the actions of Mr Abdulsamed and Mr Worrell were disproportionate to the danger they were seeking to avoid.

8. The Magistrate then notes that it was strictly unnecessary for her to turn her attention to the second of the defences. Nevertheless she did so. She concluded:

   [83]I have found that Mr Illert had been directed not to bring the Device into the Hospital by both the security staff, before he attended the ED, and by Ms Matthias after he attended the ED. Accordingly, when he returned on the second occasion there could be no licence, as he was entering the Hospital, with the Device, in direct contravention of the earlier direction to leave it outside. He was in fact committing a trespass. When he re-entered the Hospital through the Main Entrance, the security staff directed him not to proceed and reminded him he was not permitted to bring the Device into the Hospital. He was given a reasonable opportunity to comply but chose to deliberately ignore their direction and proceed with the Device. They were then entitled to take the necessary action to eject him from the premises of the Hospital. It is of course necessary for the intervention action to be reasonably proportionate.

   [84]For the same reasons given when discussing the issue of proportionality with respect to the defence of necessity, I find that the response of the security officers was not disproportionate. Although it is not necessary to make such a finding, I find that the Hospital was lawfully entitled to take the action to eject him from the premises of the Hospital.

   The appeal grounds and submissions

9. Mr Illert’s Notice of Appeal contains four grounds. Those grounds are stated as follows:

   i.     The Magistrate erred in finding defences made out to the proven battery.

   ii.   The Magistrate erred in her approach to and findings of fact.

   iii.     The Magistrate erred in her approach to and assessment of credit.

   iv.   The Magistrate failed to provide adequate reasons.

10. So stated the grounds of appeal do not disclose with adequate particularity the complaint that is made. They do not comply with rule 282(2)(c) of the Supreme Court Civil Rules 2006 (SA). The Network did not take issue with the Notice of Appeal. Its inadequacy does not prevent the matter proceeding.[1] The result is that the complaints made must be distilled from Mr Illert’s summary of argument and the submissions his counsel made.

    [1]Supreme Court Civil Rules 2006 (SA) r 286(2).

11. The argument advanced in support of the first ground of appeal was that as at the moment the security officers took possession of Mr Illert’s device in the Art Gallery area of the hospital any threat posed by him ceased with the consequence that the use of force from that point in time was not warranted. Counsel submitted that the evidence did not support a finding of imminent peril once the seizure of the device occurred. From their earlier involvement with Mr Illert the security officers, Messrs Abdulsamed and Worrell, would have known that whilst he was aggressive and argumentative he was nonetheless compliant and they would have known that his intention was to make a complaint. Such knowledge informed any assessment of whether force was required and the degree of force to be deployed. It was also submitted that the availability of reasonable alternatives suggested that the use of force was neither reasonably necessary nor proportionate. Further, and in any event, the force used, counsel contended, was not reasonably necessary and was disproportionate.

12. In effect the first ground of appeal is that, once the security officers took possession of Mr Illert’s device, the use of force could not reasonably be justified and such force as was used was not proportionate to the danger.

13. The first ground and associated argument dovetails with the second. The argument in relation to the second ground of appeal is that before the Magistrate could conclude that either the defence of necessity was made out or that Mr Illert was a trespasser in relation to whom reasonable force could be used to eject, a factual finding had to be made as to Mr Illert’s intention in going to the hospital administration area, and, that upon interception by Mr Abdulsamed and Mr Worrell he offered resistance and the nature of that resistance. Absent such findings any assessment of the reasonableness of the force used, including reasonable avenues of dealing with Mr Illert that did not involve force, must be considered fatally flawed. Counsel for Mr Illert acknowledged that the Magistrate had found that Mr Illert kicked out whilst restrained and on the ground. If that did occur, he conceded, it would be important to any analysis of the use of force, but contended there was no adequate evidential basis upon which such finding could be made. This, counsel contended, highlighted the need on the part of the Magistrate to make findings as to the nature of the danger Mr Illert posed and, in particular, how such danger posed a threat sufficient to justify a consideration of the defence of necessity. In this regard counsel pointed to the fact that the CCTV footage was at best equivocal due to gaps in the images captured and obstacles obscuring the camera view.

14. I understand the thrust of the arguments made in support of the second ground to be that a conclusion favourable to the Network on each of the defences could not be arrived at without considering and making findings as to why Mr Illert proceeded to the Art Gallery area and whether Mr Abdulsamed and Mr Worrell knew of his motivations, and of the degree of resistance he offered. The first of these matters is relevant to an assessment of any perceived peril and the imminence of its anticipated occasion. The second is whether the response was reasonable and proportionate. 

15. There is a further limb to the second ground of appeal, one necessarily disengaged from the first because it deals with the distinct defence of the use of reasonable force to eject a trespasser. Here counsel argued that upon Mr Illert being relieved of his device he was no longer a trespasser, if, in fact, he ever was. Alternately, if he was a trespasser, the force used was not to eject him.

16. In relation to the third ground of appeal, the complaint is of differential treatment in the assessment of the evidence of Mr Illert on the one hand and Mr Abdulsamed on the other. With respect to the former the Magistrate drew conclusions as to his credibility and reliability after, largely, considering his evidence in the light of the images captured on the CCTV footage. By contrast, when her Honour turned to the evidence of Mr Abdulsamed, inconsistencies between what he said in court and the CCTV footage were explained away on the basis of a lapse of time having given rise to memory loss and the elevation in significance of other aspects of the incident retained. The same complaint is made in relation to the evidence of Mr Worrell.  That is, it was incumbent upon the Magistrate to determine his reliability after assessing what he said in court against the images captured in the CCTV footage, rather than to explain away fragility on the basis of the lapse of time. The importance of so proceeding, counsel contended, was the feed-in such analysis would necessarily have to accepting the evidence of Mr Abdulsamed and Mr Worrell. That, in turn, would inform conclusions as to the need to perpetrate the degree of force exercised.

17. An unrelated aspect of this ground of appeal targeted the Magistrate’s treatment of the evidence of Ms Matthias. Here the complaint was largely that Ms Matthias’ evidence was accepted without any expression of caution in arriving at that conclusion, such caution being warranted because no other witness, including Mr Illert, made mention of any discussion with Ms Matthias. The significance of Ms Matthias’ evidence lay in the inference as to Mr Illert’s state of knowledge upon entering the main entrance to the hospital with his device that it supported. That is, if Ms Matthias’ evidence were accepted the inference could be drawn that Mr Illert knew he was entering the hospital with his device in defiance of the Network’s instruction.

18. The complaint subject of ground 4 is related to grounds 1 and 2. Essentially, the obligation upon the Magistrate to provide adequate reasons required, in the circumstances of this case, that she explain what was the imminent peril justifying the force used once Mr Illert had been relieved of possession of his device.

19. I deal with each ground of appeal and related argument below, before doing so, however, it is necessary to identify the elements of the two defences made out.

    Necessity

20. Mr Illert has not challenged the correctness of the Magistrate’s statement of the law governing the application of the defence of necessity in this case. In this regard the Magistrate referred to The Laws of Australia where, at 33.9.340 it states:

    Necessity may justify intervention for the preservation of oneself, another person, one’s own property or the property of another.

    Necessity is only a justification when three elements are shown. The defendant must show an imminent danger to person or property, an honest belief on reasonable grounds of the necessity to act for the preservation of person and/or property, and the acts done to avoid the imminent danger must not be out of proportion to the danger to be avoided.[2]

    [2]    Proudman v Allen [1954] SASR 336; R v Loughnan [1981] VR 443.

