Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Irwin v State of New South Wales [2012] NSWCA 441 Hearing dates: 11 December 2012 Decision date: 11 December 2012 Before: Hoeben JA at [1], [26] Ward JA at [2] Decision: Dismiss summons for leave to appeal with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - summons for leave to appeal - no issue of principle - small amount in dispute - findings of trial judge not glaringly improbable Legislation Cited: District Court Act 1973 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Mental Health Act 2007 (NSW) Police Act 1990 (NSW) Cases Cited: Browne v Dunn (1829) 57 ER 909 Christie v Leachinsky [1947] AC 573 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Category: Principal judgment Parties: David Leslie Irwin (Applicant) State of New South Wales (Respondent) Representation: Counsel: Ms A Moen (Applicant) G Bateman (Respondent) Solicitors: Emery Partners (Applicant) Crown Solicitors Office (Respondent) File Number(s): CA 12/107759 Decision under appeal Date of Decision: 2010-03-09 00:00:00 Before: Balla DCJ File Number(s): 09/339417 Judgment (ex tempore) 1HOEBEN JA: Ward JA will deliver the judgment in this matter. 2WARD JA: This is an application for leave to appeal from the judgment of Balla DCJ in the District Court dismissing the applicant's claim against the New South Wales Police for damages for various alleged intentional torts (trespass to person, trespass to land, trespass to property, assault, battery and false imprisonment) relating to an incident in October 2006 in which police officers attended Mr Irwin's home, entered his house at his invitation, refused to leave the house when asked to do so and subsequently restrained him and took him to Maitland Hospital where he was handcuffed to a bed for some time. 3Mr Irwin was examined and determined not to be mentally ill or mentally disordered. He was discharged from the hospital after about four hours. There were no charges laid against him by the police. 4By way of background, the police had initially attended Mr Irwin's premises in response to a call for urgent assistance from ambulance officers (who had in turn earlier been called to the premises as a result of a 000 call by a friend of Mr Irwin). The initial radio call to the police was to the effect that a male was fitting and had become combative with ambulance officers and was possibly in a confused state. 5There was evidence before her Honour from the ambulance officers as well as the police officers and various other including medical staff at the hospital (and friends or relatives of Mr Irwin) as to his behaviour during the course of the incident and/or at hospital. There was also evidence that less than a month before the incident Mr Irwin had been the subject of an assault by his son who was described as "an ice addict" and that this had caused serious facial injuries. 6The primary judge held that s 24 of the Mental Health Act 2007 (NSW) provided lawful justification for all of the police conduct prior to the arrival of the police with Mr Irwin at the hospital and that the conduct in detaining him at the hospital was legally justified by s 6 of the Police Act 1990 (NSW) and common law doctrines of preventing threatened breaches of the peace as well as the doctrine of necessity. 7The proposed appeal seeks to raise eight grounds of appeal. The first three relate to the application of the Mental Health Act and the balance relating to the findings made by the primary judge in respect of the provisions of the Police Act and the common law defences. 8The applicant claims that her Honour erred in making certain key factual findings and erred in the application of statute and common law to the facts. The applicant further claims that, even if grounds were established for a lawful justification defence, the police failed to exercise their powers in accordance with the common law and statutory obligation to provide a sufficient contemporaneous explanation to the applicant as to why they were detaining him and taking him to Maitland Hospital. 9Section 24 of the Mental Health Act provides lawful justification for conduct in detaining and transporting a person to hospital if (pursuant to subs (1)(a)) there were reasonable grounds to believe that this would be beneficial to the welfare of the person or if (pursuant to subs (1)(b)) there were reasonable grounds to believe that the person would attempt to kill himself or herself or cause serious bodily harm to himself or herself or another. 10As to the questions in issue in relation to the operation of the provisions of the Mental Health Act, the applicant raises the question whether there was use of force that was reasonably necessary and as to whether there was sufficient compliance with the obligation to provide an explanation at the time for the conduct (whether under s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) or the common law). Reference has been made, and we have considered, various passages in decisions State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422, New South Wales v Delly [2007] NSWCA 303 and, in the written submissions to Christie v Leachinsky [1947] AC 573. 11As to the questions in issue in relation to the balance of the grounds of appeal, issue was raised as to the primary judge permitting reliance on defences said not to have been stipulated before closing submissions; whether adequate reasons to permit those defences were given (it being conceded that there were no specific reasons given for the finding that the police could rely on those defences and whether the police had discharged the onus of establishing those defences); on the balance of probabilities (including issues as to the degree of reasonable force used and the sufficiency of what her Honour accepts was said to the applicant at the time). 