The case of Music v State of New South Wales [2025] NSWDC 487 (26 November 2025) received media attention, no doubt in part because there was video that television stations could show – see for example ‘NSW Police ordered to pay $24k to Sydney woman over ‘confrontational’ mental health check’ ABC News(Online) 26 November 2025. Watching the video helps put the judgment in context.

September 2021

Ms Music had a long and unfortunate history with police but not one where she had been charged with any offence; ‘She had, however, several earlier interactions with police leading up to that day (not involving any personal misconduct by her) which led her to develop an ingrained resentment, fear and mistrust of police officers’ ([1]).

On 30 September 2021 Ms Music had had a conversation with a representative of Allianz insurance.  At [60]-[63]:

Ms Music recalled speaking to ‘Ian’ from Allianz at about 4pm. Only she and Mr Settineri were in the house. He was downstairs. She was in the bedroom. She said she had not been drinking that day or otherwise taken any drugs. The context for the call was the damage to another or other motor vehicles. Ms Music’s son, Brandon had caused when driving a motor vehicle registered in Ms Music’s name, apparently, in a police pursuit. It emerged later through her cross-examination, that Brandon had been on ice, had obtained the keys to her car and she believed that he was going to drive her vehicle to harm himself.

‘Ian’ indicated that her car was not insured and she might be liable to pay a debt for property damage in the sum of $150,000. She recalled saying “Oh my God, what else is going to happen? I might as well just kill myself”. She explained that her question was a reflection on how much she had lost in her life. The statement was ‘just a matter of speech’, as she was upset about everything. She said that Ian had indicated to her that he was going to call the police and her response to that indication was to tell him not to call police, since she was not going to kill herself.

Ms Music said that within 5 minutes, she rang Ian again. On this occasion, she recalled again asking him not to call police. She told him (again) that she was not going to kill herself. But Ian said that he had already called them.

Later in cross-examination, she accepted that the Allianz representative explained that its contact with police was done consistently with a belief that it had a duty of care to her.

The representative of Allianz called police who attended the home. Neither Mr Music or her former de facto partner, Mr Settineri, who was at her home at the time would open the door nor would Ms Music come to the door to speak to police. His Honour, Abadee DCJ, said (at [17]):

At about 4:40pm, Constables Alo and Casey requested additional police back-up to attend the premises. At about 4:50pm, at least four other police officers arrived at the property. One of them was LSC Cashmere. At about that time certain events occurred; although there is a dispute about the proper sequencing of them. Taking the sequence as Ms Music asserted the events to have occurred, for the moment, she walked out on to the balcony, which was located on the first floor above the garage at the front of the townhouse and told the police to “fuck off” and “leave me alone”. CCTV footage of her being on the balcony, and appearing to remonstrate with the officers below her, is at Exhibit F.

Police spoke with Mr Settineri through the closed door and warned that if Ms Music did not come and speak with them, they would force the door ([19]). Mr Settineri said (at [67]) that he:

… accepted that [Ms Music] told him not to open the door. He complied with this; explaining that it was Ms Music’s house. But he thought that it was this which prompted Ms Music to step out on to the balcony. He heard her say to police “You’ve seen me now. I’m okay”. He did not see the point of her additionally opening the door after she had made her appearance on the balcony. 

Ms Music (at [72]):

… agreed in cross-examination that she was downstairs, on the inside of the front door, and swore at police officers a couple of times. She agreed that she was hostile towards them. She did not dispute, in terms, that she had a choice whether or not to open the door to police, but explained that she thought police were going to hurt her.

At 4:48pm police did force entry, Mr Settineri was handcuffed and his dog was tasered ([21]-[25]).  Ms Music could not be found.  A search was conducted that was escalated to include the police air wing and the Police Order and Riot Squad. Ms Music was found hiding in the neighbours shed.  His Honour said (at [32]):

Ms Music emerged from the garden shed. How she was behaving as she came out of the shed was contentious. It is common ground that LSC Cashmere attended the backyard and walked up to Ms Music, who at that point was standing on a garden bed area; and thereafter he deployed capsicum spray against Ms Music. Thereafter police officers approached her with Constable Alo, in particular, handcuffing her, with her hands behind her back.

She was then taken by police to a waiting ambulance and transported, with police escort, to Blacktown hospital.  

She was later examined by medical officers in the hospital. A Patient Health Record produced by the Department of Health indicated that she was admitted to Blacktown Hospital at 6:19pm. It was determined that she had no current suicidal ideation or psychotic symptoms or evidence of a mood disorder. However, she was diagnosed with an “Adjustment Disorder with anxious Distress”. ([46]).