21. Despite this, counsel for Mr Illert submitted that in the course of resolving the complaints subject of grounds 1 and 2, this Court should act in accordance with the principles identified in Bayley v Police.[3] In my view, the principles articulated in Bayley cannot be reconciled with those applied by the Magistrate. In my view Bayley is not applicable. In what follows I explain why.

    [3] (2007) 99 SASR 413.

22. The Magistrate correctly observed that Mr Illert’s action was not in truth one for assault, but battery.[4] Battery is a form of trespass to the person. That there exists as part of the common law of Australia a defence of necessity which may justify action which would otherwise be unlawful is not challenged in this case. It is not, however, a defence the application of which features frequently in the authorities in this country or elsewhere, and neither its existence and application generally nor its elements more particularly have, so far as my research reveals, been considered by the High Court.

    [4]Collins v Wilcock [1984] 1 WLR 1172 at 1177 (Goff LJ); In Re F [1990] 2 AC 1.

23. Glanville Williams has written that “[t]he classical writers abound in maxims upholding the plea of necessity”.[5] Certainly authority can be found supporting the proposition that necessity is a defence to trespass to property where human life is at risk.[6] In recent times necessity has also being deployed in defence of assault and battery in the medical context where doctors have, for example, sought orders from courts sanctioning proposed treatment where consent cannot be obtained.[7]

    [5]    G Williams, The Defence of Necessity (1953) 6 Current Legal Problems 216 at 218 and the references referred to therein. See also Perka v R [1984] 2 SCR 232 at 239-240 (Dickson J); Re A [2001] Fam 147 at 219-224 (Brooke LJ).

    [6]Esso Petroleum Co Ltd v SouthportCorporation [1956] AC 218; Mouse’s Case (1609) 12 Co Rep 63.

    [7]    Re A [2001] Fam 147; R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458; In Re F [1990] 2 AC 1.

24. As early as 1609 Hobart CJ is recorded as holding:[8]

    [A]ll laws admit certain cases of just excuse, when they are offended in letter, and where the offender is under necessity, either of compulsion or inconvenience…

    [8]    Moore v Hussey (1609) Hob 93 at 96.

25. The difficulty that arises is in distilling the elements of the defence. As mentioned, for this purpose the Magistrate relied upon The Laws of Australia[9] in addition to Balkan and Davis, Law of Torts,[10] and the South Australian authority of Proudman v Allen.[11]

    [9]At 33.8.360 and 33.9.340.

    [10]Balkan, R P and Davis, J L R, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, 6.21 at 150.

    [11][1954] SASR 336.

26. In Proudman v Allen, Mr Allen caused damage to Mr Proudman’s car when, in an attempt to stop the car rolling into another and likely causing damage to both, the car having been set in motion by the act of a stranger, he ran to the car, opened it, unsuccessfully attempted to engage the handbrake, then turned the steering wheel causing the car to miss crashing into another but run over an embankment and into the sea. The Special Magistrate summarised the case in the following terms:[12]

    The position was simply that he saw an accident about to happen on the highway as a result of another’s conduct, and he did what occurred to him at the time as the best thing to do to avert it.

    [12][1954] SASR 336 at 338.

1. He then added:[13]

   I am satisfied that it was really necessary for someone to intervene if a collision between the two cars was to be avoided and, in my opinion, in the given circumstances, the defendant acted reasonably in doing what he did.

   [13][1954] SASR 336 at 338.

2. In so concluding the Special Magistrate relied upon Kirk v Gregory[14] and Cope v Sharpe (No. 2).[15]

   [14] (1876) 1 Ex D 55.

   [15] [1912] 1 KB 496.

3. On appeal, Hannan AJ held that the Magistrate was correct in his understanding of the applicable legal principles regarding the defence of necessity and in their application. Hannon AJ held:[16]

   These authorities show that the immunity for the consequences of such acts of interference is not limited to persons having an interest in the chattels concerned or having a duty to preserve them, but extends to everyone who acts reasonably in a real emergency for the purpose of saving the goods of another from damage or destruction, whether he derives or is likely to derive any pecuniary advantage from the action or not, or is fulfilling any legal obligation.

   [16][1954] SASR 336 at 341.

4. So stated the defence is only made out if a real emergency, often described in terms of there being a situation of imminent danger or imminent peril,[17] is proven to have arisen as at the point in time that the defendant does the act that causes harm, loss or damage. Here I note that it is not enough to prove that the defendant believed a real emergency to have arisen. It must be established that a situation of real emergency had arisen or was imminent.

   [17]   In In Re F [1993] 2 AC 1 at 75 Lord Goff of Chieveley, referring to the historical origins of the principle of necessity, observed that “the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his consent. Emergency is however not the criterion or even a pre-requisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity, not of emergency.”

5. If there was a real emergency in the relevant sense the question then is whether the defendant acted reasonably in the action he or she took in an effort to avert the emergency.

6. This analysis accords with the decisions in Cope v Sharpe (No. 2)[18] and Kirk v Gregory.[19] It is also consistent with the decision of the Court of Appeal in Cresswell v Sirl.[20] In Cresswell, a case concerning trespass to property being the shooting of dogs chasing the defendant’s father’s sheep, the Court of Appeal stated the test in the following terms:[21]

   We think the relevant rules of law may be thus stated: (1.) The onus of proof is on the defendant to justify the preventive measure of shooting the attacking dogs. (2.) He has, by proof, to establish two propositions, but each proposition may be established in either of two ways: Proposition No. 1: That at the time of shooting, the dog was either (a) actually (in the above sense) attacking the animals in question, or (b) if left at large would renew the attack so that the animals would be left presently subject to real and imminent danger unless renewal was prevented. Proposition No. 2: That either (a) there was in fact no practicable means, other than shooting, of stopping the present attack or preventing such renewal, or (b) that the defendant, having regard to all the circumstances in which he found himself, acted reasonably in regarding the shooting as necessary for the protection of the animals against attack or renewed attack. 

   [18][1912] 1 KB 496.

   [19](1876) 1 Ex D 55.

   [20][1948] 1 KB 241.

   [21][1948] 1 KB 241 at 249.

7. It can be seen that the application of Proposition No. 2 invites a consideration of alternative courses of action. The reasoning is relatively simple – if there was a practicable alternative that would not result in harm, loss or damage, the act done cannot be said to have been reasonably necessary.

8. Moving forward in time, nothing in the speeches of the Law Lords in Esso Petroleum Co Ltd v Southport Corporation[22] casts doubt upon Devlin J’s application of the doctrine of necessity in that case at first instance.[23] At first instance Devlin J spoke in terms of an imminent danger to life rendering it necessary to inflict damage on another’s property.[24] His Lordship did not state the law in terms that suggested the element of imminent danger or emergency would be established if the defendant reasonably believed such circumstances to have eventuated, nor did he indicate that the reasonableness of the response was to be assessed from the point of view of the defendant’s appreciation of the circumstances. What he did add, and what was accepted by the House of Lords, was that the doctrine of necessity could not operate to defeat liability for a negligent act committed by the defendant that was causative of the danger or emergency.[25]

   [22][1956] AC 218 at 235.

   [23]   Southport Corporation v Esso Petroleum Co Ltd [1953] 3 WLR 773; as produced in Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 222. See, in particular, [1956] AC 218 at 235 (Earl Jowitt).

   [24][1956] AC 218 at 228.

   [25] [1956] AC 218 at 228; See also, Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 at 1252-3 (Taylor J); Simon v Condran (2013) 85 NSWLR 768 at [33] (Leeming JA).

