Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: State of New South Wales v Talovic [2014] NSWCA 333
• Hearing dates: 4 August 2014
• Date of orders: 25 September 2014
• Decision date: 25 September 2014
• Before: Basten JA at [1]; Emmett JA at [47]; Tobias AJA at [161]

Decision

(1) Grant the State leave to appeal from the judgment and orders of the District Court made on 10 December 2013.; (2) Direct that, within 7 days of the date of this judgment, the State file the draft notice of appeal in the form contained in the white folder.; (3) Otherwise dispense with the rules with respect to service of the notice of appeal.; (4) Set aside order (1) made by the District Court, giving judgment for Mr Talovic in an amount of $85,000.; (5) Remit the matter to the District Court on the basis that: (a) Mr Talovic is entitled to an award of compensatory damages for trespass to land in the amount of $5,000; (b) Mr Talovic is not entitled to an award on account of exemplary damages; (c) there be a retrial of his claim for compensatory damages for false imprisonment.; (6) Set aside order (2) with respect to the costs of the trial and direct that the question of costs, if not otherwise resolved, be in the discretion of the judge determining the retrial.; (7) Otherwise dismiss the appeal to this Court.; (8) Order that Mr Talovic pay 75% of the State’s costs of the appeal.; (9) Grant Mr Talovic a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs in this Court.

• Catchwords: MENTAL HEALTH – confinement and restraint of mentally ill persons and similar orders – detention by police under s 22 of the Mental Health Act 2007 (NSW) – whether the prerequisites of that section were satisfied – construction of the undefined phrase “mentally disturbed” – whether a subjective test applies to the first prerequisite of s 22(1); PROCEDURE – procedural fairness – whether the police officers were given an opportunity of dealing with potentially adverse findings by the trial judge in respect of their sworn evidence; TORTS – trespass to land – whether the occupier’s licence to enter extended to a search of the premises; DAMAGES – exemplary damages – whether the award of exemplary damages was justified on the facts, in that compensatory damages were an insufficient expression of disapproval
• Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 17, 18; Crimes Act 1900 (NSW), ss 31A, 574B; Crown Proceedings Act 1988 (NSW), s 5; District Court Act 1973 (NSW), s 127; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99; Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B; Mental Health Act 1983 (NSW), s 74; Mental Health Act 1990 (NSW), ss 9, 10, 24; Mental Health Act 2007 (NSW), ss 4, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 81; Mental Health Commission Act 2012 (NSW); Mental Health Legislation Amendment Act 1997 (NSW), Sch 1.1; Uniform Civil Procedure Rules 2005 (NSW), r 51.53
• Cases Cited: Beckwith v The Queen [1976] HCA 55; 135 CLR 569; Coco v The Queen [1994] HCA 15; 179 CLR 427; George v Rockett [1990] HCA 26; 170 CLR 104; Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1; Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315; Hussien v Chong Fook Cam [1970] AC 942; Hyder v Commonwealth of Australia [2012] NSWCA 336; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; McArthur v Williams [1936] HCA 10; 55 CLR 324; State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125; State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226; State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496; Stewart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215; XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd [1985] HCA 12; 155 CLR 448
• Texts Cited: P Gillies, The Law of Criminal Investigation (1982, Law Book Co); Mental Health Act Implementation Monitoring Committee, Caring for Health: Proposals for Reform – Mental Health Act 1990 (May 1996); NSW Law Reform Commission, Report 135: People with Cognitive and Mental Health Impairments in the Criminal Justice System – Diversion (June 2012); NSW Legislative Assembly, Parliamentary Debates (Hansard), 22 November 1983; 9 April 1997
• Category: Principal judgment
• Parties: Josip Talovic (Applicant); State of New South Wales (Respondent)
• Representation: Counsel: Mr R Lancaster SC with Mr G Bateman (Applicant); Mr J Fernon SC with Mr R de Meyrick (Respondent); Solicitors: Crown Solicitor’s Office (NSW) (Applicant); Adams & Co Lawyers (Respondent)
• File Number(s): 2013/382772

Decision under appeal

• Court or tribunal: District Court of New South Wales
• Date of Decision: 10 December 2013
• Before: Bozic DCJ
• File Number(s): 2012/385103

Judgment

1. BASTEN JA: On 17 November 2011 the respondent, Josip Talovic, was apprehended by two police officers who arranged for his removal from his home to a mental health facility at Concord Hospital. He sued for damages for wrongful arrest, false imprisonment and trespass. He obtained a judgment in the District Court against the State of New South Wales (the appellant) in an amount of $85,000. The State seeks leave to appeal against both the finding of liability and the quantum of damages. Leave is required because the amount in issue is less than $100,000: District Court Act 1973 (NSW), s 127(2).

2. Mr Talovic had committed no offence. To detain him against his will the police required a statutory justification. They relied upon the powers conferred by s 22 of the Mental Health Act 2007 (NSW). The scope of that provision is fraught with difficulty, as will be considered shortly. In 2009 there were 22,234 involuntary admissions to a mental health facility involving police acting under s 22: NSW Law Reform Commission, Report 135: People with Cognitive and Mental Health Impairments in the Criminal Justice System – Diversion (June 2012), par 4.37. The importance of obtaining whatever clarification may be available as to the scope of s 22 is clearly a matter of public importance. The State should have leave to appeal.

Scope of s 22

3. Where there is doubt as to the precise scope of a provision permitting a state authority to deprive a person of his or her liberty without consent, it is well-established that the statute should be construed in a manner protective of individual liberty: Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437. However, that principle is less readily applied where the intention of the legislature to confer a power overriding the wishes of an individual is express and where the purpose of the legislation is beneficial for the individual: cf Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576 (Gibbs J). Section 22 is not a common example of the many provisions in statutes which have both beneficial and penal characteristics. Most are protective of one class of people and impose reciprocal obligations, breach of which may be visited by penal sanctions, on another. The Mental Health Act, s 22, provides limitations on the rights and freedoms of particular individuals, in their own interest.

4. Section 22 is not to be viewed in isolation, but its terms must be identified before its scope and context can be considered:

22   Detention after apprehension by police

(1)   A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:

(a)   the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b)   it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2)   A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

(a)   the chapeau

5. There are a number of features of this provision which warrant attention. First, it is confined in its scope to the conferral of power on a police officer. This constitutes one of a number of provisions contained in Ch 3, Pt 2 of the Mental Health Act, which provide for persons to be taken to and detained in a mental health facility, involuntarily. A separate power is conferred on ambulance officers, who may require police assistance.

20   Detention on information of ambulance officer

(1)   An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2)   An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

21   Police assistance

(1)   A police officer to whose notice a police assistance endorsement on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable:

(a)   apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or

(b)   cause or make arrangements for some other police officer to do so.

(2)   A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

6. Secondly, s 22(1) allows a police officer to deal with a person found “in any place”, a phrase designed to extend to both public places and private property. This was a variation on the original formulation of the provision. Section 22 commenced as cl 77 of a Mental Health Bill 1982. Before it was enacted, the provision was reformulated (as cl 74) in the Mental Health Bill 1983 to confer a power of apprehension on a police officer who finds a person “in a public place” and satisfying certain preconditions which are similar to those now contained in s 22(1). Clause 74 became s 74 of the Mental Health Act 1983 (NSW), though it did not commence prior to the repeal and replacement of that Act by the Mental Health Act 1990 (NSW). Section 24 of the 1990 Act referred to a police officer who “finds a person in a public place who appears to be mentally disturbed”. The omission of the phrase “a public place” and its replacement with “in any place” occurred by the Mental Health Legislation Amendment Act 1997 (NSW), Sch 1.1[2]. The Minister, in the Second Reading Speech (NSW Legislative Assembly, Parliamentary Debates (Hansard), 9 April 1997) stated at p 7288:

“The police cannot use section 24 unless the person is found in a public place. As a result, police are precluded from using these special powers when a person is on private premises. They must instead fall back on general police powers to respond to the situation, and the person suffering from a mental illness will be dealt with in the same manner as any other alleged criminal offender. This ordinarily means the person will be taken into police custody, with no referral to a hospital until the person is seen by a magistrate.”

7. The 1990 Act had itself been subject to monitoring by a committee: as the Minister recognised in the Second Reading Speech, the committee did not support the proposal to broaden police powers in this respect, on the basis that there was no evidence that the limitation had caused problems: Mental Health Act Implementation Monitoring Committee, Caring for Health: Proposals for Reform – Mental Health Act 1990 (May 1996) at pp 14-15. Whether the amendment was part of the reason for an increase of more than eightfold in the use of this provision between 2000 and 2009 is not known. The expansion was critical to the availability of the provision in the present case.

8. Thirdly, the section refers to a person “who appears to be mentally ill or mentally disturbed”. The respondent contended (and the trial judge accepted) that this involved an objective test: however, an entirely objective test would make little sense. The purpose of the section is to confer powers on a police officer: it must be the police officer who forms a view as to whether the person falls within its terms. The second qualification in the provision requires that the officer “believes on reasonable grounds” that paragraphs (a) and (b) are satisfied. In s 20, belief on reasonable grounds that a person “appears to be mentally ill or mentally disturbed” is a precondition to an ambulance officer taking the person to a mental health facility. By comparison with these two express requirements, the absence of a requirement for reasonable grounds in the first limb of s 22(1) is apparently intentional. Indeed, the absence of a requirement for reasonable grounds as to this belief has been consistent since cl 77 of the 1982 Bill. The 1983 Bill and the 1983 Act both included the requirement that the person “appears to the member of the police force…”, but the omission of the reference to whom the person must appear to be mentally ill (or mentally disturbed or disordered) probably reflected a view that these words were mere surplusage. It should therefore be sufficient if the police officer holds a genuine belief that the person was mentally ill or mentally disturbed.

9. Fourthly, what must appear to the police officer is that the person is “mentally ill or mentally disturbed”. The 2007 Act includes definitions of “mental illness”, “mentally ill person” and “mentally disordered person”: ss 4(1), 14 and 15. It contains no definition of “mentally disturbed”. This omission appears to be deliberate. Thus, in the 1983 Bill and in the 1983 Act, the person must have appeared “to be mentally disordered” a term which, although now defined, was not then a defined term. The 1990 Act, which included definitions of “mentally ill persons” and “mentally disordered persons” (ss 9 and 10) changed its equivalent to s 22 (s 24) to refer to a person appearing to be “mentally disturbed”, without reference to mental illness or mental disorder. Thus in the second reading speech to the Mental Health Bill 1983, the Minister said that: “The police officer is not required to make a psychiatric judgment; it is enough that a person appears to the police officer to be mentally disordered.” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 November 1983 at 3088.)

10. This history demonstrates an intention not to require police officers to understand and apply the defined terms which have their roots in psychology and psychiatry. Why the term “mentally ill” was added in 2007 is unclear, but it may have been thought to broaden, rather than narrow, the available power. As it is an alternative to being “mentally disturbed”, and the latter phrase cannot be thought to be more restrictive than “mentally ill”, it is unlikely that any change was effected by including the defined term as a basis for the exercise of the statutory powers.

11. The trial judge considered that the term “mentally disturbed” had the same meaning as “mentally disordered”. However, the history indicates that it was intended not to have the elements of a professional diagnosis. It would be inconsistent with the description of s 22 as involving a “‘street level’ judgment that clinical intervention is required’” (Professor Neil Rees quoted by the NSW Law Reform Commission at par 8.7) if the meaning of “mentally disturbed” were restricted in such a way. The Commission considered that the concept of being “mentally disturbed” was broader than that of being mentally ill or mentally disordered: that conclusion should be accepted. The trial judge was wrong in this respect.

12. Fifthly, the power conferred on the police officer is to “apprehend” the person and “take” the person to a mental health facility. The power of apprehension is also conferred by s 21(1)(a), when a police officer is assisting an ambulance officer to take the person to a facility. That this power (not described as an arrest) involves detention and restriction on liberty is clear. It is subject to the requirement that the officer use no more than “reasonable force” and not restrain the person in any way that is not “reasonably necessary in the circumstances”: s 81(2).

(b)   paragraphs (a) and (b)

13. It is then necessary to turn to the second limb of s 22(1) which requires the officer to act upon a belief which must be held “on reasonable grounds”. Each of paragraphs (a) and (b) has some awkward usage of language. As they are cumulative and as paragraph (b) appears to envisage a less complex requirement, it is convenient to start with paragraph (b).

14. Paragraph (b) involves a comparative exercise: that is, the officer must consider whether it would be more beneficial to the person’s welfare to be dealt with “in accordance with this Act” rather than “otherwise in accordance with law.” To be dealt with in accordance with this Act involves being taken to a mental health facility where the person must be examined as soon as practicable and within 12 hours by an authorised medical officer: s 27(a). Continued detention is prohibited unless a medical officer determines that the person is a mentally ill person or a mentally disordered person: s 27(a). There is provision for further review by a second medical officer who must be a psychiatrist: s 27(b). If found to be mentally ill or mentally disordered, the person must also be taken before the Mental Health Review Tribunal as soon as practicable after admission: s 27(d).

