Citation: [2015] NSWLC 16
Court: Local Court of New South Wales
Date: 14 April 2015
Judge: Heilpern LCM
Background
The plaintiff was sitting on a roundabout at a busy intersection in Casino, NSW, in October 2010 when police attended. Officers spent approximately one hour negotiating with him before he was shot in the back with a Taser by Senior Constable Reddell. The plaintiff had been intoxicated and highly agitated throughout the encounter, and had made repeated threats against police, his girlfriend, and himself.
The plaintiff sued the State of New South Wales for assault (also described as battery, a form of trespass to the person). He argued that the use of the Taser was unlawful and constituted an unjustified use of force.
The incident had also been the subject of prior criminal proceedings, and the civil hearing took place more than four years after the events. This delay had practical consequences for the assessment of witness evidence.
Legal Issues
- Whether the physical contact constituted an assault (battery) against the plaintiff
- Whether the police had lawful justification to detain the plaintiff under s 22 of the Mental Health Act 2007
- Whether the force used, specifically the deployment of a Taser, was reasonable and not excessive in the circumstances
- Whether police were required to give a warning before using the Taser, either under statute or at common law
Decision
The Magistrate first addressed the onus of proof. The plaintiff bore the burden of establishing that an assault occurred and the harm caused. Once established, the burden shifted to the defendant State to prove lawful justification and that the force used was reasonable and not excessive.
On witness credibility, the Magistrate preferred the evidence of Senior Constable Reddell over that of the plaintiff. Reddell was assessed as a cogent and honest witness who acknowledged gaps in his memory without deflection. The plaintiff, by contrast, was found to have given patchy genuine recollection filled in with self-serving reconstruction, and his evidence was affected by his intoxication and mental state at the time of the incident. Some inconsistencies in Reddell's evidence, including his claimed prior knowledge of the plaintiff's resistance to OC spray, were found to reflect genuine but mistaken subsequent justification rather than dishonesty. These inconsistencies did not materially affect the Magistrate's overall assessment of his credibility.
On the central question of whether the Taser use was justified, the Magistrate found that police had lawful authority to detain the plaintiff under s 22 of the Mental Health Act 2007 and that detention had been attempted through extensive negotiation before any force was used. The Magistrate accepted that Reddell had genuinely weighed up the available options before deploying the Taser, rejecting unarmed restraint, baton, and OC spray as inappropriate in the circumstances. The plaintiff was walking off the roundabout onto a road when the Taser was deployed, and the Magistrate was satisfied that violent confrontation was imminent.
On the question of warnings, the Magistrate found that the LEPRA warning provisions did not apply to Mental Health Act detentions at the relevant time. At common law, no warning was required in these circumstances: the plaintiff was plainly aware of police intentions through their prolonged negotiation and encirclement. The Magistrate also accepted that issuing a Taser warning would likely have provoked a violent reaction and rendered the option unavailable. The claim was dismissed.
Orders Made
• The claim is dismissed
• As liability has not been proven, no consideration of damages is necessary
• Costs to be determined at a time suitable to the parties
Key Takeaways
- The Local Court confirmed that in a civil assault claim, once the plaintiff establishes that an assault occurred, the burden shifts to the defendant to prove lawful justification and that the force used was reasonable and not excessive.
- A prolonged and genuine attempt at negotiation before resorting to force was a significant factor in the Magistrate's conclusion that Taser use was reasonable in this case.
- Under s 22 of the Mental Health Act 2007, police may have lawful authority to detain a person, and the reasonableness of any force used is assessed against all circumstances at the time, including the subject's behaviour, known history, and the options available to officers.
- No statutory or common law requirement existed, on these facts, to warn the plaintiff that a Taser would be deployed before it was used, particularly where a warning would likely have provoked violence or made the option unworkable.
- Minor inconsistencies in police witness evidence, particularly on details difficult to recall after four years, did not necessarily undermine overall credibility; the court's assessment turned on the witness's honesty and demeanour across the whole of their evidence.
Legislation and Cases Referenced
Legislation:
- Mental Health Act 2007 (NSW), ss 22, 81
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 230
- Police Act 1990 (NSW), s 6
Cases:
- McIntosh v Webster (1980) 43 FLR 112
- R v Ali Alkan [2010] NSWLC 1
- Woodley v Boyd [2001] NSWCA 35
- Williams v State of New South Wales (District Court (NSW), Blanch CDCJ, 22 February 2014, unrep)