9. In Southwark London Borough Council v Williams[26] the question arose as to whether the doctrine of necessity could be invoked by squatters to defeat an order for possession sought by the Council who owned the premises in which they were squatting. The Court of Appeal held that it could not. The focus for the Court in so holding was the nature of the emergency or imminent danger that enlivens the doctrine. In this regard Edmund Davies LJ said:[27]

   But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear – necessity can very easily become a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril: for example, the forcible feeding of an obdurate suffragette, as in Leigh v Gladstone (1909) 26 TLR 139, 142, where Lord Alverstone CJ spoke of preserving the health and lives of the prisoners who were in the custody of the Crown; or performing an abortion to avert a grave threat to the life, or, at least, to the health of a pregnant young girl who had been ravished in circumstances of great brutality, as in Rex v Bourne [1939] 1 KB 687; or as in the case tried in 1500 where it was said in argument that a person may escape from a burning gaol notwithstanding a statute making prison-breach a felony, “for he is not to be hanged because he would not stay to be burnt.” Such cases illustrate the very narrow limits with which the plea of necessity may be invoked. Sad though the circumstances disclosed by these appeals undoubtedly are, they do not in my judgment constitute the sort of emergency to which the plea applies.

   [26] [1971] 1 Ch 734.

   [27][1971] 1 Ch 734 at 745-6. See also at 743-4 (Lord Denning MR).

10. In 1979 in R v Loughnan the Full Court of the Supreme Court of Victoria dealt with the questions of whether there was a defence of necessity at common law, its elements, and availability in answer to a charge of escape custody.[28] Young CJ and King J did not consider there to be any authority binding upon them.[29] They accepted that there was such a defence.[30] Relying upon the work of Sir James Fitzjames Stephen[31] they identified the elements of the defence as follows:[32]

    It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. …

    The other two elements involved, which were identified by Menhennitt J in R v Davidson, supra, at p. 671 can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.

    The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies LJ (as he then was) pointed out in Southwark LBC v Williams, supra, at p. 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.

    The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? The two tests of imminent peril and proportion we have adapted from the tests propounded by Smith J in R v Mackay [1957] VR 560 at p 572-3, where they are referred to as necessity and proportion. It will be seen that in the application of the defence of necessity to a given situation these two elements may become interwoven. …

    [28][1981] VR 443.

    [29]R v Loughnan [1981] VR 443 at 447.

    [30]R v Loughnan [1981] VR 443 at 447.

    [31]   Stephen, J F, A Digest of the Criminal Law, 1st ed, Macmillan and Co, London, 1877, art 32 at 19; Stephen, J F, A Digest of the Criminal Law, 9th ed, Sweet & Maxwell, 1950, art 11 at 9.

    [32]R v Loughnan [1981] VR 443 at 448-9.

11. This formulation of the elements is different to that of Hannan AJ in Proudman v Allen. The first of Young CJ’s and King J’s three elements invites a consideration of the intent with which the accused acted. If he acted for any purpose other than to avoid irreparable evil the defence is not made out. The second element, the imminent peril test, invites considerations of the accused’s perception of events. The third element, or proportion test, requires a consideration of whether the reasonable person in the position of the accused, which I take to mean confronted by a threat of imminent peril such as that the accused believed he or she faced, would consider that he or she had any alternative but to do what the accused did to avoid the danger. If this analysis is correct the defence of necessity formulated in R v Loughnan is qualitatively different to that applied by Hannan AJ in Proudman v Allen.

12. R v Loughnan was a criminal case. In this connection it is important to note that Young CJ and King J referred to the close relationship between self-defence and necessity. After doing so they repeated the final two elements of the test. They said:[33]

    First, an urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger. Secondly, those acts must not be disproportionate to the threatened danger.

    [33][1981] VR 443 at 449.

13. Here there is a shift from an objective test to a partially subjective test. By that I mean, where Hannan AJ’s formulation requires an assessment of the necessity of acting to avert the imminent danger to be undertaken from the viewpoint of the reasonable person, Young CJ and King J, consistent with the law of self-defence, hold that the analysis required is whether the defendant held an honest belief that it was necessary to act and that that belief was one which was based on reasonable grounds. In my view R v Loughnan may be seen as marking the point at which the development of the law of necessity and its application in this country in the criminal law diverges from its application more generally. The divergence appears to be the product of the perceived close relationship with self-defence and the understandable pre-occupation of the criminal law with the subjective blameworthiness of an accused and their exoneration for an honest mistake. As Gleeson CJ noted in R v Rogers,[34] at the time the judgment in Loughnan was delivered:[35]

    …it was customary for juries in homicide cases, when being instructed on the elements of self-defence, to be told that the first thing to consider was whether, when the accused killed the deceased, the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

    [34] (1996) 86 A Crim R 542.

    [35] (1996) 86 A Crim R 542 at 545. As to the then understanding of the elements of self-defence see Viro v The Queen (1978) 141 CLR 88 at 146-7 (Mason J).

14. The development that commenced in Loughnan continued in Rogers. In Rogers a prisoner sought to rely on the defence of necessity to excuse his escape from lawful custody to avoid threatened lethal violence. There Gleeson CJ, with whom Clarke JA and Ireland J agreed, noted that since Loughnan the High Court had reformulated the defence of self-defence:[36]

    Since the decision of the High Court in Zecevic,[37] juries are instructed that the ultimate question is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. However, the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused’s supposed belief, and the reasonableness of his belief.

    (citation added).

    [36](1996) 86 A Crim R 542 at 545.

    [37]   Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

15. After referring to the instructive judgment of Dickson J in the case of Perka,[38] about which more will be said below, and, in particular, to the treatment there of the notions of peril and imminence as factual matters relevant to an assessment of whether the breach of the law was unavoidable, Gleeson CJ held:[39]

    As with self-defence, considerations of reasonableness and proportionality are essential control mechanisms. Dickson J referred [at 251] to “the requirement that the situation be urgent and the peril be imminent”, but in a context consistent with the approach that this is a factual matter of relevance to the contention that the breach of the law in question was, in practical terms, unavoidable.

    The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

    This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic, it is now more appropriate to treat those “requirements”, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

    [38][1984] 2 SCR 232.

    [39](1996) 86 A Crim R 542 at 546.

16. The analysis in Rogers was unanimously approved by the High Court in Taiapa v The Queen.[40] Thus the test post Rogers is whether the defendant honestly believed on reasonable grounds that it was necessary to do as he or she did to avert death or serious injury.[41] If the defendant’s act goes beyond what he or she believed on reasonable grounds was necessary, that is, his or her response was disproportionate to the risk of danger that he or she believed on reasonable grounds to exist, the defence fails. Further, evidence of alternate courses of action that could have been taken to avert the danger would be relevant to determining whether the defendant genuinely believed his or her action was reasonably necessary.[42] In this regard Gleeson CJ held:[43]

    The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.

    [40] (2009) 240 CLR 95 at [36]-[38].

    [41] (1996) 86 A Crim R 542 at 547.

    [42] (1996) 86 A Crim R 542 at 547.

    [43] (1996) 86 A Crim R 542 at 547.

17. Here Gleeson CJ’s approach reflects, as he concedes, the thinking of Dickson J in Perka.[44] In that case Dickson J considered the rationale underpinning the defence to be grounded in the concept of an excuse, as opposed to that of a justification.[45] Conduct otherwise unlawful is excused where the defendant has no real choice in all the circumstances but to engage in it.[46] Further, the defendant must act in a manner proportionate to the threat of harm, loss or damage. Dickson J said:[47]

    The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of “necessity” and human instincts.

    The importance of this requirement that there be no reasonable legal alternative cannot be overstressed.