15. What is encompassed in dealing with someone “otherwise in accordance with law” is less clear. If there were no power to deal with a person other than to leave alone, this phrase would not be apt. Being otherwise dealt with in accordance with law would appear to refer to use of powers relevant to criminal offences, including arrest pursuant to powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the “Law Enforcement Act”). (There is also a common law power of arrest in order to take a person before a magistrate, and to issue an arrest warrant, discussed briefly in McArthur v Williams [1936] HCA 10; 55 CLR 324 at 365 (Dixon, Evatt and McTiernan JJ); see generally, P Gillies, The Law of Criminal Investigation (1982, Law Book Co) Ch 5.) It would include coercive powers with respect to children. However, if that were correct, it might be necessary to read paragraph (b) as operating only where there is otherwise a power of arrest. (By analogy, a child charged with a serious children’s indictable offence is not to be dealt with by a Children’s Court but is to be “dealt with according to law”: Children (Criminal Proceedings) Act 1987 (NSW), s 17 and, in relation to other indictable offences, s 18.) As will appear, not all the circumstances covered by paragraph (a) will satisfy this element.

16. Turning to paragraph (a), there are three temporal categories within the provision. The first possibility is that the person “is committing … an offence”. Belief on reasonable grounds that the person is committing an offence is a stronger test than suspecting on reasonable grounds, as required for an arrest without warrant pursuant to s 99 of the Law Enforcement Act. Being in the process of committing an offence is a basis for arrest without warrant, so long as the officer is also satisfied that the arrest is reasonably necessary to stop the person committing the offence, repeating the offence or committing another offence, or for certain other reasons: s 99(1)(a) and (b).

17. Secondly, so far as past events are concerned, s 22(1)(a) requires that the person “has recently committed an offence” or “has recently attempted to kill himself or herself”. The requirement that the offence must have been “recently” committed is an additional constraint on the power to arrest under s 99 of the Law Enforcement Act. However, an attempt to kill oneself is not an offence: Crimes Act 1900 (NSW), s 31A.

18. Thirdly, s 22(1)(a) covers future conduct which is “probable”. The scope of this aspect of the provision is of critical importance in the present case as there was no suggestion that Mr Talovic was committing any offence, nor that he had recently committed any offence or attempted to kill himself. The conduct must be that of attempting to kill or to cause serious physical harm. If the attempted attack is upon another person, it will almost certainly involve a criminal offence. However, as noted above, to commit or attempt to commit suicide is not a crime. On the other hand, no additional authority is required to use such force as may reasonably be necessary to prevent a suicide or any act which a person believes on reasonable grounds would result in suicide: Crimes Act, s 574B. While there is power to arrest a person to stop the person committing an offence, or to protect the safety and welfare of any person (including the person arrested) those powers are not engaged unless the person is suspected of committing or having committed an offence: s 99(1)(a), (b)(i) and (viii). These limbs do not engage powers under the criminal law and thus do not allow the comparative exercise envisaged by paragraph (b).

19. These difficulties did not arise in relation to s 24 of the 1990 Act, as enacted. That provision dealt in paragraph (a) with the commission of offences and with the comparative evaluation; attempts at suicide or self-harm were addressed in paragraph (b), without the comparative exercise which is inappropriate in those situations. Thus s 24 as enacted in 1990 read as follows:

24   Detention after apprehension by police

(1)   If a member of the Police Force finds a person in a public place who appears to be mentally disturbed and the member of the Police Force has reasonable grounds for believing:

(a)   that the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or

(b)   that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or attempt to cause serious bodily harm to himself or herself,

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

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

20. The first strike against the coherence of this provision came in 2003 with the addition of the words “or any other person” in paragraph (b). That brought in the concept of a criminal offence committed against a third party, quite unnecessarily as it was contained already within paragraph (a). The amendment, which commenced on 8 July 2003, inserted the words “or any other person” after “himself or herself” wherever occurring in s 24(1). That phrase occurred three times, the first referring to a recent attempt to kill, that is a completed offence (unless excused or justified), being a completed offence.

21. It may be that, when the drafter came to prepare s 22 of the current Act, it was thought to be illogical not to apply the comparative exercise to the expanded version of paragraph (b) in the old s 24. However, the result was not to cure the confusion, but to add another layer.

(c)   construing the section as a whole

22. In the present case, the limb of s 22(1)(a) upon which the officer relied was the probability that Mr Talovic would attempt to kill himself. Because it is not clear how Mr Talovic could otherwise have been dealt with in accordance with law, paragraph (b) became a meaningless qualification. The question is whether it should be ignored or whether its effect is to prevent reliance on the powers in s 22(1) in such circumstances.

23. A similar problem arises under s 22(2), which appears to assume that the power conferred by s 22(1) could be permitted under an arrest warrant. However, no explanation is provided as to how such a warrant could be issued in relation to a feared attempted suicide.

24. Section 24, as originally enacted, was considered by this Court in State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496. That case held that a person subject to apprehension under s 24 of the 1990 Act was entitled to be told the basis on which he or she was being detained. So far as liability is concerned, it has no further relevance.

25. In considering which of the alternative approaches noted at [22] above should be adopted, a choice between operative principles must be made. To adopt a restrictive approach, protective of the liberty of the individual, would be to limit the powers of police to deal with potentially life threatening circumstances due to apparent mental disturbance. The alternative course would allow police to intervene to apprehend persons exhibiting mental disturbance in two circumstances, namely:

(a)   where there are grounds to believe that an offence is being or has been committed, only if there were grounds to think it would be beneficial to the person’s welfare to be dealt with in accordance with the Mental Health Act, rather than in accordance with the criminal law, and

(b)   where the conduct of the person involves the probability of an attempt at suicide or the infliction of serious harm, or the killing or infliction of serious bodily harm on another person, where there is no scope for the person to be dealt with under the criminal law.

26. The second set of circumstances, which may occur in cases of severe depression or paranoid schizophrenia, might be thought to fall outside the area in which the police should be engaged, and within the area where the professional opinion of a medical practitioner or a psychiatrist is required. On the other hand, the police have experience and training, and the equipment, to deal with disturbed and possibly violent people, whereas medical practitioners do not.

27. Although it is to adopt the option less protective of liberty of the individual, in my view the Court should prefer the approach set out at [25] above. First, if it proves not to be the approach preferred by the legislature, it can readily and quickly be overruled by legislation. Since July 2012, the continuing challenges presented by mental illness are being monitored by a standing Mental Health Commission: see Mental Health Commission Act 2012 (NSW).

28. Secondly, the historical outline of the amendments to s 22 and its predecessor, s 24 of the 1990 Act, suggests that this approach is consistent with the original legislative purpose. That purpose appears to have become confused as a result of amendments which were inadvertent as to the consequences.

(d)   the meaning of ‘probable’

29. Paragraph (a) requires that a police officer form a view on reasonable grounds as to what it is “probable” that a person who appears to be at least mentally disturbed, and possible mentally ill, “will” do. The language of chance, possibility or probability is used almost interchangeably, in common speech and in legal parlance. Thus the High Court has said that the courts assess future or hypothetical events “in terms of the degree of probability of those events occurring”: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ). The joint reasons continued:

“The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. … Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.”

30. On one approach, arguably protective of the liberty of the individual, a police officer should not intervene unless there are reasonable grounds to believe it is more probable than not that the person will attempt to kill himself or cause himself serious harm. That approach would also, presumably, require that prevention informs the purpose of the power and hence requires that the attempt be foreseen within a reasonably short period.

31. The alternative approach is to impose a lower requirement, namely some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not. There are two reasons to adopt the latter approach. First, the assessment is to be made by a police officer: even a psychiatrist might be hard pressed to say whether a stranger, encountered in a non-professional setting for the first time, was more likely than not to attempt suicide in the near future. To expect a police officer to form such a view would be tantamount to conferring an unusable power. Secondly, the purpose of the apprehension is to transport the person to a health facility where the person will be promptly assessed by professionals in a professional environment.

Application of principles

32. The result of that analysis is that s 22 was available to the police officers who took Mr Talovic to the mental health facility.

33. The trial judge misconstrued the chapeau to s 22(1), requiring an objective test that Mr Talovic appeared to be mentally disturbed, if not mentally ill. He should have applied a subjective test. Further, the judge equated mental disturbance with mental disorder, as defined by reference to a “mentally disordered person”. A mentally disordered person is one whose behaviour “for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary … for the person’s own protection from serious physical harm”: s 15(a).

34. There are three reasons not to apply that test. The first, and probably the weakest, is that s 22 does not refer to the defined term, namely “mentally disordered person” but rather to “a person who appears to be … mentally disturbed”. Even if one reads “disturbed” as “disordered”, the defined term is not used. Secondly, the use of the phrase “appears to be” is inconsistent with the adoption of the objective test contained within s 15. Thirdly, s 15 would require that at least temporary care, treatment or control of the person is “necessary” whereas a lower standard is applied by paragraph (b), namely that it would be “beneficial to the person’s welfare” to be dealt with under the Act.

35. Once these errors are avoided, it would become necessary to determine whether the police officer held a bona fide belief that Mr Talovic was mentally disturbed. His evidence was that he did: nothing in the cross-examination challenged that bona fide belief. Even in awarding exemplary damages, the trial judge did not suggest he lacked a genuine belief in his power to act as he did.

36. The next question is whether the officer had reasonable grounds for believing that Mr Talovic would probably attempt to kill himself or cause himself serious physical harm. The trial judge accepted that Constable Manoukian “was worried that the plaintiff might do something and thought that the best thing to happen was for the plaintiff to be taken to [a] mental health facility”: at [186]. That might well not satisfy the statutory test. However, Constable Manoukian did say that it was “probable that [Mr Talovic] may seriously hurt himself or kill himself”.

37. Because the trial judge applied a ‘more probable than not’ test, and not the lesser test preferred above, and committed other errors in approach noted above, the finding on liability must be set aside. It is less clear what consequential steps should be taken. Either this Court must determine the facts for itself according to the preferred reading of s 22, or it should remit the matter for a retrial. The answer to this question should await determination of the challenge to the award of exemplary damages.

Award of exemplary damages

38. The trial judge awarded an amount of $35,000 for false imprisonment and for trespass, including both “general” and “aggravated” damages. On the basis that liability is established, these amounts are not challenged. The only element in dispute was an award of $50,000 for exemplary damages. (This was not in terms identified by reference to a specific cause of action.)

39. In deciding to award exemplary damages, the trial judge correctly noted that the purpose of such an award was “to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter it from engaging in similar conduct in the future”, referring to XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd [1985] HCA 12; 155 CLR 448 at 471: trial judgment at [228]. The judge also bore in mind that “conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing”: at [228]. As authority for that proposition the judge referred, appropriately, to State of New South Wales v Riley. The relevant reference was in the judgment of Hodgson JA at [138]. However, the trial judge did not stop to note the conclusion reached by Hodgson JA at [142] in rejecting a claim for exemplary damages in that case. Further, although the trial judge referred to State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125, he did not refer to the remarks of Ipp JA at [25] approving the further reasons given at [115]-[117].

40. The factors which the judge took into account – at [229] – were all factors concerned with the plaintiff, namely that he was “asleep in his own bed, was causing no harm to anyone and was at no risk of harming himself and was woken by two police officers who searched his unit …”. There was no express finding (nor could there have been) that the police acted with malice. Nor was there any express finding of contumelious disregard of the plaintiff’s rights. A fair reading of the evidence of both constables provides no sufficient basis for any relevant finding in order to justify exemplary damages. That part of the award should be set aside.

Trespass to land

41. The respondent gave evidence before the trial judge that, upon entering his premises (with his consent) one officer “went straight towards the bedrooms”, entered each of them, came out and went into the bathroom as well: Tcpt, pp 24-25. The trial judge found that Constable Manoukian “searched the bedrooms” and that his companion, Constable Sturevski “looked in the other rooms”: at [148].

42. No statutory power was relied upon to justify this conduct: accordingly, it was either carried out with the consent of the occupier or it was unlawful. The trial judge held that the licence by which the police entered did not extend to “a search of the premises” and that “[t]he search of the rooms constituted a trespass”: at [150]. Subject to the meaning of the term “search” (which apparently at this stage included looking into a room) this conclusion should be accepted. The extent to which there was a “search” may have had consequences for the assessment of damages, but the award of $5,000 for trespass to land was not in issue.

43. Ground 8 of the draft notice of appeal was not made out.

Orders

44. If the matter is to go back for a retrial on the question of whether the intrusion by the police on the liberty of the respondent constituted an unlawful imprisonment, the amount in issue is the unchallenged award of $30,000. Given the unsatisfactory nature of the statutory test to be applied by police officers, and the likely cost to both parties of a retrial, there would be much to be said for a resolution of the matter by this Court. However, for the reasons more fully explained by Emmett JA, the relevant findings of fact are absent and cannot be made by this Court on the basis of the transcript.