12The applicant submits that the appeal involves issues of principle and questions of general public importance as to the extent of police powers, the degree of reasonable force and the content of the duty of police to explain their actions. As to the provisions of s 127(2)(c)(ii) of the District Court Act 1973 (NSW) it is submitted that there are genuine prospects of an award of $100,000 or more if aggravated or exemplary damages were to be awarded (but it is also conceded that if the only success on the appeal relates to the period of detention at the hospital then it is difficult to see that the damages could be as high as that). 13For the respondent it is contended that the findings of fact in relation to s 24 cannot be said to be glaringly improbable, noting that her Honour had the benefit of contemporaneous records such as the transcript of the relevant emergency calls and the hospital and ambulance records as well as the police reports. 14As to the period of time at the hospital, the police officers' evidence (accepted by her Honour) was that they remained there, albeit with Mr Irwin handcuffed to the bed, until he had settled down. It was said that this was not only at the request of hospital staff but also consistent with the provisions of a Memorandum of Understanding between the New South Wales Police and New South Wales Health which acknowledges that the role of police is to prevent breach of the peace or to prevent injury during the handover of patients to the hospital. 15The respondent denies that the issue as to the extent of the police powers from the time Mr Irwin was at the hospital was a new issue on the pleadings (since there was already a plea that the police remained at the hospital to ensure the safety of the applicant, the hospital staff and others) and contends that her Honour was merely permitting the pleading to be recharacterised by reference to existing legal principles and the evidence. 16In any event the applicant obtained an adjournment to put on further evidence in relation to that issue from three of the nursing staff and the respondent submits that there was therefore no prejudice suffered as a result of the amendment being allowed. It is submitted by counsel for the applicant (Ms Moen) that there was some prejudice suffered in that the applicant had lost the opportunity to cross-examine the police officers in relation to matters the subject of that additional evidence but there was no application to recall the police officers for that purpose. 17The key factual finding that is said to be the subject of the error by her Honour is the finding that the primary judge made in relation to the acceptance of Senior Constable Bernadine's evidence in relation to what happened at the home prior to the time when Mr Irwin was restrained. In relation to that finding, which is said to be a key factual finding, there were inconsistencies (to which her Honour had regard), as between Mr Fowler and Senior Constable Bernadine. The applicant himself had no or little recollection of the events. Decision 18It is trite to note that leave should only be granted where there a substantial reasons to allow an appellate review, such as where there is an error of principle which results in substantial injustice. The requirement in the District Court Act for leave to appeal from a judgment where the quantum in dispute is less than $100,000 implicitly recognises the import of keeping in mind the proportionality of the dispute where there is no question of principle and there is only a small amount in dispute, leave will usually refused. 19I do not consider that the issues sought to be raised in the present case by way of appellate review of her Honour's decision involve any substantial issue of principle. I have considered the passages in New South Wales v Riley and in New South Wales v Delly to which reference has been made and I note that the approach recognised by their Honours in those cases is that an arrested or detained person need not be given detailed particulars of the case against him or her but must be told why he or she is being arrested or detained, as the case may be, and that how much information the person needs to be given will depend on the circumstances. 20Her Honour carefully considered the evidence of the witnesses to the incident and concluded that the applicant's behaviour was violent and irrational, both before the time the police were invited to enter the house and during the time that they were in the house. Her Honour accepted the evidence that Mr Irwin had pushed an ambulance officer and had attempted to throw himself out of a closed window and that the information available to the police as well as their own observations was sufficient for them to form a reasonable belief that Mr Irwin had displayed many of the indicia of mental disturbance. 21Her Honour accepted that Mr Irwin's behaviour towards the police officers during this time and after they left the house was violent and irrational. Her Honour was satisfied that both alternatives of s 24 applied and that there was a sufficient explanation given to Mr Irwin as to why the police officers were restraining him and taking him to the hospital, namely for a mental health assessment and treatment of his injuries. Her Honour found that the explanation was given at the first reasonable opportunity (after Mr Irwin had been handcuffed in the house). 