    Even if the requirements for urgency and “no legal way out” are met, there is clearly a further consideration. There must be some way of assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil.

    [44] [1984] 2 SCR 232.

    [45] [1984] 2 SCR 232 at 246-7.

    [46] [1984] 2 SCR 232 at 252.

    [47] [1984] 2 SCR 232 at 252.

18. Subsequently in R v Latimer[48] the Supreme Court of Canada held that Perka outlined three elements that must each be satisfied if the defence of necessity is to be made out:[49]

    …First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.

    [48] [2001] 1 SCR 3.

    [49] [2001] 1 SCR 3 at [28].

19. The remaining question is whether each element is to be determined objectively or from a subjective standpoint. The Court held:[50]

    Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governs necessity. Is the standard objective or subjective? A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.

    The first and second requirements – imminent peril and no reasonable legal alternative – must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: “involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure” (p. 259). We would add that it is appropriate, in evaluating the accused’s conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in R v Hibbert, [1995] 2 S.C.R. 973, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that

    it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.

    While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person’s ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility than an honestly held but mistaken belief could ground a “mistake of fact” argument on the separate inquiry into mens rea.

    The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise. Evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by G. P. Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted and the harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break the law. He continued:

    Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.

    The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement must be determined on a purely objective standard.

    [50] [2001] 1 SCR 3 at [32]-[34].

1. I come to the Full Court’s consideration of the defence of necessity in Bayley v Police.[51] That too was a criminal case. Mr Bayley was convicted of the offences of driving without due care and driving in a manner dangerous to the public. In his defence he said that he committed the offences in the course of evading men in a van who had threatened to kill him and his passengers. Gray J, with whom Sulan and White JJ agreed, summarised the applicable principles governing the defence of necessity as follows:[52]

   [51](2007) 99 SASR 413.

   [52](2007) 99 SASR 413 at [53].

   Against the background of the above discussion, it is convenient to summarise the approach to be taken in the present case.

   ·The issues raised by the defence of necessity are whether an accused believed on reasonable grounds that commission of the crime charged was necessary in all the circumstances in order to remove a threat of death or serious injury to himself or another. Accordingly, there are subjective and objective considerations.

   ·A defence of necessity can only succeed if it is reasonably possible that an accused believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that the commission of the offence with which he was charged was necessary in order to remove the threat. Further, objectively viewed, there must have been no reasonable alternative course of action open to the accused.

   ·Assuming there was an imminent peril, a defendant must have honestly believed on reasonable grounds that it was necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened peril. That test will, as a matter of fact, not be met if it is proved that the conduct was disproportionate to the threat. A response is not proportionate to the threat if there are reasonable grounds for believing there were alternative courses of action available.

   ·The prison escape cases make clear that each aspect of the criminal conduct must be addressed. That is, even if certain criminal conduct were necessary, the remainder may not be. That is so because such actions may not be either proportionate or reasonable.

   ·The response must be proportionate to the danger and cannot go further. If alternatives are reasonably available, the offending is not proportionate and therefore not reasonably necessary. The threat must be imminent and operative. An accused must be afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law, or involved some lesser breach of the law. Reasonableness and proportionality has to be assessed objectively. The existence of any possible alternative courses of action is of central factual importance.

   ·The event justifying the conduct must be imminent and operational. If the threat abates there can be no emergency, nor can an action in response be said to be reasonable or proportionate. This is an obvious limiting factual consideration on the “reasonable necessity” element.

   ·The defence may only be expected to arise on rare occasions.

   (citations omitted).

2. It is arguable that the Bayley formulation is not consistent with the Rogers formulation in that it appears to treat the absence of reasonable alternative courses of action as a legal condition where Rogers considers it an evidential issue going to the grounds upon which the belief is held. It is not, however, necessary for me to resolve any inconsistency here.[53]

   [53]   Nor the relationship between necessity and the defence of duress of circumstances; see R v Willer (1986) 83 Cr App R 225; R v Martin [1989] 1 All ER 652; R v Pommell [1995] 2 Cr App R 607; R v Abdul-Hussain [1999] Crim LR 570.

3. In this case Mr Illert submitted, particularly in relation to the significance of alternate measures open to Mr Abdulsamed and Mr Worrell, that the test in Bayley was the applicable test. If Mr Illert had been prosecuted for a criminal offence I would be bound to apply Bayley. However, this case concerns an action in tort. There exists a line of authority dealing with the defence of necessity in cases of trespass that suggest that in tort the test remains virtually as formulated by Hannan AJ in Proudman v Allan. Here I have in mind in particular the New Zealand case of Dehn v Attorney–General[54] applied recently in New South Wales v McMaster[55] and the statement of the necessity principle in In Re F[56] and Re A.[57] Further, in my view the reasoning of Lord Scott of Foscote in Ashley v Chief Constable of Sussex Police[58] as to why the elements of the defence of self-defence in tort should not be the same as in crime apply similarly to the defence of necessity. His Lordship said:[59]

   One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

   The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail. This is the conclusion to which the Court of Appeal came in preferring solution 2.

   …

   I would start with the principle that every person is prima facie entitled not to be the object of physical harm intentionally inflicted by another. If consent to the infliction of the injury has not been given and cannot be implied why should it be a defence in a tort claim for the assailant to say that although his belief that his victim had consented was a mistaken one none the less it had been a reasonable one for him to make? Why, for civil law purposes, should not a person who proposes to make physical advances of a sexual nature to another be expected first to make sure that the advances will be welcome? Similarly, where there is in fact no risk or imminent danger from which the assailant needs to protect himself, I find it difficult to see on what basis the right of the victim not to be subjected to physical violence can be set at naught on the ground of mistake made by the assailant, whether or not reasonably made. If A assaults B in the mistaken belief that it is necessary to do so in order to protect himself from an imminent attack by B, or in the mistaken belief that B has consented to what is done, it seems to me necessary to enquire about the source of the mistake. If the mistake were attributable in some degree to something said or done by B or to anything for which B was responsible, then it seems to me that the rules relating to contributory fault can come into play and provide a just result. If the mistake were attributable in some degree to something said to A by a third party, particularly if the third party owed a duty to take care that information he gave was accurate, the rules relating to contributions by joint or concurrent tortfeasors might come into play. But I am not persuaded that a mistaken belief in the existence of non-existent facts that if true might have justified the assault complained of should be capable, even if reasonably held, of constituting a complete defence to the tort of assault. However, and in my view, unfortunately, solution 3 has not been contended for on this appeal, its pros and cons have not been the subject of argument, and your Lordships cannot, therefore, conclude that it is the correct solution. But I would, for my part, regard the point as remaining open.

   [54][1988] 2 NZLR 564.

   [55](2016) 328 ALR 309 at [216]-[222].

   [56] [1990] 2 AC 1 at 75 (Lord Goff of Chieveley).

   [57] [2001] Fam 147.

   [58] [2008] 1 AC 962.

   [59] [2008] 1 AC 962 at [17]-[18] and [20], see also at [3] (Lord Bingham of Cornhill), [53] (Lord Rodger of Earlsferry), [76] (Lord Carswell), [86]-[88] (Lord Neuberger of Abbotsbury).

4. Similarly the rules and principles defining what constitutes an act taken to avert an imminent danger to property or person that results in harm or damage for which the actor shall not be held liable, must strike the balance between the right of the individual who suffers harm or damage to their property not to be subjected to such harm or damage, and the right of the individual, and perhaps the public interest in encouraging the individual, confronted by an imminent danger to take action to avert the adverse consequences to person or property posed by that danger. The striking of that balance for the purposes of the law of tort need not be the same as in the criminal law, bearing in mind, in particular, the purposes of the law in each respect.