45. In those circumstances, the outstanding issues must be remitted to the District Court. (Hopefully, some consensual resolution will be possible.)

46. I would make the following orders:

1. Grant the State leave to appeal from the judgment and orders of the District Court made on 10 December 2013.

2. Direct that, within 7 days of the date of this judgment, the State file the draft notice of appeal in the form contained in the white folder.

3. Otherwise dispense with the rules with respect to service of the notice of appeal.

4. Set aside order (1) made by the District Court, giving judgment for Mr Talovic in an amount of $85,000.

5. Remit the matter to the District Court on the basis that:

1. Mr Talovic is entitled to an award of compensatory damages for trespass to land in the amount of $5,000;

2. Mr Talovic is not entitled to an award on account of exemplary damages;

3. there be a retrial of his claim for compensatory damages for false imprisonment.

6. Set aside order (2) with respect to the costs of the trial and direct that the question of costs, if not otherwise resolved, be in the discretion of the judge determining the retrial.

7. Otherwise dismiss the appeal to this Court.

8. Order that Mr Talovic pay 75% of the State’s costs of the appeal.

9. Grant Mr Talovic a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs in this Court.

47. EMMETT JA: On 10 December 2013, a judge of the District Court (the primary judge) directed a verdict and judgment in favour of the respondent, Mr Josip Talovic, against the appellant, the State of New South Wales (the State), in the sum of $85,000, for false imprisonment and trespass. The State seeks leave to appeal from that judgment. The circumstances that gave rise to Mr Talovic’s claim arose out of the purported exercise by police officers of the power to apprehend persons conferred by s 22 of the Mental Health Act 2007 (NSW) (the Mental Health Act). Mr Talovic sued the State as being vicariously liable for the conduct of the police officers concerned, Constable Matthew Manoukian and Probationary Constable Rebecca Sturevski (the Police Officers).

48. Section 22 of the Mental Health Act relevantly provides that, in certain circumstances, a police officer may apprehend a person and take the person to a declared mental health facility. There are two prerequisites for the exercise of the power conferred by s 22. First, the person must appear to be mentally ill or mentally disturbed at the time when the police officer finds the person in any place. The second prerequisite is, relevantly, that the police officer must believe, on reasonable grounds, that it is probable that the person will attempt to kill himself or attempt to cause serious physical harm to himself and that it would be beneficial to the person’s welfare to be dealt with in accordance with the Mental Health Act, rather than otherwise in accordance with law.

49. A police officer may apprehend a person under s 22 without warrant and may exercise any powers conferred by s 81 on a person who is authorised under s 81 to take a person to a mental health facility. Section 81 relevantly provides that a police officer may take to a mental health facility any person who is authorised by the Mental Health Act to be taken to such a facility. Such a police officer may use reasonable force in exercising the functions under s 81 or under any other provision of the Mental Health Act that applies s 81. Such a police officer may also restrain the person in any way that is reasonably necessary in the circumstances.

50. Section 22 appears in Div 2 of Pt 2 of Ch 3 of the Mental Health Act. Division 2, which consists of ss 18-33, deals with admission to, and initial detention in, mental health facilities. The scheme of Div 2 has some bearing on the proper construction of s 22. I shall return to the provisions below.

51. In the afternoon of 17 November 2011, Mr Talovic was in his bed at his apartment in Concord. The Police Officers, who were in uniform at the time, knocked on Mr Talovic’s front door. When Mr Talovic answered the door, they informed him that they were there to check on his welfare. They entered his apartment, where they remained for about half an hour. During that time, they conducted a search of the apartment, spoke to Mr Talovic and observed his behaviour. They then took him into their custody and arranged for an ambulance to take him to the Concord Centre for Mental Health (the Concord Centre), a mental health facility. After being examined at the Concord Centre by a psychiatric registrar, Mr Talovic was allowed to return home.

52. Mr Talovic subsequently commenced proceedings in the District Court against the State, alleging that taking him into custody and transporting him by ambulance to the Concord Centre constituted unlawful imprisonment and that the conduct of the Police Officers in searching his apartment constituted trespass to land. Mr Talovic sued the State under s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act). Section 9B relevantly provides that a person may not, in any legal proceedings, make a police tort claim against a police officer, but may instead make such a claim against the Crown. A police tort claim is a claim for damages for a tort allegedly committed by a police officer in the performance or purported performance of the officer’s functions as a police officer. Under s 5 of the Crown Proceedings Act 1988 (NSW), the Crown may be sued in any court under the title “State of New South Wales”.

53. The primary judge concluded that, while Mr Talovic consented to the Police Officers’ entering his apartment, he did not consent to their searching the rooms of the apartment and that their conduct in doing so constituted trespass to land. His Honour also concluded that the apprehension of Mr Talovic and the conveying of him to the Concord Centre constituted false imprisonment. His Honour awarded Mr Talovic general and aggravated damages of $5,000 for trespass and general and aggravated damages of $30,000 for false imprisonment. His Honour also awarded Mr Talovic exemplary damages of $50,000. Orders were entered accordingly. The State now appeals from those orders of the District Court.

Evidence, Findings and Reasons of the District Court

54. The visit by the Police Officers to Mr Talovic’s apartment in November 2011 was the consequence of a telephone altercation that Mr Talovic had with Ms Margaret Alridge, a case manager at Allianz Australia Insurance Ltd (Allianz), the workers compensation insurer of Mr Talovic’s former employer. In 2004, while working as a security officer, Mr Talovic fell down some steps and injured his knee. Thereafter, he had a number of operations on his knee and suffered from serious and debilitating pain. In April 2005, his employment was terminated. However, he continued doing a variety of jobs until 2008.

55. From 2008, Mr Talovic has received workers compensation from Allianz. However, prior to November 2011, Mr Talovic had experienced problems with the receipt of his workers compensation payments, which on 41 previous occasions had not been paid on time.

56. On the morning of Thursday, 17 November 2011, Mr Talovic found that a workers compensation payment that was then due had not been paid into his account. He said that, at about 8.30 am, he rang Ms Alridge, who was his case manager at Allianz. As at that time, Ms Alridge had been Mr Talovic’s case manager for about four months and had spoken to him on many occasions. He asked her where his payment was. After checking, Ms Alridge said that she had made a mistake and had not authorised the payment on her computer. She said she would process the payment in due time.

57. Mr Talovic became angry and asserted to Ms Alridge that, even if the payment were processed that morning, he would not receive it until the following Monday. The conversation became heated and Ms Alridge replied, “Deal with it”. Mr Talovic described Ms Alridge as rude and arrogant. He said that he told her that he would call WorkCover and his solicitor and then hung up.

58. Mr Talovic said that, after trying unsuccessfully to speak to WorkCover and to his solicitor, he made a second call to Ms Alridge at 9 am. By that time, he was very angry. He said that he started to plead with Ms Alridge at first and asked whether she could send a cheque by courier. He said that she responded by saying that they could not and that they were going to pay him in due course. Mr Talovic said that he got angrier and angrier and told Ms Alridge that the previous year, Allianz had made him homeless by not paying money that was due.

59. Mr Talovic said that the following exchange then took place:

Mr Talovic: Look, you guys are sending people on the streets and you’re letting them just die.

Ms Alridge: What are you trying to say? Are you going to kill yourself?

Mr Talovic: That’s not what I’m saying, Marge. I am saying that you’re letting people die and if I wanted to do something myself, I wouldn’t fricking tell you!

Ms Alridge: If you keep saying that you’re going to kill yourself ...

Mr Talovic: No, that’s not what I am saying, Marge. You’re baiting me.

Ms Alridge: I’m going to call the police.

Mr Talovic: Call the police. I didn’t say nothing and I’m not going to do nothing, but you [sic] saying that somebody is going to kill themselves. You are making people to die, not me.

60. Mr Talovic said that, at about 1 pm, he received a telephone call from the practice manager at his local general medical practitioner’s surgery. The practice manager told him that she had received a telephone call from Allianz saying that he was going to kill himself. She told Mr Talovic that, if he was having problems, he should come and visit Dr Barlow, his general practitioner, and he would help him. She told Mr Talovic that she had told Ms Alridge to send him a cheque by courier.

61. In oral evidence-in-chief, Mr Talovic said that, at about 3.30 pm, there was a loud banging on his front door. He was sleeping in a back room at the time. He got up and put on a dressing gown and went to the door. He said that before he opened the door, he heard someone yelling, “Open up, police!”. When he opened the door, he saw a male police officer standing close to the door and a female police officer standing with one foot down on the stairs. He asked how he could help them.

62. Mr Talovic said that the male police officer asked him whether he was “Joseph” and he replied, “No, I’m Josip”. (Mr Talovic has a son named Joseph.) The male police officer asked if they could come in and Mr Talovic replied, “Yes, of course”. Mr Talovic said that when the male police officer then pushed past him “really heavily”, he said to the police officer, “Hey, where are you going?”. Mr Talovic said that the male police officer replied, “I’m checking for dead bodies”.

63. Mr Talovic said that he saw the male police officer walk into one of his bedrooms and out again and then into the other bedroom and out again. He said he also saw the male police officer go into the bathroom between the two bedrooms. He said that during that time, the female police officer stood “very close to me in a very aggressive manner”.

64. Mr Talovic said that he asked for identification and was given a card by the Police Officers with two surnames on it. He said that the male police officer said, “You know what this is about. You told Allianz this morning that you were going to kill yourself”. Mr Talovic said that he responded as follows:

That’s not exactly what happened. I didn’t use those words. There was more to that conversation [than] that and she made up the words or she took the words out of the context. She said “kill”, not me. I said that they are sending people to die.

65. Case management records produced by Allianz have several entries relating to Mr Talovic on 17 November 2011. The first entry records a telephone call from Mr Talovic to Ms Alridge at about 10.09 am. Ms Alridge only recalled one telephone call from Mr Talovic on the day in question. In cross-examination, she agreed that the phone call could have taken place earlier than 10.09 am, but had no recollection of receiving two telephone calls from Mr Talovic on that day.

66. The entry of the telephone call at 10.09 am records that Mr Talovic said that his payment had not gone into his account and that Ms Alridge apologised and advised that it had not been authorised. Mr Talovic said that his rent had to be paid that day and Ms Alridge asked if she could speak to the real estate agent to explain what had happened. Mr Talovic advised that this had happened before and that he had lost his unit for five months the previous year. The entry recorded that Mr Talovic “began to cry and stated he felt like killing himself and this injury has destroyed his life”. The entry said that Ms Alridge apologised again and advised that, if she could take the cheque to the bank, she would. Mr Talovic hung up.

67. The next entry was at 1:51 pm, recording a telephone call made by Ms Alridge to Dr Barlow’s surgery, where she spoke with the practice manager, as Dr Barlow was not in. Ms Alridge advised the practice manager that, due to Mr Talovic’s not having received his payment, he was threatening suicide. The practice manager asked if the payment was going to be made and whether Allianz could send a cheque by express post. Ms Alridge advised that that was not up to her and that the payment would “release” that night. Ms Alridge asked the practice manager, “as duty of care”, to contact Mr Talovic.

68. The next entry in the case management records lists a telephone call made by Ms Alridge at 2:59 pm to the Concord Centre, when she left a message for the intake worker to return her phone call. The next entry is of a telephone call at 3:28 pm that Ms Alridge received from the Concord Centre. Ms Alridge advised that Mr Talovic had threatened suicide that morning and that she was not aware of any previous mental health issues. The caller from the Concord Centre advised Ms Alridge to contact the police for a “welfare check” and advised Ms Alridge that the caller’s department would follow up. Ms Alridge then telephoned “000” and was put through to Burwood Police Station. She advised Mr Talovic’s address and advised that Mr Talovic was at home at the time and had threatened suicide. Ms Alridge advised that Mr Talovic had not given any indication how he was going to do that. The operator said that the police would call around to Mr Talovic’s house. Ms Alridge advised that she was available to speak with the police if required.

69. The final relevant entry in the case management records is a telephone call at 3:53 pm that Ms Alridge received from an officer at the Burwood Police Station. The officer advised that the police were proceeding to Mr Talovic’s address. The officer asked the circumstances and Ms Alridge said that the circumstances were due to a payment not going out and that Mr Talovic had said that he wanted to kill himself. Ms Alridge advised that, to her knowledge, Mr Talovic was at home. The officer said he would contact her. That call was in fact from Constable Manoukian.

70. A Police Incident Log (the Police Log) records that Ms Alridge was put through to Burwood Police Station at 3:18 pm. The discrepancy between the Police Log and the Allianz case management records probably resulted from the fact that the times noted are the times of entry and not necessarily the times of the relevant occurrences. The Police Log is probably more accurate than the Allianz records.