22While her Honour did not give a separate judgment as to the reason for allowing reliance on the statutory defence under s 6 and the common law defences, the respondent submits this was not called for in the circumstances as this was, in effect, an implication of what was already in the defence. 23As to the position at the hospital there was evidence in at least one of the nurses' notes that Mr Irwin was "aggressive". Her Honour accepted that the police officers had reasonably believed there was a threat of self harm or harm to others from the evidence that they gave as to the statements made by the applicant in the hospital and that the use of handcuffs was reasonably necessary. 24A finding of fact by a trial judge based on the credibility of a witness is not to be set aside simply because an appellate court thinks that the probabilities of the case are against or even strongly against that finding of fact. It is necessary for it to be shown that the trial judge has failed to use or has palpably misused his or her advantage (Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479). 25The matters raised in the submissions in this case do not, in my opinion, raise a sufficient basis for including that a review of the factual findings in the present case would be likely to lead to a different conclusion being reached on a rehearing of the matter. I am not satisfied that there is any issue of principle sufficient to warrant leave to appeal in the present case and I would dismiss the summons for leave to appeal with costs. 26HOEBEN JA: I gratefully accept and adopt the statement of facts by Ward JA. The essence of this appeal is a challenge to the fact finding of the primary judge. The relevant principles dealing with that kind of challenge in an appeal are set out in Fox v Percy [2003] HCA 22, also at 214 CLR 118. I specifically read from the statements of principle at paras [28] and [29] of that judgment being part of the judgment of the plurality Gleeson CJ and Gummow and Kirby JJ. 27I also read in part from para [90] of that decision being part of the judgment of McHugh J where his Honour said: It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based expressly or inferentially on demeanour. Those cases recognise in accordance with a long line of authority that it may be done but there must be something that points decisively, not merely persuasively, to error on the part of a trial judge in acting on his or her impressions of the witnesses. Recently in State Rail Authority NSW v Earthline Constructions Pty Ltd, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it. 28In a carefully reasoned judgment her Honour analysed the competing evidence and set out why she preferred the evidence of some witnesses to that of others. In relation to the events at the applicant's home the evidence of the two police officers was corroborated in significant respects. As a result there was nothing "glaringly improbable" in her Honour's findings nor were those findings "contrary to compelling inferences". Once those factual findings were made the applicability of s 24 of the Mental Health Act 1990 was clear. 29In relation to the events at the hospital, the evidence of the police officers was corroborated by the evidence of the applicant's sister. She said that she could hear him before she could see him. The implication was clear and provided a dramatic illustration of the noise the applicant was making and of his state of mind. The evidence of the police officers was also corroborated by contemporaneous documents, the s 24 notice, the COPS report and the 5.30pm admission notes by Dr Henderson as to the applicant's aggression and refusal to cooperate. Again there was nothing "glaringly improbable" in her Honour's fact finding on this issue. On the contrary, for the reasons indicated, there was a strong evidentiary basis. On those findings of fact s 6 of the Police Act applied. 30I should say something about two issues specifically raised by the applicant in his written submissions. The applicant challenges some of her Honour's fact finding on the basis that some matters were not specifically put to the applicant in cross-examination. There is no substance to this criticism. In most cases this was not done because the applicant said he had no recollection of what had happened. In others the issue was clearly joined between the parties. The rule in Browne v Dunn (1829) 57 ER 909 does not require that every single disputed fact be put to a witness in cross-examination, rather it is a rule of fairness. Provided the issue has been properly joined and the position of the witness in a disputed issue is clear the rule has been complied with. 31The second issue relates to the three affidavits from hospital staff relied upon by the applicant in reply. It is clear that the deponents of those affidavits had no independent recollection of the events of that night. Their evidence was restricted to ex post facto interpretation of notes, some of which had not even been made by the deponent. In those circumstances her Honour was entitled to prefer the evidence of those who did have a clear recollection of the events of that night. 32I agree with the orders proposed by Ward JA. The orders of the Court will be those orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2012