5. In my view the principles stated in Bayley v Police as applicable to the defence of necessity are confined in their application to the criminal law.

6. Above I mention the recent decision of the New South Wales Court of Appeal in New South Wales v McMaster.[60] In that case the State, amongst other defences, pleaded necessity in answer to a claim of trespass to the person constituted of the shooting by a police officer of the plaintiff in the course of the police attending a report of a violent home invasion. Beazley P, with whom McColl and Meagher JJA, agreed, held that in order for the defence of necessity to be made out “the State is required to demonstrate a state of imminent peril and that the steps taken were reasonable”.[61] Significantly, the learned President held that the subjective belief of the defendant was not an issue as it would be in relation to the defence of self-defence, thus it would not be sufficient to establish no more than that the defendant “perceived there to be a danger”.[62] In my view this approach accords with that of Hannan AJ in Proudman v Allen. It is consistent with the approach taken by the Magistrate. In what follows I apply the test as stated by the Court of Appeal in New South Wales v McMaster.

   [60] (2016) 328 ALR 309.

   [61]   New South Wales v McMaster (2016) 328 ALR 309 at [222].

   [62]   New South Wales v McMaster (2016) 328 ALR 309 at [222].

7. Thus application of the doctrine of necessity will see the commission of a battery justified if the defendant can establish that it was reasonable to commit such battery in order to avert imminent danger to person or property. A disproportionate response and the availability of alternative courses of action that did not involve a battery will be relevant to determining whether the response was reasonable.

8. As mentioned, counsel for Mr Illert did not contend that the Magistrate had committed an error of law. Rather he focused on the presence or absence of an imminent danger once Mr Illert had been relieved of possession of his device and whether the response to the danger then said to exist was reasonable and not disproportionate. In this regard, counsel for Mr Illert emphasised that where there are reasonable grounds for believing that an alternative course of action to neutralise the danger was open, the response cannot be said to be reasonable and not disproportionate.[63]

   [63]   Bayley v Police (2007) 99 SASR 413 at [53] (Gray J).

   Reasonable force to eject a trespasser

9. In Haddrick v Lloyd[64] Reed J observed that “[t]he right of an occupier to eject a trespasser is well established.”[65] It is equally well established that ejectment may involve the use of reasonable force.[66] It is also settled that:[67]

   Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right.

   [64] [1945] SASR 40.

   [65] [1945] SASR 40 at 44; Moriarty v Brooks (1834) 172 ER 1419; Green v Bartram (1830) 172 ER 717.

   [66]   Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Haddrick v Lloyd [1945] SASR 40 at 42 (Reed J); Green v Bartram (1830) 172 ER 717; Tullay v Reed (1823) 171 ER 1078; Kuru v New South Wales (2008) 236 CLR 1 at [8] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

   [67]   Coco v The Queen (1994) 179 CLR 427 at 435 (Mason CJ, Brennan, Gaudron and McHugh JJ), citing Entick v Carrington (1765) 2 Wils 275 at 291, Halliday v Nevill (1984) 155 CLR 1 at 10 and Plenty v Dillon (1991) 171 CLR 635 at 639.

10. A person who enters the property of another must justify that entry by showing either that the entry was with consent of the occupier or that the entrant had lawful authority to enter.[68] At common law, a licence for persons to be present on another’s premises for particular purposes may be implied. In Halliday v Nevill Gibbs CJ, Mason, Wilson and Deane JJ said:[69]

    While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf. Edwards v. Railway Executive [1952] AC 737, at p. 744. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it: see, generally, Robson v. Hallett [1967] 2 QB 939, at pp. 950-952, 953-954; Lipman v. Clendinnen (1932) 46 CLR 550, at pp. 556-557; Lambert v. Roberts (1980) 72 Cr App R 223, at p. 230). …

    [68]   Kuru v New South Wales (2008) 236 CLR 1 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

    [69] (1984) 155 CLR 1 at 6-7. See also Kuru v New South Wales (2008) 236 CLR 1 at [45] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Plenty v Dillon (1991) 171 CLR 635 at 647 (Gaudron and McHugh JJ); Wheare v Police (2008) 180 A Crim R 396 at [22] (Gray J).

11. It must be observed that a licence to enter may be revoked at will by the licensor.[70] In this regard in Cowell v Rosehill Racecourse Co Ltd Dixon J said:[71]

    A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights. If the permission is terminated, further continuance of the acts it authorized becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v Stubbs). But, if he then refuse to leave the premises, he cannot complain of his forcible removal.

    (citations omitted).

    [70]   Halliday v Nevill (1984) 155 CLR 1 at 7 (Gibbs CJ, Mason, Wilson and Deane JJ) and 11 (Brennan J); Kuru v New South Wales (2008) 236 CLR 1 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

    [71] (1937) 56 CLR 605 at 630-1.

12. Importantly for this case, a person who enters the land of another for a purpose that is not within the scope of any licence granted to him or her is a trespasser. In this regard in Barker v The Queen Mason J said:[72]

    The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession (Thompson v. Ward). If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Thus a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enters for any other purpose, especially if that other purpose be an unlawful purpose. For good reason he stands in no better position than the person who enters without any permission at all. So much is established by the cases.

    (citations omitted).

    [72] (1983) 153 CLR 338 at 341-2 (Mason J). See also at 356-7 (Brennan and Deane JJ).

13. He continued:[73]

    [A] person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority.    

    [73] (1983) 153 CLR 338 at 346 (Mason J). See also at 357 and 360 (Brennan and Deane JJ).

    Consideration

1. Above I have made clear that Ms Matthias was not challenged on the conversation she had with Mr Illert. Nor was Ms Lewington who said she was present during the conversation.[92] The very reason for Mr Illert seeking Ms Matthias out must have been because Mr Abdulsamed or Mr Worrell or both had told him that he was not to bring the device into the hospital.

   [92]   T209.

2. The subject of [57] was things said by Mr Abdulsamed. Thus it was not featured on the CCTV footage and comparison with the footage would not assist in determining whether what Mr Abdulsamed said could be accepted as truthful and reliable. It follows then that even if the Magistrate was required to undertake a similar comparison between the CCTV footage and Mr Abdulsamed’s evidence as she did in relation to Mr Illert’s evidence it would not have assisted in determining whether Mr Abdulsamed was credible and reliable when he gave evidence that he told Mr Illert that he could not bring his device into the hospital because of the dangers it posed.

3. After reading the transcript and watching the CCTV footage I do not think the Magistrate’s assessment of Mr Illert’s credibility and reliability unfair.

4. In any event, the Magistrate does defer to the CCTV footage in dealing with the evidence of each of Mr Illert, Mr Abdulsamed and Mr Worrell at [75]-[76]. These conclusions were not challenged, nor were the conclusions recorded at [50]-[52] made after watching the footage. I detect no unfairness in the Magistrate’s approach to the assessment of the credibility and reliability of Mr Illert in comparison to that of Mr Abdulsamed and Mr Worrell.

5. The purported unfairness it was said feeds into the Magistrates’ consideration of whether the response to the imminent danger / trespass was reasonable and proportionate or reasonable respectively. The Magistrate undertakes that very analysis at [71]-[76] and, as indicated, that analysis is driven not by her credibility findings but by her analysis of the content of the CCTV footage.