71. The Police Log records that Ms Alridge said that she had received a telephone call that morning from Mr Talovic “advising that he is going to commit suicide”. The log records that at 3:27 pm, an “Incident Broadcast” was despatched and that at 3:28 pm, the broadcast was acknowledged by police vehicle BU15. The next relevant entry is at 3:46 pm, recording that vehicle BU15 was engaged in a “welfare check”. An entry at 4:30 pm records “welfare check - completed”. Next, an entry at 4:48 pm records a police radio message that an ambulance with one person on board was going to the Concord Centre.

72. Ambulance records contain the following entry:

Pt spoke with insurance company today stating he wanted to end his life. He rang back soon after & made the same statement again. Police then attended and scheduled the pt.

Pt refused to communicate with paramedics when we tried to explain the seriousness of making such statements. Pt neither confirmed [n]or denied stating that he wanted to end his life saying he does not remember.

Pt appeared paranoid that the insurance company “had the power to organise police & ambulance”. Pt manor [sic] indicated minimal contact hence no obs.

Police followed up to mental health.

73. Notes produced by the Concord Centre contain the following entry:

Brought in by CDA with police escort. Had reportedly threatened self-harm during conversation with Allianz Insurance company who are responsible for his WorkCover payments. In Admission Office, expressing indignation about events leading to his admission. Demanding to leave. Insisting that “all this is a complete waste of taxpayers’ money.” Settled following reassurance. Seen by Dr Fariel. Able to guarantee safety. No previous psychiatric history. Returned home in company of friend.

74. The primary judge referred to a number of medical records relating to Mr Talovic that contained references to both depression and suicidal ideations. His Honour considered that Mr Talovic’s denial of what emerged reasonably clearly from contemporaneous medical records required him to approach Mr Talovic’s evidence with a degree of caution and a need to assess his evidence in the light of all the other evidence.

75. The primary judge did not accept evidence given by Ms Alridge that, in the telephone conversation on the morning of 17 November 2011, Mr Talovic had threatened to kill himself. However, his Honour considered that it was clear that something about suicide had been said in the conversation. His Honour considered that the best evidence of what was said was contained in Ms Alridge’s contemporaneous note in the case management records. His Honour did not consider that Ms Alridge had given a satisfactory explanation as to why she did not contact police or Mr Talovic’s medical practitioner immediately following the telephone call if she was concerned, as she said, that Mr Talovic was in imminent danger of killing himself.

76. The precise terms of the communication between Mr Talovic and Ms Alridge are not relevant to the question of liability of the State for apprehending Mr Talovic and having him transported to the Concord Centre. The precise terms of the communications between Ms Alridge and Mr Talovic’s general medical practitioner are equally irrelevant. The only relevant communications are those to which the Police Officers were party.

77. The primary judge considered that Constable Sturevski was not an impressive witness and that her evidence was inconsistent with that of Mr Talovic and Constable Manoukian on several significant matters. In his reasons, his Honour said that Constable Sturevski’s evidence had “an air of artificiality bordering on contrivance”. His Honour also said that, in cross-examination, it was clear that Constable Sturevski did not understand the difference between “mentally ill” and “mentally disturbed” (being two of the operative terms of s 22 of the Mental Health Act) and that his impression of that aspect of her evidence was that she was simply “repeating the relevant formula required”. Neither of those propositions had been put to Constable Sturevski in cross-examination or by his Honour.

78. The primary judge also referred to evidence given by Constable Sturevski that, on the footpath outside Mr Talovic’s apartment, while awaiting the arrival of the ambulance, Constable Manoukian told Mr Talovic that he was under arrest. Constable Sturevski said that she then stepped in and gave Mr Talovic an appropriate explanation as to what was occurring under the Mental Health Act. His Honour considered that it was “highly unlikely” that Constable Sturevski would have corrected Constable Manoukian in the manner she suggested. He said that her evidence as to the explanation was artificial and that his impression was that she was “simply repeating the relevant formula [that] she thought was required”.

79. That incident on the footpath was canvassed in cross-examination, but not in the terms of the subsequent criticism by the primary judge. The following exchange occurred during cross-examination:

Q. It's an unusual exchange, isn’t it, when the senior officer tells a person that he’s standing on the street with that he’s under arrest and his junior probationary constable partner corrects him in front of the person and says, “No, you’re not under arrest.”

A. I wanted to make it clear that he wasn’t in trouble with police; however, he wasn’t free to leave because he was being detained under the Mental Health Act, so I just – I wanted to make it clear.

Q. Well, just to make myself clear, I’m putting it to you that you never mentioned the Mental Health Act once on that occasion or any other occasion.A. That’s incorrect.

Q. Indeed, you never mentioned mental health at all and nor did your colleague.A. Incorrect.

By contrast, the primary judge’s finding was that Constable Sturevski was simply giving the evidence that she thought would be required to satisfy the obligations imposed on her by the Mental Health Act.

80. Constable Manoukian confirmed that he and Constable Sturevski responded to a radio call at 3.40 pm. He said that, prior to arriving at Mr Talovic’s apartment, he telephoned Ms Alridge and asked her what the situation was. He said that she advised him that she had spoken to Mr Talovic, that he was upset and that he had said on the first occasion that he would kill himself. She said that he hung up on the phone at the end of the conversation. She said that during a second conversation with Mr Talovic, he was once again upset and stated that he would “finish himself off” and then hung up the phone a second time. She said he was quite upset. Thus, for what relevance it has, Constable Manoukian’s evidence corroborated Mr Talovic’s evidence that he spoke to Ms Alridge twice on the day in question.

81. Constable Manoukian said that, after he spoke to Ms Alridge, he and Constable Sturevski drove to Mr Talovic’s apartment and knocked on the door. When Mr Talovic opened the door, they advised him that they were from Burwood Police and that they were there to check on his welfare. They asked if they could come in and have a chat with him. Constable Manoukian said that Mr Talovic seemed a bit nervous regarding his neighbours and said, “the neighbours won’t be looking, come in”, so they entered the apartment.

82. Constable Manoukian said that Mr Talovic was not in an agitated or confused state when he answered the door. He asked Mr Talovic if he had had a conversation with Ms Alridge, which he confirmed. He then asked Mr Talovic whether he said he would kill himself. Mr Talovic replied, “No”. Mr Talovic also denied that he said that he would “finish himself off”. Mr Talovic then said something regarding compensation that he was to receive. Constable Manoukian said that, when asked multiple times whether he had said he would kill himself, Mr Talovic denied each time that he had said that he had.

83. Constable Manoukian said that, while he was talking to Mr Talovic, he was trying to observe his behaviour. He said that Mr Talovic’s speech was erratic in that he was speaking fast at some points and then slowed down. He said that Mr Talovic appeared to be nervous and began to question the Police Officers as to why they were there and what they were going to do. Constable Manoukian said that Mr Talovic’s eyes began to appear a bit glazed at some points, possibly because he was becoming emotional. He began to explain his financial situation, which was quite difficult for him at the time. Constable Manoukian said that he could see that Mr Talovic’s emotions were heightened. He was sitting down at one point and then he stood up and began pacing back and forth. Constable Manoukian said that Mr Talovic swore a few times. At one point, Mr Talovic wanted to get a glass of water. Constable Sturevski stood up to follow to see where he was going, at which point Mr Talovic got upset and then returned to the couch and said, “Oh well, f*** the water then”.

84. Constable Manoukian said that he could sense a bit of a quiver in Mr Talovic’s voice and that he was obviously emotional about some things and upset. He said that Mr Talovic’s emotional state did not seem to be stable at the time. Constable Manoukian said that he considered all the factors that Mr Talovic was talking about, to do with finances and his work situation not being good and about his compensation and issues about receiving money.

85. Constable Manoukian said that he told Mr Talovic that they intended to take him to the Concord Centre to have him assessed by a professional as to whether he was mentally ill or disturbed. Constable Manoukian told him that they were not professionals and that that assessment should be left to the psychiatrists. Constable Manoukian told Mr Talovic that he was not in trouble or being charged, but merely being conveyed, based on their observations and the allegations about what he had said to Ms Alridge.

86. Mr Talovic then made a telephone call to his solicitor and Constable Manoukian spoke to the solicitor. Constable Manoukian advised the solicitor that Mr Talovic had had a conversation with Ms Alridge and, as he had stated that he would “kill himself” and “finish himself off”, they had concerns for him that he could be at risk and could cause serious harm to himself or kill himself. He told the solicitor that, as a result, they were conveying Mr Talovic by ambulance to the Concord Centre. Constable Manoukian then handed the telephone back to Mr Talovic, who continued to have a conversation with his solicitor.

87. Constable Manoukian also had a radio conversation with his supervisor to report what was happening. The supervisor confirmed that what Constable Manoukian was doing was the right choice, and told him to go ahead.

88. Constable Manoukian said that Mr Talovic asked him numerous times, quite angrily, whether he was under arrest and, if he was not under arrest, why the Police Officers should not leave. Constable Manoukian said that he did not respond, as Mr Talovic’s comments “seemed to be aggression”. Eventually he responded to the effect, “Yeah, you are, because we are not going to leave and you’re not free to leave”.

89. Soon after speaking to Mr Talovic’s solicitor and his supervisor, Constable Manoukian contacted the ambulance service by radio to ask them to attend at Mr Talovic’s apartment. The Police Officers then walked out to the front of Mr Talovic’s apartment and waited with him until the ambulance arrived. After the ambulance arrived, they had a conversation with the ambulance officers and then followed the ambulance to the Concord Centre.

90. Constable Manoukian said that, based on his observation and what he understood him to have said to Ms Alridge, his concern was that if they left the location without having Mr Talovic assessed by a professional, it was “probable that he may seriously hurt himself or kill himself”. Constable Manoukian said that he had concerns that, if he left, “anything was possible” and, “as a duty of care for him”, he would much prefer to do what he believed was correct, by taking him to the Concord Centre to have him assessed. He said that that is “really essentially what happened” and he “would do the same thing if it came up again”.

91. Constable Sturevski subsequently completed a form of request for assessment of Mr Talovic at the Concord Centre. In the form, Constable Sturevski wrote the following:

Josip had two conversations with Allianz Insurance on both occasions saying he would kill himself, he will finish himself off. Josip [was] also heard crying on the phone and hung up both times on Allianz.

Constable Manoukian also wrote the following in the form:

Police attended Josip’s home and observed him to be emotional and paranoid. Police believed Josip may go through with his threats and kill himself due to his poor financial state and threats.

92. When asked in examination-in-chief what he meant by his use of the word “paranoid”, Constable Manoukian said that Mr Talovic “seemed [to be] paranoid … [and] that maybe something further was going to happen to him”. Constable Manoukian said that, on that basis, he believed Mr Talovic was paranoid because he was very resistant about coming with the police. He thought that maybe Mr Talovic was thinking that there was more to the attendance of the Police Officers than had been conveyed to him. Constable Manoukian said that, at the front door, Mr Talovic had been “paranoid about the neighbours” and quickly ushered them inside. Constable Manoukian said that Mr Talovic gave him the perception that he was “paranoid about the neighbours”.

93. When asked in cross-examination about his use of the word “paranoid”, Constable Manoukian agreed that it was possible that Mr Talovic was simply “a little bit embarrassed to have two uniformed policemen standing at the door” of his apartment. He agreed that, when Mr Talovic ushered them in, it was a polite and pleasant greeting that one would expect from anyone who was not a criminal. Constable Manoukian denied that he used the phrase “I’m looking for dead bodies” when asked by Mr Talovic what he was doing. He agreed that it was possible that he asked Mr Talovic why he told Allianz that he was going to kill himself. He agreed that Mr Talovic explained that he had had a dispute with Ms Alridge about his payment and that he was upset and angry because the payment had not gone through.

94. Constable Manoukian also agreed in cross-examination that Ms Alridge did not tell him that she had tried to contact Mr Talovic’s doctor and that he did not recall discussing with Ms Alridge whether any health professional had assessed Mr Talovic. Constable Manoukian accepted that neither he nor Constable Sturevski made an enquiry as to who Mr Talovic’s doctor was or whether there was a relevant medical practitioner who could assist him. However, he said that he conducted a check on the police system for any prior “schedules” under the Mental Health Act and that there was nothing listed in the system for Mr Talovic. Constable Manoukian agreed that the Police Officers were with Mr Talovic for well over half an hour before he was put in the back of the ambulance. He agreed that Mr Talovic was initially calm, but became upset when it became apparent that he was going to be taken against his wishes in an ambulance.

95. Constable Manoukian also agreed that Mr Talovic became teary after the Police Officers had explained why they were there and what they were doing. He said that, during the conversation with Mr Talovic, Mr Talovic divulged information about his life and his circumstances and that, at those times, he observed him to become emotional. Constable Manoukian said that it was obvious that it was a stressful time for Mr Talovic. That was before he explained to him that he would be conveyed to the Concord Centre. He said that Mr Talovic’s mood changed and he became angry after they began to explain to him that he would be conveyed to the Concord Centre.