Use of capsicum spray

Leading Senior Constable Cashmere use the capsicum spray. His Honour summarised LSC Cashmere’s evidence as to his thinking at [134]-[135]

He [LSC Cashmere] said he then drew the capsicum spray out of the cannister which he kept on his vest. He elaborated on his reasoning process: he received the call about Ms Music, police had tried to communicate with her himself but that had not worked. He saw firsthand for himself that Constable Casey’s ‘empathetic’ attempt to communicate was unsuccessful. He himself had tried to communicate using a different tack, but that had not worked either. She had barricaded herself in the home. She had then fled as police entered the home and hidden herself (for 45 minutes). He maintained the view he held at the point of forced entry into her home that she needed to be apprehended and detained (under s 22). The unidentified officer gave her plain directions to lie on the ground. She did not comply with them. He said he was concerned that there was going to be a physical confrontation in the yard. He thought it was likely she would resist. He said he did not think that further communications would be useful. He foresaw the possibility she might jump the fence (which might cause injury).

… LSC Cashmere said he considered other means of getting hold of her. This included the use of a firearm, but that was inappropriate. He did not think a baton or taser was warranted since she did not present with a weapon. He said he thought of grabbing hold of her and throwing her to the ground, but was concerned she might have something from the shed and use that in a way that generated potential for injury against him or other police officers. Even the act of grabbing itself might cause injury to police or to Ms Music. He also said that he did not want to get into her physical space because of COVID-19. So, to LSC Cashmere, capsicum spray was most likely effective. In an outside environment, the spray would disperse immediately, facilitating police going in and grabbing hold of her.

And, at [147]:

He rejected the proposition that in spraying Ms Music, he was not concerned about s 22 or that he had sprayed Ms Music out of frustration and a desire to ‘bring this whole affair to an end’.

Issues to be decided

The way the case was presented, the issue of whether the police would be liable for damages turned on ([230]) whether:

  1. whether the power to detain under s 22 of the Mental Health Act was established and
  2. if the answer to (a) was ‘yes’ whether the police had used reasonable force.

Grounds for entry

Police relied on the Mental Health Act 2007 (NSW) s 22. That section says:

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.

This section was the subject of discussion in NSW v Talovic [2014] NSWCA 333. His Honour summarised the statement of the law in that case. He said (at [195]-[197]):

In State of New South Wales v Talovic [2014] NSWCA 333 (“Talovic”) at [135]–[141] Emmett JA (Tobias AJA agreeing) indicated that there are two ‘prerequisites’ to a police officer’s apprehension of a person under s 22:

  1. a person appears (which amounts to a subjective opinion) to the apprehending officer to be mentally ill or mentally disturbed; and
  2. the officer believes, on reasonable grounds, that:
  • it is probable that the person will attempt to kill themselves or attempt to cause serious physical harm to themselves; and
  • it would be beneficial for the person’s welfare to be dealt with in accordance with the MH Act, rather than otherwise in accordance with law.

At [162] Tobias AJA emphasised that s 22(1)(a) required a belief that it was probable that the relevant person “will” attempt to kill (or cause serious harm to) themselves. It was insufficient that the officer believed that there was a probability that a person ‘may, might, or could’ attempt to kill (or seriously harm) themselves. Basten JA (at [31]) explained that for the purposes of s 22(1)(a), the word ‘probable’ carries a special meaning. It means ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.

The appearance of a person as being ‘mentally disturbed’ is broader than the appearance of a person being ‘mentally ill’: Talovic per Basten JA at [11], per Emmett JA (Tobias AJA agreeing) at [131].

Determination – lawful entry

His honour accepted (at [242]) that it was necessary for each officer to have formed their own opinion as to whether the threshold for action under s 22 had been met. If, as alleged by the plaintiff, LSC Cashmere alone had formed the view that entry under s 22 was justified, that would not have justified action by the other constables.  His Honour held that all the police did have the necessary belief. His Honour said (at [244]-[249]):

There is little difference in the position of Constables Casey and Alo as to whether they had reasonable grounds for those beliefs. They were in the car when they learnt of the threat she had communicated to the insurance agent. Although they had learnt of the verbal threat second hand through the agent, the threat was, by its literal terms, serious, and they were also entitled to place weight upon the circumstance that a representative from an insurer was sufficiently concerned about it to call 000. The underlying circumstances, involving Ms Music’s son being in trouble with police and apparently causing his mother to incur a ruinous, if not significant, financial liability would have been enough to have tried the hardiest of souls.

What they each saw when they encountered Ms Music was, I accept, a person who was acting irrationally; including ranting and raving and the barricading of a front door. That would have diminished, in the minds of reasonable police officers, any possible notion that the verbal threat was likely to have been more than just a chance or flippant remark.