6. I turn to the fourth argument and the complaint as to adequacy of the Magistrate’s reasons. As indicated this argument is related to the first and second arguments advanced. The foundation for this complaint lies in the assertion that once the device was removed from Mr Illert’s grasp any suggestion of there being a risk of imminent peril evaporated. It was then incumbent upon the Magistrate to explain in her reasons what constituted the imminent peril from that point in time onwards. Further, and allied to this, it was contended that the device having been secured by the security officers, thereafter practical alternatives to the use of force were reasonably available with the consequence that the Magistrate needed to address such alternatives in her reasons and explain why they could be rejected.  Further again, there being evidence that Mr Illert intended to complain, it was also necessary to explain in her Honour’s reasons why, the device having been taken from him, the use of force was reasonable and proportionate bearing in mind his intentions. It was submitted that Mr Illert’s aggression once his device was taken from him was an inadequate foundation upon which to find that a situation of imminent peril continued, that the use of force was reasonable to avert the peril eventuating and that such force was proportionate to the apprehended peril.

7. As with the first argument, this argument presupposes that what occurred in the Art Gallery area can be divided into two episodes. It is then complained that if the event can be divided in two it was necessary for the Magistrate to deal with the issues identified if she was to conclude that the defence of necessity was made out. Thus the argument as to adequacy of reasons turns initially upon it being accepted that the events could be divided up as counsel contended.

8. For the reasons I have already given, I think it unrealistic to approach what occurred in this way. Accordingly, I think the Magistrate’s approach correct. The episode constituted one interconnected series of events. It is not amenable to subdivision save theoretically. Consequently it cannot be said that the Magistrate’s reasons were defective in not dealing with the matter as if the contrary were the case. If this is correct the conceded imminent peril posed by Mr Illert entering the hospital with his device remained operative.

9. I have also addressed above the reasonableness of the response made by the security officers. I agree with the Magistrate’s assessment and consider her reasons at [71]-[77] adequate for the purposes of this Court undertaking its appellate function and adequate in revealing how she arrived at her conclusion.

10. It is true that the Magistrate did not deal with the question of alternative action that could have been taken by the security officers. Once again, on the view that the Magistrate took of the unfolding of events, a view which was reasonably open, the alternate courses of action proffered on the hearing of this appeal could not possibly amount to reasonable alternative courses of action such that it may be concluded that the action taken was not reasonably necessary and was not proportionate to the apprehended peril. The unfolding of events and Mr Illert’s resistance as I have described it, including his kicking out at the security officers, did not realistically allow for those alternatives to be considered. In view of her Honour’s findings it is understandable that she did not address any of the alternative courses of action raised before me. I do not think, in view of her Honour’s conclusion as to the unfolding of events, that she was required to do so.

11. It is also true that Mr Worrell gave evidence that Mr Illert had said that he wished to complain. However, without wishing to be repetitive, once the conclusion is arrived at that the incident cannot be separated into more than one event, the prior knowledge of an intention to complain possessed by Mr Worrell is of no significance. A state of imminent peril is conceded to have arisen upon Mr Illert entering with his device. What occurred was one event. Mr Illert resisted the security officers as I have described, that resistance continued and evolved. In the circumstances, that his intention was to complain did not alter the fact that a state of imminent peril had arisen which remained operative and the resolution of which involved Mr Illert taking his device outside.

12. I repeat, if I am wrong in my assessment of the event as not reasonably being amenable to division into two events, and consequently wrong in treating the concession as to a state of imminent danger as colouring all that occurred, then for the reasons I have already given, Mr Illert was a trespasser in relation to whom reasonable force to eject could be used and was used.

    Conclusion

13. The appeal is dismissed.

    Appendix

    Art Gallery South

14. The footage commences at 12.59.24 pm and concludes at 1.02.10 pm. The CCTV camera appears to be set up above the entrance to the Art Gallery, such that you can see most of the room.  There is a long couch which lines the right of the frame and a door just beyond the couch. 

    12.59.24 pm – 12.59.48 pm

15. At 12.59.24 pm, Mr Illert enters the Art Gallery area and can be seen at the bottom of the frame.  He appears to be facing slightly right such that he can look behind him. He is walking away from the camera. His device is on his right-hand side and he is holding it with his left hand on the handlebar and his right hand on the seat. Mr Abdulsamed appears on the screen at 12.59.26 pm, just as the device can be seen in its entirety. He is on the opposite side of the device, positioned toward the rear right wheel. At 12.59.26 pm, he appears to be trying to impede Mr Illert’s progress by placing his foot in the path of the rear right wheel of the device. The device appears to run over his foot. Mr Abdulsamed again at 12.59.27 pm attempts to place his foot under the right wheel. As the wheel bypasses his foot, he grabs the blue crate on the back of the device. Mr Illert appears to be looking in Mr Abdulsamed’s direction the entire time and seems intent on continuing into the hospital. As Mr Abdulsamed grabs the crate it becomes dislodged but not separated from the device. This momentarily unbalances Mr Abdulsamed, who appears to have braced himself to pull the device backward upon grabbing the crate. Mr Illert continues walking forward. At 12.59.29 pm, Mr Abdulsamed has grabbed hold of the right hand side of the seat of the device in an attempt to pull it backward. Mr Illert resists by pulling the device toward him with his right hand on the seat and his left hand on the handlebar. At 12.59.30 pm, Mr Abdulsamed still has his right hand on the right hand side of the seat of the device and is attempting to pull it back in the direction from which Mr Illert had come.

16. At 12.59.30 pm, Mr Worrell appears at the bottom of the frame. Mr Illert and Mr Abdulsamed are engaged in what may be described as a tug-of-war over the device. Mr Worrell reaches Mr Illert by 12.59.33 pm.  By that time Mr Abdulsamed has managed to wrench the device a step or two back toward the entrance. At 12.59.34 pm, Mr Worrell appears to have both hands on Mr Illert as he is standing behind him.  It does not appear that Mr Worrell is holding Mr Illert. A further pull from Mr Abdulsamed sees Mr Illert relinquish his hold on the seat of the device. By 12.59.35 pm, Mr Worrell has his left hand on Mr Illert’s back and Mr Abdulsamed is the only person who has hold of the device. Mr Worrell and Mr Illert are facing toward the camera. Mr Abdulsamed pulls the device away from Mr Illert.

17. At 12.59.37 pm, Mr Illert can be seen gesturing to the door beyond the couch.  As he does so he is looking at Mr Worrell. Meanwhile, Mr Abdulsamed is moving the device further in the direction from which Mr Illert initially came. At 12.59.39, Mr Illert turns to his left and starts moving toward the door. As he does so, Mr Worrell moves his left hand, which appears to be on Mr Illert’s back, to take hold of Mr Illert’s right arm. Mr Abdulsamed is in the foreground looking in the direction of Mr Worrell and Mr Illert. Mr Illert takes five steps in the direction of the door. For the first couple of steps Mr Worrell, walking backwards, moves with him trying to stop him. At 12.59.41 pm, Mr Worrell turns away from the camera and appears to takes hold of Mr Illert’s left arm with his two hands. The two men are now adjacent to one end of the long couch. They are at the end furthest from the camera.

18. From 12.59.40 pm to 12.59.42 pm, Mr Abdulsamed moves forward, away from the camera, to assist Mr Worrell. At 12.59.43 pm, Mr Abdulsamed is alongside Mr Illert, facing toward the door beyond the couch.  He reaches out with his left hand to grab hold of Mr Illert’s right arm.  At 12.59.44 pm, Mr Illert can be seen dropping down and backwards to the ground. It is unclear whether Mr Abdulsamed has hold of Mr Illert but it appears so as he is leaning forward toward him and slightly drops his body as Mr Illert drops down. Mr Worrell still has hold of Mr Illert’s left arm. At 12.59.45 pm, Mr Illert has dropped to a sitting position. He is behind the end of the couch closest to the door, however, his head is visible above the back of the couch and his feet can be seen protruding. Mr Worrell is facing toward the camera with his right hand on his two-way radio.  Mr Abdulsamed is standing at Mr Illert’s feet and is leaning over Mr Illert.