96. Constable Manoukian agreed that, when he attended Mr Talovic’s apartment, it was his understanding that, if after speaking to him he was concerned for his wellbeing, he was entitled to call an ambulance and have him conveyed to the Concord Centre. When it was put to him that he never formed the view that, if he did not convey Mr Talovic to hospital, he was likely to cause himself harm or kill himself, Constable Manoukian responded that he formed the view that, if he did not take Mr Talovic to the Concord Centre, it was “probable that he may do serious physical harm to himself or kill himself”. When asked whether he understood that there was a difference between something being probable and something being possible, he said, “Yeah, it’s a grey line - yeah, sort of”. He then said that he understood that there was a difference.

97. It was then put to Constable Manoukian that, at most, based on what Ms Alridge had said and what he had seen, he may have thought that there was “some possibility” that, if he did not act, Mr Talovic might hurt himself or worse, but that, in no way did he think that it was likely that, if he walked away and did not send him away in an ambulance, he was going to hurt himself. Constable Manoukian said that he “was not leaving that place” unless Mr Talovic was being conveyed “to be scheduled”, due to his concerns for Mr Talovic’s mental state. He said he had formed the opinion, based on Mr Talovic’s “admissions” to Allianz, in addition to his own observations, that Mr Talovic was a risk to himself and that it was “probable that he could do physical harm to himself”. He said that taking all of that into account led him to make his decision to have Mr Talovic conveyed to the Concord Centre.

98. Constable Manoukian was then asked whether he thought that it was probable that Mr Talovic was going to commit suicide if he walked out the door of the apartment. His response was “It was probable, yeah. Or that he could seriously hurt himself.” When asked what the basis for that was, he responded:

Well, like I was saying, his emotional state when I was talking to him, if his speech is being erratic at some points, if he appeared to have been crying, and if he has made those allegations that he would finish himself off and kill himself, and if he’s hung up the phone on her and she has said that he was upset on the phone, based on my experience, these people – if the person is in an emotional state, it is definitely probable that they could do anything, especially if they’re financially – hearing his background of – he talked about his financial state and his situation wasn’t looking positive, those things, and in my experience and hearing other stories, led me to believe that what I did was probable.

99. Subsequently, Constable Manoukian was asked whether, in his job, he often meets people who are in the middle of a dispute that is very upsetting to them and that such people will be angry and upset and will be crying and that such people will be irate and will swear. It was put to him that, in those circumstances, he does not automatically assume that, when people are teary or angry or agitated, they have a mental problem. His response was, “You never know”.

100. Constable Manoukian agreed that the only thing that made the position of Mr Talovic different from a normal police attendance at a person’s residence was that he had been told that, earlier that morning, Mr Talovic had made threats of self-harm. It was suggested to him that there was nothing in what he had observed that added to his concern about self-harm, other than what Ms Alridge had told him. His response was:

Other than my observations of his change of mood and change of behaviour, and all that, adds to what he said, that it’s possible that what he said he meant.

He agreed that it was “possible” that it was only when he was asked about his argument with Ms Alridge and what had transpired between the two of them that Mr Talovic became upset.

101. The primary judge found that it was clear that it was Constable Manoukian who made the decision to apprehend Mr Talovic and that, therefore, it was the belief of Constable Manoukian that was relevant for the purpose of applying s 22 of the Mental Health Act. His Honour said that the overall impression that he had from the evidence of Constable Manoukian was that Constable Manoukian considered his attendance at Mr Talovic’s apartment to be more in the nature of “an investigation” than a “welfare check”.

102. The primary judge referred specifically to the response given by Constable Manoukian (paraphrased above at [90]), when asked in examination-in-chief whether he had any concerns about leaving Mr Talovic alone in the apartment. Constable Manoukian had said that he had concerns that, if he left, “anything was possible” and that, “as a duty of care” for Mr Talovic, Constable Manoukian would much prefer to do what he believed was correct in taking him to the Concord Centre to have him assessed.

103. The primary judge considered that that answer encapsulated the essence of the concerns of the Police Officers and reflected the very clear impression that his Honour gained from Constable Manoukian’s evidence as to what occurred. His Honour then made several observations as follows:

• Constable Manoukian did not say that his concern was that Mr Talovic would probably hurt himself, but that “it was probable that he may seriously hurt himself or kill himself”;

• That “somewhat garbled formula” reflected what, in his Honour’s view, were Constable Manoukian’s concerns, namely, that “anything was possible”. That was reflected in what Constable Manoukian told Mr Talovic’s solicitor over the telephone, namely, that he “could be a risk”;

• In Constable Manoukian’s mind, the fact that Mr Talovic’s suicide was something that fell into the category of “anything is possible” was a factor of relevance, because he considered that he had a duty of care for Mr Talovic and was concerned to avoid any possibility of self-harm to Mr Talovic, lest he be held in some way responsible for anything that happened to him;

• Having given the answer summarised above, Constable Manoukian said later in his evidence that he had formed the view that Mr Talovic would probably attempt to kill himself or cause serious physical harm to himself.

104. The primary judge found that Constable Manoukian had earlier asserted that it was his view that “it was possible that [Mr Talovic] may do serious harm”. In fact, the evidence given by Constable Manoukian, as indicated above, was that he formed the view that it was probable that Mr Talovic may do serious physical harm to himself or kill himself. Surprisingly, his Honour then went on to say that those later answers by Constable Manoukian were, in his Honour’s view, “a belated attempt to fit his evidence to the required formula”. That proposition was not put to Constable Manoukian in cross-examination or by his Honour.

105. The primary judge considered that it was unnecessary to deal with whether Constable Manoukian’s understanding of his duty of care towards Mr Talovic was right or wrong. His Honour said that the tenor of Constable Manoukian’s evidence was to the effect that he had a duty to have Mr Talovic assessed, that he was concerned about the possibility of Mr Talovic hurting himself, and that Constable Manoukian therefore made the decision in what his Honour described as “a detrimentally defensive frame of mind”. Once again, that proposition was not put to Constable Manoukian in cross-examination or by his Honour.

106. The primary judge then concluded that Constable Manoukian did not hold a belief that it was probable that Mr Talovic would attempt to kill himself or cause serious physical harm to himself. Rather, his Honour said, Constable Manoukian held the belief that it was possible that Mr Talovic may attempt to do something to harm himself. His Honour said that Constable Manoukian’s phrasing – “he reasonably could” – betrayed his reasoning process. His Honour concluded that Constable Manoukian was worried that Mr Talovic might do something and thought that the best thing to happen was for Mr Talovic to be taken to a mental health facility.

107. The reference to the phrase “he reasonably could” by the primary judge is obscure. The observation that Constable Manoukian’s answers were a “belated attempt to fit his evidence to the required formula” is equally obscure. His Honour gave no explanation as to why that conclusion would follow from the answers that were given. It appears to be tantamount to a finding that Constable Manoukian could not be believed on his oath as to his state of mind.

108. The primary judge concluded that Constable Manoukian did not hold a belief that it was probable that Mr Talovic would attempt to kill himself or cause serious physical harm to himself, in the terms of s 22 of the Mental Health Act. Nevertheless, his Honour dealt with the question of whether, if such a belief were held, it was reasonable. His Honour concluded that, if such a belief were held, it was unreasonable for a number of reasons, as follows:

• This was not an emergency situation in which quick and decisive judgments had to be made;

• At no stage did the Police Officers attempt to discuss with Mr Talovic whether in fact he had any intention to do an act of self-harm, notwithstanding that the alleged threat had been made some eight hours earlier;

• The conclusion by Constable Manoukian that Mr Talovic was paranoid, or acting in a paranoid fashion, was without foundation. His Honour considered that the two particular acts of Mr Talovic were entirely reasonable and rational and that to conclude that he was paranoid was unreasonable;

• No consideration was given by Constable Manoukian as to whether Mr Talovic was upset for entirely justifiable reasons and no serious attempt was made to calm him: indeed, the searching of the apartment, telling Mr Talovic that he was under arrest and threatening to put him in handcuffs exacerbated the situation.

109. The primary judge concluded that, for the same reasons, any belief held by Constable Manoukian that it would be beneficial to Mr Talovic’s welfare to be dealt with in accordance with the Mental Health Act, rather than in accordance with law, was not based on reasonable grounds. Therefore, his Honour concluded, the apprehension of Mr Talovic was not authorised by s 22 of the Mental Health Act. His Honour also considered that it was clear that, in response to direct questioning from Mr Talovic, Constable Manoukian told him that he was under arrest and that he was not free to leave. His Honour therefore concluded that, in circumstances where the only defence to the claim of unlawful imprisonment was that it was pursuant to a lawful authority, and the imprisonment was not pursuant to that lawful authority under s 22, the claim of unlawful imprisonment had been made out.

110. The claim by Mr Talovic against the State for trespass to land turns on the searches of the apartment undertaken by the Police Officers after Mr Talovic had admitted them to his apartment. While the primary judge did not make specific findings about the searches, it is clear enough that the evidence supported a finding that one or other of the Police Officers had in fact undertaken searches after they were admitted. That was not disputed by the State.

111. The primary judge found that there was no evidence that the Police Officers forcefully entered Mr Talovic’s apartment. The evidence of Mr Talovic himself was that, after the Police Officers announced themselves and asked to come in, he consented to their entry into the apartment. His Honour accepted Mr Talovic’s evidence that the Police Officers walked past him into the apartment and that Constable Manoukian searched the bedrooms. His Honour also found that Constable Sturevski looked in other rooms. His Honour found that the Police Officers informed Mr Talovic that they were there to check on his welfare and that they asked if they could come in for a chat. His Honour concluded that the Police Officers lawfully entered the apartment for the purposes of talking to Mr Talovic and checking on his welfare. However, his Honour found that such licence as the Police Officers were granted to enter the apartment did not extend to a search of the apartment. His Honour concluded, therefore, that the search of the rooms constituted a trespass.

112. The State does not dispute the finding that the Police Officers searched the apartment. However, they say that the consent given by Mr Talovic to the entry into the apartment extended to a licence to search the apartment for the purposes of performing their functions under the Mental Health Act. However, the State did not contend that the provisions of the Mental Health Act, or any other legislative provision, constituted a separate authorisation or licence to conduct the search. The State’s contention is that the circumstances of the Police Officers’ being invited into the apartment by Mr Talovic constituted the granting of a licence to engage in the conduct in which they then engaged, by searching the apartment.

The Appeal

113. Four questions arise in the State’s appeal. The first concerns the construction of the first prerequisite of s 22(1). The second question is whether the second prerequisite of s 22(2) was satisfied, and that question has two parts to it. The third question is concerned with the finding by the trial judge that the Police Officers committed trespass. The fourth question concerns the award of exemplary damages. I shall deal with each separately. First, however, it is desirable to say something about the policy behind the Mental Health Act.

114. Mental health legislation has often evinced a vacillation between a paternalistic treatment model, on the one hand, and a due process model strictly protective of individual rights, on the other hand. Because of the policy ambivalence that such legislation displays, courts should be wary against filling the gaps that are demonstrated in the operation of the legislation. Mental health legislation can sometimes be used to control the behaviour of individuals merely to relieve family, neighbours and acquaintances from their embarrassment, rather than to assist the individual’s primary concern to be themselves. For that reason, courts must be vigilant against misuse or excessive use of powers conferred under such legislation. One way to exhibit such vigilance is to insist that, if Parliament is to justify enforced intrusion into the life of an individual, it must do so in very clear terms and by affording those who assert their authority with very clear powers (Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 322-323). If there is ambiguity in legislation affecting the liberty of the subject, the ambiguity will normally be construed in favour of the person affected.

First Prerequisite of s 22(1)

115. The first question is whether the first prerequisite of s 22(1) involves an entirely subjective test. Related to that question is the correct meaning of the phrase “mentally disturbed” when used in s 22.

116. The primary judge concluded that it is necessary to determine whether the apprehended person appeared, to a person in the position of a police officer at the relevant time, to be mentally ill or mentally disturbed, according to a lay person’s appreciation of those terms. Thus, his Honour considered that the first prerequisite did not involve a wholly subjective test and was not satisfied simply by the relevant police officer stating that the apprehended person appeared, to that officer, to be mentally ill or mentally disturbed. Further, his Honour equated “mentally disturbed”, which is not defined in the Mental Health Act, with the term “mentally disordered”, which is defined. Before dealing with the first question, it is desirable to say something about the definitions in the Mental Health Act and then the scheme of Div 2.

117. Section 14 of the Mental Health Act provides that a person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or for the protection of others from serious harm. Under s 4(1), mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of certain symptoms that are set out in the definition. Those symptoms include delusions, hallucinations, serious disorder of thought form and severe disturbance of mood. Section 15 then provides that a person, whether or not the person is suffering from mental illness, is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion, on reasonable grounds, that temporary care, treatment or control of the person is necessary for the person’s own protection from serious physical harm or for the protection of others from serious physical harm.