Both officers called their supervisor, LSC Cashmere, an officer of 13 years’ experience. LSC Cashmere was entitled to give weight to the observations of Ms Music’s behaviour passed on to him by Constables Alo and Casey after his arrival. Specifically, he was entitled to rely also upon what Constable Alo had said to him in the original phone call he received, which effectively conveyed the context of the threat that the Constables had received from the agent of the insurer. He referred, understandably, to the confidence he reposed in Constable Alo, who he thought was level-headed in terms of his temperament. He had the added benefit, denied to the other officers, of learning from the mobile dispatch system and was apprised that Ms Music had made a threat to kill herself, which was treated seriously as going to her mental health, in 2019. It is not altogether clear what the extent of the information was in the dispatch system that LSC Cashmere referred to and how it compared, say, to the COPS entry that developed following the incident in January 2019 (Exhibit 2).

In addition to her verbal threat to kill herself, Ms Music in short presented to LSC Cashmere as someone with a known mental health history, and who had appeared to behave erratically or irrationally to police officers whom he held confidence in.

Contrary to Ms Music’s submission, the determination of the reasonableness of each officer’s belief was to be considered at the point of entry into the home. I find that after LSC Cashmere arrived, and after the three officers conferred among themselves in their ‘scrum’, Constable Casey and, later, LSC Cashmere each spoke to Ms Music who was on the other side of the front door at around 4:46pm. In other words, she had not left her home by that stage. It is fair to say that Constable Casey adopted a pleasant and placid approach, explaining to Ms Music why he was there and what course of action was proposed. It is also fair to say that LSC Cashmere adopted a sterner approach. But neither approach placated Ms Music. It is unclear as to precisely when Ms Music fled her home, however, the loss of communication with her would reasonably have heightened the anxiety of the police officers even further.

I therefore find that both of the matters in s 22 were established.

My initial commentary on s 22

The section requires a finding that the police believed both that the person was mentally ill or mentally disturbed and it was probable that the person would attempt to kill themselves.  In this case there was much discussion about Ms Music’s statement that she was considering taking her own life and the fear that she was in an uncontrolled environment.  What was not discussed was what ‘mentally ill’ or ‘mentally disturbed’ means. 

Under the Mental Health Act a person is mentally ill (s 14) if they are:

… 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–

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

The evidence, and findings of the judge, would establish that there were reasonable grounds to believe (a), above. But to be mentally ill requires more than threatening suicide (Stuart v Kirkland-Veenstra [2009] HCA 15).  Section 22 requires a belief both the patient’s mental illness or mental disturbance and the threat of suicide.  

To be suffering from a mental illness is to be suffering from (s 4)

… 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 the following symptoms–

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

There is no suggestion that Ms Music was suffering from (a) or (b).  One might infer that police observed (e), implying a ‘severe disturbance of mood’ ((d)).  

Alternatively, police may have thought that she was mentally disordered, that is (s 15) that her:

… behaviour for the time being [was] so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

The problem is that nowhere do the police give evidence that they formed the view that she was mentally ill or mentally disordered and why her behaviour was ‘irrational’.  If a person has found out that their son has written off their car and they are liable for a sum given as $150,000 being angry and even contemplating whether taking one’s own life is a solution may not be irrational.  And tell police to ‘fuck off’ may be someone’s normal mood. 

Whilst the behaviour described may appear shocking, people are not legally required to open the door to talk to police and putting aside offences such as offensive language, telling the police to ‘go away’.  

His Honour said (at [279]) that ‘Ms Music continued to appear to be mentally disturbed’ and observers may think there would be no difficulty in police reaching that conclusion, but, as a lawyer, I am concerned that whilst the police did give evidence as to why they were concerned that Ms Music might attempt to take her own life, and why they did form the view that the force used was reasonable, they did not give evidence and the judge did not discuss whether the police formed the view – or even turned their mind to – whether she was mentally ill or mentally disturbed as required by the Act. 

Use of force

The Mental Health Act 1987 (NSW) s 81 allows police to use reasonable force when exercising their powers under s 22.  His Honour said (at [200])

Both Counsel also referred me to what was said about ‘reasonable force’ in R v Turner [1962] VR 30 at 36, which observations were followed in Woodley v Boyd [2001] NSWCA 35 per Heydon JA (Davies AJ and Foster AJA agreeing) at [37]:

“What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented …”

His Honour held that the use of force, ie the capsicum spray was unreasonable. Although great latitude was to be given to officers given the need for judgment in the ‘agony of the moment’ and the depth of their own experience the objective component that is that the force used must be ‘such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented the force used’ must be considered.  His Honour said (at 288]):

… the objective requirement exists as a check on distorted decision-making by the arresting officer in the interests of safeguarding the crucial value of protecting a citizen’s liberty. I did not understand it to be controversial that the objective requirement, in practice, means that the trier of fact deploys the construction of whether the notionally reasonable arresting police officer would regard the force used as being reasonable and the force to restrain a person as reasonably necessary.