    12.59.47 pm – 12.59.48 pm

19. By 12.59.47 pm, Mr Illert is lying down. Mr Abdulsamed and Mr Worrell appear to be standing or leaning over the top of Mr Illert’s chest.  It is unclear whether they are touching him.

    12.59.58 pm – 1.00.01 pm

20. Mr Illert’s feet can be seen protruding from behind the couch. Mr Worrell and Mr Abdulsamed are either side of him. It is not clear but Mr Abdulsamed, who is facing the camera and whose body is obscured from view by the couch, appears to be kneeling or part kneeling. He is gesturing down at Mr Illert with his right hand while looking in the direction of the camera.

    1.00.14 pm – 1.00.16 pm

21. Mr Illert remains lying down.  When the footage starts both of his legs can be seen but then he pulls his legs closer to his body such that they are behind the couch and not in view. Both Mr Abdulsamed and Mr Worrell are leaning over him. A woman in black walks into the frame and moves to the security officers. Between 1.00.14 pm and 1.00.16 pm, Mr Illert’s legs can be seen moving as if flailing about. At the same time Mr Illert’s legs are moving, Mr Abdulsamed is bent over him.  It appears that he is reacting to Mr Illert’s movement or vice versa.

    1.00.24 pm – 1.00.25 pm

22. The woman in black is near the top of the couch, almost level with Mr Illert and the security officers, but is now facing toward the camera and moving back toward the entrance to the room at speed. Mr Illert’s legs are now both protruding from behind the couch. His knees are bent and his feet flat on the floor. Mr Abdulsamed and Mr Worrell are still in positions over him. Their legs are obscured by the couch.

    1.00.32 pm – 1.00.35 pm

23. Mr Illert’s legs can no longer be seen. Mr Worrell has taken up a position at his feet and is bending down over Mr Illert with his right arm resting on the couch. Mr Abdulsamed’s head can be seen above the couch but no more of his body. Mr Abdulsamed is still moving. At 1.00.35 pm, he uses his left hand to balance himself against the wall.

    1.00.39 pm – 1.01.00 pm

24. A lady I understand to be Ms Lewington appears at the entrance and walks away from the camera in the direction of Mr Worrell and Mr Abdulsamed. She appears to be holding a mobile phone which she switches between her left and right hands. At 1.00.39 pm, Mr Abdulsamed and Mr Worrell are looking up toward Ms Lewington.  Between 1.00.40 pm and 1.00.42 pm, Mr Worrell appears to take something out of the back right pocket of his pants, potentially a mobile phone, look at it and then put it back. He is reaching down with his left hand as if holding something in position. During the same period of time, Mr Abdulsamed appears to be doing something behind the couch with his arms whilst his head and shoulders can be seen above the couch. No part of Mr Illert can be seen.

25. By 1.00.52 pm, Ms Lewington has reached the end of the couch and is looking over the top of the couch at Mr Illert. Neither Mr Worrell nor Mr Abdulsamed appear as if they are meeting resistance.

26. At 1.00.54 pm, two women wearing light blue shirts or blouses come into frame and make their way toward Mr Illert, Mr Worrell, Mr Abdulsamed and Ms Lewington. By 1.01.00 pm, they are positioned behind Ms Lewington. One of the two women is putting gloves on. I note Mr Worrell is still reaching down with his left arm and Mr Abdulsamed is still crouching or kneeling down behind the couch. During this segment four other people walk past the altercation.

    1.01.03 pm – 1.01.35 pm

27. From 1.01.03 pm to 1.01.07 pm, Ms Lewington appears to be speaking to Mr Illert. Mr Worrell and Mr Abdulsamed remain in the same position.  At 1.01.07 pm, Mr Worrell stands up and moves away from the couch. At 1.01.10 pm, Ms Lewington reaches her hand out to Mr Illert and, between 1.01.11 pm and 1.01.14 pm, the security officers assist Mr Illert to stand up.  Mr Abdulsamed takes hold of Mr Illert’s right arm, Mr Worrell takes hold of his left and they pull him to a standing position.  At 1.01.13 pm Ms Lewington is tapping on the back of the couch with her left hand and, at 1.01.14 pm she points with her right hand at the couch as though gesturing for Mr Illert to sit down. Mr Worrell appears to let go of Mr Illert at 1.01.16 pm. However, Mr Abdulsamed continues to hold Mr Illert with both hands on Mr Illert’s right arm.

28. Over the period 1.01.16 pm to 1.01.19 pm, Mr Abdulsamed guides Mr Illert backward until he is sitting at the top end of the couch. Meanwhile, from 1.01.04 pm until 1.01.22 pm, the women wearing light blue have walked back toward the camera to collect the device and then they proceed to wheel it away from the camera until they are level again with the top of the couch. From there the woman wearing gloves wheels the device to the wall which lines the top of the camera and appears to be attempting to manoeuvre the device such that it sits parallel to that wall. At 1.01.23 pm, Mr Worrell has to step back a couple of steps from the couch to allow the device through.  He steps forward one step toward the couch at 1.01.28 pm.  Mr Abdulsamed remains about half a metre away from where Mr Illert is sitting on the couch.

29. From 1.01.22 pm to 1.01.35 pm, Ms Lewington stands next to Mr Illert facing away from the camera.  She appears to be speaking with him. Mr Illert gestures to the device as it is wheeled past him at 1.01.24 pm. At 1.01.31 pm, Mr Illert points to himself. During this segment, ten people walk through the Art Gallery area. Three people, who appear to be hospital staff, remain standing in the frame watching the altercation. One stands just over a metre away from Mr Illert and as such she may be contributing to the conversation. The other two stand back with woman wearing light blue. One of those people standing back is the woman wearing black who left the room earlier.

    1.01.37 pm – 1.02.10 pm

30. Ms Lewington continues to speak to Mr Illert with her back turned to the camera.  Mr Illert remains sitting down. It appears that he points to Mr Worrell at 1.01.41 pm and then to his device at 1.01.43 pm, although Mr Worrell is standing between Mr Illert and the device so it is difficult to be sure. However, on the second occasion Mr Worrell turns to look at the device, which suggests that Mr Illert was gesturing at the device on that occasion. At 1.01.45 pm, Ms Lewington points with her left hand in the direction of the device. Mr Illert then appears to gesture with his right hand at Mr Abdulsamed at 1.01.46 pm. Again it is difficult to tell whether Mr Illert is pointing at the device or Mr Abdulsamed because Mr Abdulsamed is standing between Mr Illert and the device.

31. At 1.01.47 pm, Mr Worrell turns his head again in the direction of the device. However, I am inclined to think that Mr Illert was pointing at Mr Abdulsamed as directly after Mr Illert makes the gesture, at 1.01.47 pm, Mr Abdulsamed tips his head forward toward Mr Illert as though he is speaking to him. Mr Worrell and Mr Abdulsamed remain in the same positions as they were in the previous segment of footage, except that Mr Worrell takes a couple of steps toward Mr Illert at 1.01.40 pm. Mr Illert has his head turned in the direction of the device and the security officers from 1.01.45 pm to 1.01.53 pm.  After that, he turns back to face Ms Lewington who continues to speak to him and make gestures toward the device until the end of the footage at 1.02.10 pm.