118. Thus, the structure of s 14 differs a little from that of s 15. Section 14 requires reasonable grounds for believing that action is necessary by reference to the possibility of serious harm. Section 15, on the other hand, refers to a conclusion on reasonable grounds that action is necessary by reference to the possibility of serious physical harm. However, both clearly refer to objective standards. Those definitions are relevant for the various provisions of Div 2 that deal with admission to, and initial detention in, mental health facilities. The provisions are summarised in s 18 of the Mental Health Act.

119. Thus, s 18 refers to the following circumstances in which a person may be detained in a mental health facility:

1. On a mental health certificate being given by a medical practitioner or accredited person under s 19;

2. After being brought to such a facility by an ambulance officer under s 20;

3. After being apprehended by a police officer under s 22;

4. After an order for an examination and an examination or observation by a medical practitioner or accredited person under s 23;

5. On the order of a magistrate or bail officer under s 24;

6. After transfer from another health facility under s 25; and

7. On a written request made to an authorised medical officer by a primary carer, relative or friend of the person under s 26.

It is desirable to say something about each of those circumstances, since they throw some light on the terms used in s 22.

120. Section 19 applies where, relevantly for present purposes, a medical practitioner is of the opinion that the person is a mentally ill person or a mentally disordered person. Section 23 provides that a magistrate may authorise a medical practitioner or accredited person to visit and personally examine or personally observe a person if the magistrate or officer is satisfied, relevantly, that the person may be a mentally ill person or a mentally disordered person. A person who is examined or observed under s 23 may be detained in accordance with s 19.

121. Under s 24, a person may be taken to and detained in a declared mental health facility in accordance with an order made under the Mental Health (Forensic Provisions) Act 1990 (NSW). Under s 25, a person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.

122. Finally, under s 26, a person may be detained in a declared mental health facility on a written request being made to the authorised medical officer by the primary carer or a relative or friend of the person. However, an authorised medical officer must not detain any such person unless the officer is satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained on the basis of a mental health certificate.

123. Section 27 then sets out the steps that must be taken in relation to a person who is detained in a mental health facility under Div 2. The steps involve initial examination by an authorised medical officer, examination by a second medical practitioner and then examination by a third medical practitioner, if the second examiner does not find the person to be mentally ill or mentally disordered. An authorised medical officer must notify the Mental Health Review Tribunal and bring the person before the Tribunal for a mental health inquiry if the person is found to be a mentally ill person or is found to be a mentally disordered person. If the third examiner does not find the person to be a mentally ill person or a mentally disordered person, the person must not be detained after the third examination. Finally, if a person is found to be a mentally disordered person in Step 1 and in either Step 2 or Step 3, the person may be detained in the mental health facility as a mentally disordered person.

124. It is against the structure of Div 2 and in the context of that scheme that s 20 and s 22 must be construed. Section 20 is concerned with ambulance officers and s 22 is concerned with police officers. Section 20 provides that an ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with the Mental Health Act. I have set out above (at [48]) the effect of s 22.

125. Each of s 20 and s 22 is concerned with the powers of persons other than medical practitioners or accredited persons. Each of s 20 and s 22 refers to a person who appears to be mentally ill or mentally disturbed. Neither refers to a mentally ill person or a mentally disordered person. In that respect, they are to be contrasted with the other provisions in Div 2, which refer to mentally ill persons and mentally disturbed persons.

126. Under the other provisions of Div 2, medical practitioners or accredited persons are required to form an opinion as to whether a person is (or, in s 23, may be) a mentally ill person or a mentally disordered person. On the other hand, ambulance officers and police officers, who, in the present context, are clearly treated as lay persons, may exercise a power if it appears that a person is mentally ill or mentally disturbed.

127. Thus, a distinction is drawn between a person appearing to be mentally ill or mentally disturbed, on the one hand, and the formation of an opinion by a medical practitioner or accredited person as to whether or not a person is a mentally ill person or a mentally disordered person, on the other hand. There is no reason to doubt that the legislature intended to draw that distinction.

The meaning of the phrase “mentally disturbed”

128. It is somewhat curious that the term “mentally disturbed”, which appears in only two sections of an Act of some 201 sections, and which is not defined anywhere in the Act, should have been used in a provision that confers such an important power on police officers. It appears unlikely, however, that it is a mere drafting error. The term “mentally disturbed” also appeared, undefined, in the equivalent provision (s 24) of the predecessor of the Mental Health Act, the Mental Health Act 1990 (NSW). In the predecessor to that Act, the Mental Health Act 1983 (NSW), the analogous provision (s 74) employed the term “mentally disordered”, but that term was not defined.

129. A possible rationale for not defining a term required to be applied by police officers in the execution of their duty, which clearly has some historical precedent, is that police officers are not properly equipped to undertake a psychiatric diagnosis of members of the public before deciding whether to apprehend them pursuant to s 22. That rationale would be consistent with the use in that section of the undefined term “mentally ill” instead of the similar (and defined) terms “mentally ill person” or “mental illness”.

130. The question then remains what is the meaning of the term “mentally disturbed”. The primary judge construed it to be synonymous with “mentally disordered”, on the basis that the legislature is unlikely to have intended to add a third concept of mental dysfunction in addition to the already defined terms of “mentally ill person” and “mentally disordered person”. Consistently with the rationale described above, it could not have been the legislative intention to impose on police officers a more stringent requirement than that contemplated by the terms “mentally ill person” or “mentally disordered person”. It is equally unlikely that the legislature would have intended that the term “mentally disturbed” impose as stringent a requirement as that contemplated by those two other terms.

131. The better view is that the words “mentally disturbed” are intended to encompass a wider class of persons than the other two terms mentioned. Indeed, the NSW Law Reform Commission’s Report 135 (People with Cognitive and Mental Health Impairments in the Criminal Justice System – Diversion (June 2012)) considered the terminology used in the Mental Health Act and concluded, in respect of “mentally disturbed”, that it appears to “embrace a broader group of people than those who would fall within the statutory definition of ‘mentally ill’ or ‘mentally disordered’” (p 106).

132. The primary judge erred in concluding that the phrase “mentally disturbed”, when used in s 22 and incidentally in s 20, should be equated to the phrase “mentally disordered”.

Whether an entirely subjective test applies

133. The scheme of Div 2 outlined above also leads to the conclusion that the question of whether a person appears to be mentally ill or mentally disturbed in s 22 is to be determined by the subjective state of mind of the relevant police officer. The difference in the structure of s 20 and s 22 is significant in that regard.

134. Like s 22, s 20 has two prerequisites. Under s 20, the power to take a person to a mental health facility arises if an ambulance officer believes, on reasonable grounds, that, first, the person appears to be mentally ill or mentally disturbed, and, second, it would be beneficial to the person’s welfare to be dealt with in accordance with the Mental Health Act. Thus, both prerequisites are governed by a belief “on reasonable grounds”.

135. The first prerequisite of s 22, on the other hand, does not require that a police officer believe on reasonable grounds that a person appears to be mentally ill or mentally disturbed; instead, the person need simply appear to be mentally ill or mentally disturbed. The second prerequisite of s 22 requires that the police officer form a belief on reasonable grounds about both the matter required by the second prerequisite of s 20 and the additional matter of whether it is probable that (relevantly) the person will attempt to kill himself or cause serious harm to himself. Thus, the first prerequisite of s 20 is more demanding than the first prerequisite of s 22, but the second prerequisite of s 20 is less demanding than the second prerequisite of s 22.

136. It may be that the reason why the first prerequisite of s 20 clearly imposes an objective test, in contrast to the first prerequisite of s 22, is that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.

137. There is thus no warrant for reading into s 22(1) an objective requirement in relation to the first prerequisite. That is to say, s 22(1) must be understood as providing that a police officer who finds a person who appears to the police officer to be mentally ill or mentally disturbed may apprehend the person. However, such a police officer may only apprehend the person if the police officer also believes, on reasonable grounds, the matters that are then set out in the balance of s 22(1); that is to say, the second prerequisite must also be satisfied. In the context, it is clear that, before a person can be apprehended, the person must appear to the apprehending police officer to be mentally ill or mentally disturbed. That is to say, the police officer must form the opinion that the person is mentally ill. That requires a subjective opinion by the relevant police officer (see Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at [53]).

138. Arbitrary apprehension by a police officer, based simply on a subjective view formed by a police officer, is not permitted by s 22. The second prerequisite of s 22 applies an additional, undeniably objective, prerequisite. That is to say, even if it appears to an apprehending police officer that a person is mentally ill or mentally disturbed, the power to apprehend does not arise unless the police officer has also formed the relevant belief on reasonable grounds. It is therefore not necessary to construe the first prerequisite of s 22 as dependent in some way upon a person appearing, not to the apprehending officer, but to some hypothetical person, to be mentally ill or mentally disturbed. In any event, for the reasons already given, such a construction should not be adopted.

139. Moreover, the subjective requirement of the first prerequisite is a further protection for an individual who may be apprehended, in addition to the objective second prerequisite. A police officer will not be entitled to exercise the power conferred by s 22(1) in relation to a person unless it is established that the person did in fact appear to the apprehending police officer to be mentally ill or mentally disturbed. If the police officer does not in fact have such a subjective state of mind, the apprehension will not be authorised, even if the officer had the relevant belief on reasonable grounds.

140. The primary judge erred in his construction of s 22(1) insofar as his Honour concluded that it was necessary for the Court to determine whether, to a person in the position of a relevant police officer at the relevant time, rather than to Constable Manoukian, Mr Talovic appeared to be mentally ill or mentally disturbed. His Honour did not make a finding as to whether or not it appeared to Constable Manoukian that Mr Talovic was mentally ill or mentally disturbed. To that extent, his Honour was in error.

The Second Prerequisite of s 22(1)

141. The second question is concerned with the second prerequisite of s 22(1). The second prerequisite required that the Police Officers believed, on reasonable grounds, that:

• it was probable that Mr Talovic would attempt to kill himself or attempt to cause serious physical harm to himself; and

• it would be beneficial to his welfare to be dealt with in accordance with the Mental Health Act, rather than otherwise in accordance with law.

142. The primary judge concluded that Constable Manoukian, who was the relevant officer, did not have the requisite belief that it was probable that Mr Talovic would attempt to kill himself or attempt to cause serious physical harm to himself and that, even if he did hold that belief, the belief was not based on reasonable grounds. The State contends, first, that the Police Officers were denied procedural fairness, in the sense that it was not put to them that they did not genuinely hold the relevant belief. Secondly, the State complains about the finding that such a belief could not have been held on reasonable grounds.

Denial of procedural fairness

143. A party witness should not be criticised for deliberately withholding the truth in a fashion crucial to dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party witness must have been given an opportunity to deal with the criticism (see Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67]). Similarly, a party witness should not be criticised for dissembling or, in effect, giving false evidence crucial to the resistance of a claim against that party, unless those conditions are satisfied.

144. It was essential for the primary judge to set out clearly and logically the factual basis for his Honour’s conclusion that Constable Manoukian did not hold the relevant belief for the purpose of the second prerequisite of s 22(1). More importantly, however, it is clear that Constable Manoukian was not given an opportunity to deal with the finding that he was making “a belated attempt to fit his evidence to the required formula”. Further, his Honour did not give Constable Manoukian the opportunity to deal with the finding that he made his decision “in a detrimentally defensive frame of mind”. That is to say, his Honour did not simply conclude from the language used by Constable Manoukian in giving evidence that he did not hold the relevant belief. Rather, his Honour was critical of Constable Manoukian’s evidence.

145. Similar comments could be made about the findings made by his Honour in relation to Constable Sturevski. However, those findings were not critical, because his Honour concluded that the decision contemplated by s 22 was made by Constable Manoukian, and therefore it was his belief, rather than Constable Sturevski’s belief, that was relevant.

146. Neither Constable Manoukian, nor Constable Sturevski, was a party to the proceedings. However, in substance, the claims made in the proceedings were claims against them. The State was sued simply because it was vicariously liable under the Vicarious Liability Act. In substance, Constable Manoukian and Constable Sturevski were the defendants. The principles of fairness outlined above were applicable in relation to them. His Honour erred in making findings of the nature outlined above without ensuring that the Police Officers were afforded an opportunity to deal with such findings (see State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226 at [37]-[39]).

147. The consequence is that the primary judge failed to make appropriate findings in relation to the second prerequisite of s 22(1). Had Constable Manoukian and Constable Sturevski been given the opportunity of dealing with the possible adverse findings as to their having tailored their evidence to fit a formula, it is possible they may have persuaded his Honour that the relevant belief was genuinely held.