In this case the use of force did not meet that objective test. He said (at [293]-296] and [298]):

… LSC Cashmere accepted that the only justification for the use of the spray was to avoid a violent confrontation with Ms Music that was occurring or was likely to occur.

Having regard, however, to the BWC footage of Constable Alo, in my opinion a reasonable arresting police officer in LSC Cashmere’s position could not have formed that justification in the circumstances faced by LSC Cashmere. I find that LSC Cashmere had decided that he would administer the spray as he descended down the steps from the balcony. The footage showed he was then reaching for the spray.

The circumstance that Ms Music had not complied with his direction (and/or that of another officer) to ‘get to the ground’ would not, of itself, have conveyed to a reasonable arresting officer that she was engaging, or was likely to engage, in a violent confrontation.

A fundamental difficulty for the State’s case is that I do not accept LSC Cashmere’s evidence that he went through in its entirety the thought processes he described at length in his evidence. The BWC footage powerfully suggests that he could not have had the time to go through the process. The better view is that just as he was about to step into the backyard, as he descended the stairs from the deck, he had resolved to physically restrain her whilst the opportunity presented itself to do so as quickly as possible, and he thought that the immediate use of the spray was the most appropriate way to do that…

Associated with this point is that the State did not call other witnesses to prove that Ms Music had appeared to be acting aggressively or in a way that likely presaged violence… The absence of this additional evidence (without explanation that it would not have been available) fortifies my view that Ms Music did not act in a way that could reasonably have led LSC Cashmere to apprehend that there was a significant probability that she might act violently towards the police officers if directed to submit to being detained by them.

His Honour continued (at [302] and [305]):

… when deciding what force to deploy, LSC Cashmere did not seriously turn his mind to the significance that he was dealing with an apparently mentally troubled person: he did not take any steps to ‘de-escalate’. I accept that an approach that encourages police to engage in de-escalation is qualified in the manual, by the words “where possible”. Part of de-escalation was to allow for some time to pass, to enable a person in a heightened emotional state to calm down. There is some merit in the State’s argument that attempts to communicate and try to cajole her to allow herself to be escorted to an ambulance had proved fruitless, however, the BWC footage indicates that LSC Cashmere, other than perhaps yelling at her to get to the ground, made no attempt to communicate with her. Without apparent urgency, and the apparent absence of any threat of violence Ms Music posed to police, the notionally reasonable arresting officer would have considered that Ms Music required patient and sensitive handling. I am not persuaded that the application of communication skills and an attempt to de-escalate was not “possible” in the circumstances…

I find that his approach, evaluated against the approach earmarked for mentally disturbed persons, resorted to force prematurely. His approach was confrontational. Contrary to what was argued the spray was utilised against an apparently mentally disturbed person as a first resort; not a last resort.

Other claims

The court rejected a claim of false imprisonment and also rejected claims for aggravated and exemplary damages (ie increased damages to make an example of the tortfeasor or wrong-doer).

Damages

Damages for economic losses, treatment and expenses and general damages were assessed at $24,000. These damages are paid by the State, not the individual police officer ([5]). 

Lessons learned

What this judgement would reinforce is 

  1. That when exercising the powers granted under s 20 (and s 22 for ambulance officers) it is incumbent upon everyone to have the necessary beliefs. This is important in the scenario that has been described in other posts were police ask paramedics to transport someone on the basis that the police have formed the view to detain the person under s 22.  If the ambulance officers do not think the criteria under s 20 have been met, they should decline to transport a person against that person’s will (and see Revisiting the role of police and paramedics when dealing with the mentally ill in NSW(September 14, 2019)).
  2. If police or ambulance officers do have the power to detain a person under either s 20 or s 22 then the power to use ‘reasonable force’ (s 81) is enlivened.  As this case demonstrates what is ‘reasonable’ requires an objective element. It is not ‘reasonable’ to use force to ensure compliance, or to speed up the resolution (and consider also the unfortunate position of Clare Knowland who died after being tasered by police when roaming a nursing home armed with a knife but leaning on a walking frame; R v White [2025] NSWCCA 111). 
  3. When speaking to an insurance company, and presumably other agencies such as Centrelink, no matter how frustrated you become or how unreasonable you think they are, do not suggest in jest, frustration or otherwise ‘I might as well kill myself’.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.