32. From 1.01.37 pm to 1.01.52 pm, the woman wearing gloves continues to manoeuvre the device until it is parallel with the wall at the top of the frame. She then joins the remaining other lady wearing blue and another observer who are standing about two or more metres back from Mr Illert. At 1.01.53 pm, the woman wearing black exits to the left of the frame. At 1.01.56 pm and 1.01.57 pm respectively, two further women enter the frame from the entrance where the camera is located. They walk forward away from the camera until they are about four metres away from Mr Illert. One of the women is carrying a case.

    Art Gallery West

33. The Art Gallery West camera appears to be located on the left hand side of the Art Gallery area if you walk into the room from the entrance where the Art Gallery South camera is located. The couch lines the top of the frame.  To the left of the couch one can see the door with the window that was beyond the couch when using the Art Gallery South viewpoint. As this footage covers the same incidents as the Art Gallery South footage, I will mainly focus on the aspects of this footage that clarify or add detail to the Art Gallery South footage. I again note that the timing differs slightly between the two cameras.

    12.58.56 pm – 12.59.18 pm

1. Mr Illert enters from right of screen wheeling his device. Immediately following him is Mr Abdulsamed. Mr Worrell enters and when he reaches Mr Illert he places his left hand on his back. Mr Abdulsamed heaves the device away from Mr Illert. Mr Illert can be seen to have planted his feet firmly and is using his weight to resist the force of Mr Abdulsamed’s pulling. Mr Worrell does not appear to be using any force against Mr Illert nor does he appear to be doing anything other than attempting to guide him toward the entrance. It is unclear at what time Mr Abdulsamed manages to release the device from Mr Illert’s grasp but it is clear that, by 12.59.09 pm, Mr Illert has let go and Mr Abdulsamed is in control of the device.

2. At 12.59.09 pm, Mr Illert can be seen pointing toward the door at the top of the frame to the left of the couch.  Mr Worrell remains slightly to Mr Illert’s right and still has his left hand on Mr Illert’s back as if he remains intent on guiding Mr Illert to the right of frame. Mr Worrell has his back to the camera. At 12.59.10 pm, Mr Illert turns to make his way toward the door in the top left corner of the frame. Mr Worrell takes three paces backwards as he tries to keep up with Mr Illert. He has his left arm outstretched toward Mr Illert but it is unclear if he is making contact with him. At 12.59.13 pm, Mr Worrell turns and with his left hand he takes hold of Mr Illert’s left upper arm. Mr Worrell then takes hold of Mr Illert’s left upper arm with his right hand as well. Mr Illert is reaching out with his right arm towards the door. Mr Abdulsamed, who has moved from the device to the entrance at the right of the frame, is making his way toward Mr Worrell and Mr Illert.

3. At 12.59.14 pm Mr Worrell has a firm hold of Mr Illert and has stopped him getting any closer to the door. Mr Illert can be seen trying to pull away. Mr Abdulsamed walks to a position immediately in front of Mr Illert, who is facing into the room with his back facing the wall which lines the top of the frame.  He is immediately to the left of the couch and, I estimate, about a metre from the door in the top left corner of the frame. At 12.59.15 pm, Mr Abdulsamed reaches for Mr Illert’s right arm with his left hand. Judging by the way he has positioned his feet it appears he intends to grab Mr Illert’s arm and pull or guide him away from the door and in a direction to the right of screen. Mr Worrell still has hold of Mr Illert’s left arm with both hands. Mr Worrell can be seen attempting to move Mr Illert toward him and back to the right of screen. Mr Illert has set his feet and is pulling away in the opposite direction. At 12.59.16 pm Mr Illert has buckled at the knees and dropped down into a sitting position. He is immediately to the left of the couch as you look at the frame. Mr Worrell has his left arm and Mr Abdulsamed his right. At 12.59.18 pm, Mr Abdulsamed appears to be talking into his radio which he has in his right hand. With his left hand he still has hold of the sitting Mr Illert. Mr Worrell has his right hand on the left end of couch and may be holding Mr Illert with his left hand.  He has his left foot between Mr Illert’s legs. At 12.59.18 pm, Mr Worrell is stepping his left foot out and toward the back of the couch.

   12.59.31 pm – 12.59.35 pm

4. At 12.59.31 pm Mr Illert is now laying roughly at a right angle to the wall, immediately to the left of the couch as you look at the frame. His head is closest to the wall and his feet are protruding into the room. Mr Worrell is behind the couch to his right. He does not appear to be holding Mr Illert. Mr Abdulsamed is to his left about a metre away from the door. Mr Abdulsamed’s left knee is bent and is across the chest area of Mr Illert.

   1.00.06 pm – 1.00.14 pm

5. Mr Illert has moved his position. He is now laying parallel to the wall. His head is behind the couch and his feet near the door in the top left corner of the frame. Mr Abdulsamed is crouched between Mr Illert’s head and the wall which lines the top of the frame. Mr Worrell is on Mr Illert’s left hand side leaning over him with his right elbow resting on the couch. At 1.00.09 pm, Mr Abdulsamed appears to be struggling with Mr Illert. It causes Mr Worrell to reach down with his left arm to take hold of or block Mr Illert using his left hand. Mr Abdulsamed continues to struggle with Mr Illert. He has his right hand on the back of the couch and his left hand on the wall in an attempt to maintain balance.  The couch moves in the struggle.

6. At 1.00.12 pm, Mr Abdulsamed appears to sit on Mr Illert’s right shoulder.  It is unclear if this was a deliberate manoeuvre to end the struggle or if he lost balance. At the same time, Ms Lewington enters from the entrance at the right of the frame. Both Mr Worrell and Mr Abdulsamed are occupied restraining Mr Illert, who remains laying on the floor but has rotated slightly such that his head is further from the wall than it was and his feet are closer. However, at 1.00.14 pm, both the security officers look up in Ms Lewington’s direction. I note, as discussed above, that there appears to be a person watching the altercation through the window of the door at the top left of the frame.

   1.00.16 pm – 1.00.19 pm

7. Ms Lewington moves further into the room. Mr Abdulsamed, Mr Worrell and Mr Illert remain in the same position as last described. Mr Abdulsamed and Mr Worrell are watching Ms Lewington approach.

   1.00.21 pm – 1.00.32 pm

8. At 1.00.21 pm, the scene is as previously mentioned and Ms Lewington is walking toward Mr Illert and the security officers. By 1.00.24 pm, Ms Lewington has made her way to where Mr Illert is laying. She stands next to his head, leaning over him, with her back to the camera. Mr Abdulsamed and Mr Worrell remain in the same position restraining Mr Illert. At 1.00.27 pm, the two women wearing light blue enter from the entrance at the right of frame and make their way over to Mr Illert, Mr Abdulsamed, Mr Worrell and Ms Lewington.

   1.00.34 pm – 1.01.04 pm

9. At 1.00.36 pm, the women wearing light blue move over to where the device is and take hold of it. They appear to be moving it so that it does not obstruct the movement of people through the Art Gallery area. At 1.00.41 pm, Mr Abdulsamed gets to his feet. He then takes hold of Mr Illert’s right arm with both his hands and Mr Worrell grabs his left arm. The two men pull Mr Illert up to his feet. Ms Lewington is still standing immediately to Mr Worrell’s right, facing away from the camera. Once on his feet, Mr Illert is walked backwards and around the left hand side of the couch to a position where he is then sat on the couch. By this time, at about 1.00.52 pm, the women wearing light blue wheel his device from right to left past him. Ms Lewington has moved to stand to the right of Mr Illert.  She is facing him, with her left side to the camera, and appears to be having a conversation with him. Mr Illert appears to point once at the device as it is being wheeled past him at 1.00.56 pm. The footage ends at 1.01.04 pm.