Whether the belief could have been held on reasonable grounds

148. Further, the primary judge erred in concluding that, if Constable Manoukian held the relevant belief, his belief was not based on reasonable grounds. The reasons for his Honour’s conclusion on this issue have already been referred to at [108] above. It is irrelevant that an emergency situation was not involved. It must be possible for s 22 to have application in circumstances where there is no emergency. Further, the fact that the Police Officers did not attempt to discuss with Mr Talovic whether in fact he had any intention to do any act of self-harm is hardly a reason for concluding that Constable Manoukian’s belief was not based on reasonable grounds. There may be any number of reasons why it would be inappropriate to question a person about his intentions to kill himself or harm himself. The fact that the threat had been made some hours earlier does not of itself mean that it was unreasonable to hold the belief that the threat might still be carried out.

149. The primary judge gave no reasons for concluding that Constable Manoukian’s conclusion that Mr Talovic was paranoid was without foundation. Constable Manoukian was not a medical professional. He explained why he used the term “paranoid”. He explained the observations that he made of Mr Talovic’s conduct and why he concluded from those observations, coupled with the information that he had received from Ms Alridge about the threat earlier in the day, that he believed that it was probable that Mr Talovic might harm himself. It is not entirely clear what his Honour meant by saying that “[t]he two particular acts of [Mr Talovic] were entirely reasonable and rational”.

150. Finally, the possibility that Mr Talovic was upset for entirely justifiable reasons may indicate that different views could be held as to whether or not there was a risk that Mr Talovic might harm himself. The question, however, is whether it was reasonable for Constable Manoukian, on the basis of the material that was available to him, to form the relevant belief.

151. The Police Officers were presented with apparently reliable information that Mr Talovic had threatened to kill himself. They verified the information with the source, namely, Ms Alridge, who confirmed the information. They then attended at Mr Talovic’s apartment and found him to be teary and exhibiting mood changes.

152. There are quite cogent reasons for concluding that there were reasonable grounds for Constable Manoukian to hold the relevant belief. In those circumstances, coupled with the other errors made by his Honour in relation to the denial of procedural fairness to Constable Sturevski and Constable Manoukian, the finding that Constable Manoukian did not hold the relevant belief on reasonable grounds should not be permitted to stand.

Trespass

153. The third question is concerned with the finding by the primary judge that the Police Officers committed trespass. Although his Honour found that the Police Officers were invited to enter Mr Talovic’s home, his Honour found that they were not authorised by that invitation to go into other rooms without further specific consent and that, by looking in other rooms by way of searching, they committed a trespass. The State contends that the original invitation to enter Mr Talovic’s apartment was sufficient licence for the officers to carry out the searches that they conducted while inside the apartment. No alternative submission was made that the searches were authorised by a statutory provision.

154. Once it is accepted that the licence that was given to the Police Officers was limited to entry into Mr Talovic’s apartment to speak to him and to make enquiries about his welfare, it is difficult to find an authorisation for the Police Officers to enter bedrooms of the apartment without any express authorisation or licence. If the Police Officers had said “we have come to check whether you might be about to kill or harm yourself and we need to check your apartment to ensure that there is no risk of that happening” and Mr Talovic invited them to come into his apartment, that invitation might carry with it a licence to search the whole of the apartment for any possible means by which he might kill himself or do himself harm. However, it is difficult to construe the words used while the Police Officers were standing at the front door as encompassing such a licence. There was no challenge to the assessment of damages by the trial judge. The complaint concerning the finding of trespass must be rejected.

Exemplary Damages

155. The fourth question concerns the award of exemplary damages. There is no challenge to the assessment of damages for false imprisonment and trespass to land, assuming that the challenge to the primary judge’s findings that those two torts were committed fails in the appeal. However, the State challenges the award of exemplary damages, assuming that the challenge to the finding that the torts were committed fails on the appeal. In the circumstances, it is unnecessary to say anything about the evidence or reasoning that led to the award of compensatory and aggravated damages. However, it is necessary to deal with his Honour’s findings and reasons for awarding exemplary damages.

156. The primary judge accepted that exemplary damages are awarded to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter it from engaging in similar conduct in the future (see Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [8]-[20]). Conduct might be high-handed, outrageous and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing. The findings by the primary judge do not go anywhere near a finding that the Police Officers showed a conscious and contumelious disregard for Mr Talovic’s rights or that their conduct was high-handed, outrageous and showed contempt for Mr Talovic’s rights.

157. Having stated, in unexceptionable terms, the principles for the award of exemplary damages, the primary judge found that the award of compensatory damages was not a sufficient expression of disapproval of the conduct of the Police Officers. His Honour said that Mr Talovic was a person who had committed no crime. He was asleep in his own bed and was causing no harm to anyone and was at no risk of harming himself. His Honour further said that Mr Talovic was awoken by two police officers who searched his apartment, made no enquiries as to whether, at that point in time, he was intending to commit suicide, and, by their conduct exacerbated the situation and caused significant anxiety and distress to Mr Talovic, who was not, at the time, mentally ill or mentally disturbed within the meaning in the Mental Health Act. His Honour said that, as a result of the Police Officers’ actions, Mr Talovic was deprived of his liberty and taken to a mental health facility, where he was locked in a room. That is the extent of the findings and reasoning that led to the conclusion that the case justified a significant award of exemplary damages, namely, $50,000.

158. The matters relied upon by the primary judge for concluding that the case was an appropriate one for the award of exemplary damages simply do not support such an award. All of the matters described by his Honour relate merely to factors that would justify an assessment of compensatory and aggravated damages. His Honour awarded general and aggravated damages for false imprisonment and general and aggravated damages for trespass. There was no finding by his Honour, for example, that Constable Manoukian or Constable Sturevski disregarded Mr Talovic’s rights. It was certainly not put to them that they were not acting in good faith. Even if they were mistaken as to whether or not there were reasonable grounds for forming the belief that Constable Manoukian said he held, that is a totally different matter from concluding that he showed a conscious and contumelious disregard for Mr Talovic’s rights. It was not suggested to Constable Manoukian or Constable Sturevski that their conduct was high-handed or outrageous or that it showed contempt for the rights of Mr Talovic. There was no justification whatsoever for reaching the conclusion that their conduct should be described in that fashion. His Honour clearly erred in awarding exemplary damages.

Leave to Appeal

159. Since the amount involved in the appeal is less than $100,000, the State requires a grant of leave to appeal. Having regard to the questions of principle concerning the construction of s 22 that are raised, and the errors to which I have referred above, it is appropriate that the State be granted leave to appeal.

Conclusion

160. It follows from the conclusions outlined above that the primary judge erred in concluding that the Police Officers had committed a wrongful or unlawful arrest of Mr Talovic. Even if that apprehension was wrongful, the award of exemplary damages cannot stand. In all of the circumstances, the appropriate course is to allow the appeal, set aside the judgment and orders of the District Court, and remit the matter to the District Court for a new trial as to whether there was a wrongful or false imprisonment. The damages finding was not challenged. If, on a new trial, there is a finding of liability for wrongful imprisonment, the damages of $30,000 would stand. The verdict and judgment in relation to trespass should stand. There would be no award for exemplary damages as a result. Since the State was not totally successful in the appeal, Mr Talovic should pay 75% of the State’s costs of the appeal. If Mr Talovic is eligible, there should be a certificate under the Suitors’ Fund Act 1951 (NSW).

161. TOBIAS AJA: In this matter I have had the benefit of reading in draft the judgment of Emmett JA which contains a comprehensive statement of the facts and the issues in the appeal. I agree with all his Honour has written with one significant exception and that is as to the question of whether Constable Manoukian believed that it was probable that Mr Talovic would attempt to kill himself and, if he held that belief, whether it was on reasonable grounds.

162. The actual text of s 22(1)(a) of the Mental Health Act 2007 (NSW) (the Act) is in the present tense, and requires the relevant police officer to believe on reasonable grounds that it is probable that the relevant person will attempt to kill himself or herself. It is not sufficient that the officer believes that it is probable that the relevant person may, might or could attempt to kill himself or herself: the belief must be that he or she will attempt to do so. In my view on the basis of the evidence to which I shall refer below, Constable Manoukian’s belief, assuming in his favour that he held one, did not rise above a belief that it was probable that Mr Talovic may or could attempt to kill himself. Furthermore, even if, on the basis of that evidence, Constable Manoukian did hold the belief required by the statutory language, in my view it could not have been held on reasonable grounds. That is not a criticism of Constable Manoukian and does not involve the rejection of his evidence which, as Emmett JA has pointed out, was wrongly criticised by the primary judge. I therefore proceed upon the basis that the whole of the relevant part of Constable Manoukian’s evidence is accepted.

The Relevant Evidence

163. Regrettably in order to make good the above propositions it will be necessary to refer in some detail to the evidence of Constable Manoukian which will involve repetition of a deal of the evidence set out in the reasons of Emmett JA. However that cannot be avoided.

164. The first aspect of the evidence involves a conversation between Constable Manoukian and Ms Alridge. In that respect Constable Manoukian’s evidence was that Ms Alridge advised him that she had had a conversation with Mr Talovic. His account was as follows:

“I asked her what the situation was, and she advised me that she had spoken to Mr Talovic, he was upset and he advised on the first occasion that he would kill himself, then hang [sic] up the phone at the end of the conversation. And during her second conversation with him, he once again was upset and then stated that he would finish himself off and then hung up the phone a second time. He was quite upset and then, that’s what she had confirmed to me.”

This raised a concern with Constable Manoukian that Mr Talovic “could be a risk, could cause serious harm to himself or kill himself”. However, a belief that Mr Talovic could attempt to kill himself or that there was a risk that he might so attempt, does not accord with the statutory language of s 22(1)(a).

165. I accept for present purposes the evidence of Constable Manoukian as to the behaviour of Mr Talovic when they were in his lounge room. He was found by Constable Manoukian to be emotional and, in his view, paranoid. That Mr Talovic seemed paranoid that his neighbours might become aware that he was being interviewed by the police was probably not an unnatural reaction. Constable Manoukian’s evidence was to the effect that Mr Talovic explained to him what had happened with Ms Alridge which concerned a dispute about his workers compensation payments and that he was upset and angry as a due payment had not gone through.

166. Constable Manoukian’s evidence as to his observations of Mr Talovic whilst they were talking was as follows:

“… I was trying to just observe his behaviour which, his speech was erratic in that he was speaking fast at some points and then slowed down. He appeared to be nervous and began to question us as to why we were there and what we were going to do. His eyes began to appear a bit glazed at some points, possibly that he was becoming emotional and he began to explain his financial situation that was quite difficult for him at the time; so you could see his emotions were heightened. He was sitting down at one point, then he stood up and then he was sort of pacing back and forth. I do remember he swore a few times.”

167. Further, Constable Manoukian observed that when Mr Talovic was speaking about financial matters there was a “bit of a quiver” in his voice as he was obviously emotional about some things and upset. He observed that Mr Talovic did not seem stable at that time. I accept that these were matters that Constable Manoukian took into account along with what he had been told by Ms Alridge in forming a belief which, in Constable Manoukian’s view, justified the apprehension of Mr Talovic and his conveyance to a declared mental health facility.

168. Constable Manoukian’s evidence as to his thought processes, as distinct from his observations of Mr Talovic’s behaviour, was stated in different terms both in chief and in cross-examination. I think it is important to set out the relevant passages of his evidence verbatim.

169. In Constable Manoukian’s evidence in chief, he referred to his phone call to Mr Talovic’s solicitor when he:

“advised him that [Mr Talovic] had a conversation with Marge Alridge and as a result [Mr Talovic] had obviously stated that he would kill himself and finish himself off, we had concerns for himself, that he could be a risk, could cause serious harm to himself or kill himself, so as a result we were conveying him by ambulance … to Concord Mental Health…”.

I pause to interpolate that in my view it is insufficient for there to be compliance with the statutory requirement that Constable Manoukian’s belief was no more than that there was only a risk that Mr Talovic would kill himself or could cause serious harm to himself.

170. When asked in chief whether he had any concerns about leaving Mr Talovic alone in his home unit, Constable Manoukian responded as follows:

“Yes, my concern was if we left the location without having him assessed by a professional, based on my observation and what he has said, which is what I was taking the opinion of Marge Alridge, he could be, you know, it’s probable that he may seriously hurt himself or kill himself going through with what he has said to Marge Alridge on two occasions. I had concerns that if I left anything was possible, and as a duty of care for him I would much prefer to do what I believed was correct in taking to Concord Health to have him assessed, and that’s really essentially what happened, so I would do the same thing if it came up again.” (My emphasis.)

Again, the statutory requirement is not complied with if the Constable’s belief was only that it was probable that Mr Talovic “may” seriously hurt himself or kill himself. Nor was it sufficient, in my view, that “anything was possible” if he was not apprehended.

171. Towards the end of his evidence in chief, Constable Manoukian was asked what he meant by his observation that Mr Talovic was paranoid. He responded:

“I believe because what I was explaining to him was that he wasn’t in trouble and that what was happening was for his own welfare, but he seemed, in my mind, paranoid to come, that maybe something further was going to happen to him and on that basis, I believed he was paranoid, because he was very resistant obviously to come with us the whole time and I thought, there’s something – maybe he is thinking that there is more to it than there is, but there wasn’t, obviously. It was merely for his own welfare. Also at the front door when he was paranoid about the neighbours, he quickly sort of ushered us in a sense, and that also gave me the perception that he was paranoid about the neighbours.” (My emphasis.)

172. It is apparent that this response by Constable Manoukian as to his understanding of Mr Talovic’s perceived paranoia did not form part of his thought processes relevant to any belief he may have held to the effect that it was probable that Mr Talovic would attempt to kill himself if the police left him in his home. On the contrary, the Constable was referring to the fact that Mr Talovic exhibited concern as to what was going to happen to him if he went with the police as they were demanding, and to the reaction of his neighbours observing him leaving in the company of the police.

173. In cross-examination, Constable Manoukian stated that even before Mr Talovic was told that he was going to be taken to hospital in an ambulance against his will, he was pacing up and down the room and appeared even nervous at that point in time. His eyes were glazed and it was apparent that he had been crying although he corrected that to teary. Obviously, according to Constable Manoukian, it was an emotional time for Mr Talovic as “things had been happening”. He stated that he took all these considerations into account.

174. When asked whether he became teary after it was explained to him why the police were there and what they were doing, Constable Manoukian responded that Mr Talovic was divulging information about his life, and his circumstances during which he became emotional. It was obvious that it was a stressful time for him and this was before it was explained to him that he would be conveyed to a mental facility. Constable Manoukian’s observations were “increased” and Mr Talovic’s mood changed and he became angry after he was informed that he was to be “conveyed”.

175. When it was suggested to Constable Manoukian that he never formed the view that if he did not convey him to hospital Mr Talovic was likely to cause himself harm or kill himself, he responded:

“I’ll clarify: that’s right, I formed the view that if I didn’t take him, that it was probable that he may do serious physical harm to himself or kill himself. Does that help?” (My emphasis.)

Again I note that the use by Constable Manoukian of the word “may” lacks conformity with the statutory requirement that the relevant belief be that it is probable that the relevant person will attempt to kill himself. The comment “[d]oes that help?” may have a number of connotations but I do not pause to consider it further.

176. When it was suggested to Constable Manoukian based on what Ms Alridge had said and what he had observed of Mr Talovic that he may have thought that there was some possibility that if he did not act Mr Talovic might hurt himself or worse, he responded:

“I would say that I was not leaving that place unless he was being conveyed to be scheduled due to my concerns for his mental state, so I had formed the opinion that he was a risk to himself and it was probable that he could do physical harm to himself based on his admissions to Allianz plus my observations, taking all this into account, that’s what led me to make my decision.”

Again, a belief that a person “could” do harm to himself or herself does not satisfy the statutory test.

177. Towards the end of his cross-examination, Constable Manoukian was asked by his Honour whether he thought it was probable that Mr Talovic was going to commit suicide if he walked out the door of the flat, to which he responded that it was probable. When asked what the basis for that view was, he responded:

“Well, like I was saying, his emotional state when I was talking to him, if his speech is being erratic at some points, if he appeared to have been crying, and if he has made those allegations that he would finish himself off and kill himself, and if he’s hung up the phone on her and she has said that he was upset on the phone, based on my experience, these people – if the person is in an emotional state, it is definitely probable that they could do anything, especially if they’re financially – hearing his background of – he talked about his financial state and his situation wasn’t looking positive, those things, and in my experience and hearing other stories, lead me to believe that what I did was probable.” (My emphasis.)

178. I also refer to the following exchange during Constable Manoukian’s cross-examination:

“Q.   You don’t automatically assume when people are teary or angry, or agitated that they’ve got a mental health problem, do you?

A.   You never know.

Q.   The only thing that made this different from a normal attendance was that what had prompted the attendance was somebody had told you that the person earlier that morning had made threats of self-harm.

A.   Correct.

…

Q.   Well, there was nothing in what you observed that added to any concern about self harm other than what Marge Alridge had told you.

A.   Other than my observations of his change of mood and change of behaviour, and all that, adds to what he said, that it’s possible that what he said he meant.

Q.   But he denied it, didn’t he, you’ve told us that?

A.   Correct, that’s right.” (My emphasis.)

179. I add to the foregoing that Constable Manoukian asked Mr Talovic multiple times whether he recalled saying at all that he would kill himself which on all occasions he denied. However, that was more directed to the accuracy of his conversation with Ms Alridge.

180. Finally, the following exchange during Constable Manoukian’s cross-examination is, in my view, relevant to Constable Manoukian’s understanding of the task that he was undertaking:

“Q.   [W]hen you attended the premises of Mr Talovic on 17 November 2011, was it your understanding that if after speaking to him you were concerned for his wellbeing, that you were entitled to call an ambulance and have him conveyed to the hospital?

A.   It is my --

Q.   Was that your understanding?

A.   Yes.

Q.   All right. So in terms of the question you asked yourself when you got there, was that the process you went through, that you went there to decide whether you had concerns about his health and welfare.

A.   That’s right.”

Reasonable Belief Is Not Reasonable Suspicion

181. The leading authority on the issue of reasonable belief is that of the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 where the Court (Mason CJ, Brennan, Deane Dawson, Toohey, Gaudron and McHugh JJ) stated (at 112) that:

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”

182. At 115 the Court, referring to what Lord Devlin said in Hussien v Chong Fook Cam [1970] AC 942 at 948, stated that suspicion

“in its ordinary meaning is a state of conjecture or surmise where proof is lacking. …The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.”

183. Their Honours continued (at 116):

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

See also Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15] per McColl JA, (with whom Hoeben JA agreed), where her Honour sets out a series of propositions extracted from the decisions to which she refers at [13] and [14].

184. Of course it was not for Constable Manoukian to express an opinion as to whether he had reasonable grounds for his belief but whether a reasonable man in his position would have held such a belief having regard to the information which was in Constable Manoukian’s mind. That raises two questions. The first is whether, accepting Constable Manoukian’s evidence which I have set out in detail above, he not only held a belief but held a belief that conformed with the statutory text and, secondly, if he did hold that belief, whether he had reasonable grounds for doing so. In my view the answer to each of these questions is in the negative.

Did Constable Manoukian hold the relevant belief?

185. As to the first issue, in my view Constable Manoukian’s evidence as to the nature of his belief, accepting for present purposes that it was genuine, was not that it was probable that Mr Talovic “will attempt to kill himself” or would attempt to kill himself if he was not apprehended, but that there was only a risk that he could do so, or that he may or might do so, or that it was possible that he may do so. He may have held that belief but whether he had reasonable grounds for holding it is another matter. I regard it as insufficient that his stated belief went no higher than a threat that Mr Talovic “may”, “could” or “might” attempt to kill himself or that such an attempt was “possible” when the statute mandated a belief that he “would” attempt do so.

186. In my view the overall impression one obtains from the evidence of Constable Manoukian that I have recorded above is that the belief that he held did not rise above one whereby it was possible, and maybe probable, that Mr Talovic may or might attempt to kill himself if he was not apprehended or that at least there was a risk that he may do so. In my view such a belief fails to accord with the clear requirements of s 22(1)(a).

187. Although I accept that the purpose of the Act is intended to be beneficial to the individual (as Basten JA notes in his reasons at [3] which I have also had the benefit of reading in draft), nevertheless I see no reason to give the plain words of the statute a more liberal construction simply for that reason. The fact is that the Act involves an abrogation or curtailment of the fundamental freedom of a citizen not to be apprehended by police unless they are suspected of committing a crime: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437. There is no ambiguity in the words of the text and in my view they should not be departed from. The various terms and expressions used by Constable Manoukian in his evidence both in examination and cross-examination, although at times a little confusing, nevertheless in my view did not constitute a belief in the terms required by the statutory text.

188. Accordingly, for the foregoing reasons in my opinion the belief formed by Constable Manoukian was not one which engaged s 22(1)(a). That finding is sufficient of itself to justify the appeal as to liability being dismissed.

If Constable Manoukian held the relevant belief, did he do so on reasonable grounds?

189. If, contrary to the conclusion I have reached above, Constable Manoukian held the belief required by statute, in my view, it was not held on reasonable grounds, when viewed objectively. The Constable had two sources of information. The first was his own observations as to Mr Talovic’s behaviour in his presence. He regarded him as emotional and paranoid although the latter, as I have indicated, relates to his concern that his neighbours should not see him being interviewed by the police as well as to what might happen to him if he went with police, which was not an unreasonable stance. He was observed to be angry, teary, at times agitated, at times not and generally upset by the police presence. Furthermore, it was apparent that he was angry and upset due to the failure of Allianz to provide his workers compensation payment on time, apparently this not being the first time this had occurred.

190. The other source of information known to Constable Manoukian was the advice he received by speaking to Ms Alridge, that that morning Mr Talovic had indicated that he would kill himself and a little later in a further conversation that he would finish himself off. In the meantime some six or seven hours had elapsed between the time of that conversation and the time the police were interviewing Mr Talovic. Yet it would have been apparent to Constable Manoukian viewed objectively, that Mr Talovic had done nothing to harm himself in that time and the police, having searched the premises, had not found any implements which might have facilitated any attempt on Mr Talovic’s part to commit suicide or otherwise harm himself. In this context I therefore respectfully disagree with the view expressed by Emmett JA at [148] of his reasons that the fact that Mr Talovic’s threat to kill himself had been made some hours earlier (at 10:00 am that morning) did not of itself mean that it was unreasonable to hold the belief that the threat “might” still be carried out, in view of the statutory requirement that the officer believe on reasonable grounds that the threat “will” be carried out.

191. In the foregoing circumstances it is perhaps unsurprising that Constable Manoukian’s belief rose no higher than a belief that it was probable that Mr Talovic may or might attempt to kill himself or that there was a risk that he may or might do so. However, even if Constable Manoukian held the belief required by the statute, it was not one held on reasonable grounds in that the information at his disposal, including what he had been told by Ms Alridge, did not in the circumstances constitute the existence of facts sufficient to induce the required state of mind in a reasonable person.

192. I am therefore unable to agree with Emmett JA’s view expressed at [152] of his reasons that there are quite cogent reasons for concluding that there were reasonable grounds for Constable Manoukian holding the relevant belief.

Conclusion

193. As I have already indicated, I agree with all that has been written by Emmett JA except with respect to the two issues that I have dealt with above. In these circumstances I do not consider that it would be appropriate, notwithstanding the lack of fairness arising from the primary judge’s credit findings with respect to the two police officers, that a substantial wrong or miscarriage has occurred of such kind that would justify a new trial: see Uniform Civil Procedure Rules, r 51.53(1). In coming to this conclusion I have proceeded upon the assumption that Constable Manoukian’s evidence, which is the only relevant evidence, is accepted in its entirety but that it fails to establish either the necessary belief called for by the statutory text on the one hand or, if it does, that the grounds relied upon by the State for that belief are not reasonable.

194. Accordingly, as in my view the State has failed to demonstrate that on the basis of Constable Manoukian’s evidence he held the belief that it was probable that Mr Talovic would attempt to kill himself and that that belief was held on reasonable grounds, it follows that the State’s challenge to the primary judge’s finding of liability in favour of Mr Talovic should be rejected.

195. As to the question of costs, in my view the costs awarded by the primary judge should stand. With respect to the costs of the appeal, the applicant has succeeded only on the issue of exemplary damages which took up little time on the appeal both in terms of submissions, written and oral. In my view it would be appropriate that the applicant pay 85 per cent of the respondent’s costs of the leave application and the appeal.

196. I would therefore propose the following orders:

(a)   Grant leave to appeal.

(b)   Appeal allowed in part.

(c)   Set aside the verdict and judgment in favour of the respondent and in lieu thereof there be a verdict and judgment for the respondent in the amount of $35,000.

(d)   Otherwise the appeal be dismissed.

(e)   The applicant to pay 85 per cent of the respondent’s costs of the summons for leave to appeal and the appeal.

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Amendments

03 June 2015 - [6] - Quote - line 1: amend "s 24" to "section 24"
[6] - Quote - line 3: remove "statutory" and replace it with "special"
[9], line 5: remove "1982" and replace it with "1983"
[77], third sentence: "or" changed to "and"
[108], third bullet point: "s" removed from "particulars"
[117], first sentence: "treatment and control" changed to "treatment or control"
[118], second sentence: second "that" (appearing after "action") removed
[125], second sentence: "appearing" changed to "who appears"
[137], last sentence: "Stewart" changed to "Stuart"
[149], third sentence: words "why he reached the conclusion" removed

Decision last updated: 03 June 2015