//
[2015] WADC 158
General information, not legal advice.
District Court of WA
2016-01-13
Mr J
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : BADRAN -v- PUBLIC TRANSPORT AUTHORITY OF WA [2015] WADC 158
Train - Transperth - Public Transport Authority Act 2003 - Failure to provide date of birth - Powers of security officers - Arrest - Obstruct, hinder, impede
Public Transport Authority Regulations 2003 reg 6(1), reg 40
Arevalo v Fallows (Unreported, WASC, Library No 920705, 17 December 1992)
Cumby v Rhodes (Unreported, WASCA, Library No 5367, 29 May 1984)
1 It is a well-known fact that when a member of the public travels on a train in Perth, as in many other places, he or she is required to have an appropriate ticket, save in exceptional circumstances. Employees or agents of the company operating trains, in this case Transperth, check the tickets of passengers from time to time.
2 On 10 November 2009, the plaintiff Mr Ali Badran (Mr Badran) took a train from Rockingham to Perth. He had purchased earlier that day a return ticket from Perth to Rockingham. It was a concessionary ticket. He was not a regular user of the train service. He had held a concession card since 2005.
3 On the journey back from Perth, in the evening, he was approached by two 'revenue officers' on the train. He produced his ticket. He was asked for his card. He provided it. The officer noticed it was expired. A conversation followed.
4 He was asked for his date of birth. He did not provide it to the officer. He said 'OK give me an infringement notice'. It is alleged that he became aggressive. He continued to decline to provide the requested information.
5 The officers took action. When the train stopped at the Esplanade Station, two further officers came on the train. These were 'transit officers', also called 'security officers'. They told Mr Badran to leave the train. He acceded, although not instantly, and alighted. The officers also left the train.
6 The two security officers, Mr Hyde and Mr Olney, stood in close proximity to Mr Badran. There was conversation on the platform. Firstly, they indicated that Mr Badran should move away from the edge of the platform, he did so. He was again asked for his date of birth. He did not provide it. There were further verbal exchanges, and gesturing. The latter can be seen on CCTV footage tendered in evidence. The former cannot be heard.
7 The officers gestured towards seating nearby. Mr Badran was talking and gesturing in an animated fashion, standing within the yellow line designating the area at the edge of the platform. The security officers were close to him and at times also gesturing. The revenue officers stood a little further away with their backs to the camera, taking no part in the exchange at this stage.
8 The security officers then grabbed Mr Badran by his arms and propelled him to a seat 3 - 4 m away. A struggle ensued. Mr Badran was handcuffed at the seat.
9 He was then searched, his pockets emptied and his property put onto the seat.
10 Further discussion whilst he was handcuffed led to his wallet being provided to an officer who obtained his driving licence.
11 Mr Badran was released and left the station. He was subsequently summonsed for offences of travelling without a valid ticket and failure to provide information when requested to the officers. He was convicted.
12 The CCTV footage records these events from the arrival of the train at the Esplanade Station.
13 On 3 August 2012 Mr Badran issued a writ against the Public Transport Authority of WA (PTA). It is common ground that the PTA operates Transperth trains, including between Perth and Rockingham.
14 In his statement of claim, filed on 19 November 2012, Mr Badran pleads as follows:
(b) obtain personal information from passengers suspected of having committed an offence under the Act;
(d) use such force as was reasonably necessary in the circumstances to arrest an offender.
(b) force that was not proportional to the suspected offence;
15 The statement of claim pleads that the arrest and breach of duty caused him damage and injury, specifically to his shoulders.
16 He claims damages, exemplary and aggravated damages.
17 The PTA admits that it designates 'security officers' pursuant to s 56(2) of the Public Transport Authority Act 2003 (the Act) and that it designates 'revenue protection' officers as authorised persons pursuant to s 56(1) of the Act. In this case the officers were employed by a third party contractor. The PTA admits that it is vicariously liable for the acts or omissions of security officers, done in the course and scope of their employment.
18 The defendant particularises the matters by which it says the arrest was lawful.
(i) Security officers and authorised persons are prescribed by section 57(1) of the Act as 'public officers' for the purposes of the Criminal Investigation (Identifying People) Act 2002 (the CIIP Act);
(ii) Security officers and authorised persons may exercise powers under Part 3 of the CIIP Act, pursuant to section 57(2) of the Act;
(iii) Under section 16(2) of the CIIP Act, a public officer may request a person's full name, date of birth, and address (personal details), as prescribed by section 57(3) of the Act and section 16(1) of the CIIP Act;
(iv) Under section 16(6) of the CIIP Act, a person commits an offence if, without reasonable excuse, they fail to provide their personal details after being requested to do so by a public officer.
(v) Security officers are authorised, pursuant to section 58(3) of the Act, to take a person into custody if they continue or repeat any act or omission that is an offence under the Act after having been warned by a security officer that to do so may result in the person being taken into custody for the offence;
(vi) Travelling on a train service without a valid ticket is an offence, pursuant to regulation 6(1) of the Public Transport Authority Regulations 2003 (the Regulations);
(vii) A ticket is not valid if a current certificate or concession card is required to be held by a passenger as a condition of the use of the ticket and that certificate or concession card is not presented on demand to an authorised person, pursuant to regulation 5 of the Regulations;
(viii) The Plaintiff was a passenger on the train service running from Rockingham to Perth on 10 November 2009;
(ix) While on the train, the Plaintiff was requested to produce his ticket by a Revenue Protection Officer;
(x) The Plaintiff produced a concession ticket and an expired healthcare card;
(xi) The Plaintiff was informed by the Revenue Protection Officer that, as his healthcare card had expired, he was not entitled to travel on a concession ticket and had committed an offence;
(xii) The Plaintiff was requested to provide his date of birth by the Revenue Protection Officer for the purpose of completing an infringement notice.
(xiii) The Plaintiff refused to provide his date of birth;
(xiv) The Revenue Protection Officer again requested the Plaintiff to provide his date of birth and advised him that it was an arrestable offence to refuse to comply;
(xv) The Plaintiff became aggressive, causing the Revenue Protection Officer to leave him alone so as to avoid an escalation of the Plaintiff's behaviour;
(xvi) The Revenue Protection Officer then contacted two security officers, who boarded the train after it pulled into the Esplanade Train Station;
(xvii) The security officers asked the Plaintiff twice to leave the train;
(xix) The security officers then advised the Plaintiff that he would be physically removed if he did not comply with the request to leave the train;
(xxi) The security officers then requested the Plaintiff's date of birth on at least two occasions;
(xxii) The Plaintiff continued to refuse to provide his date of birth after being requested to do so;
(xxii) The Plaintiff then stated: 'this is bullshit, you are not the police';
(xxiv) The Plaintiff was warned by the security officers that a failure to provide personal details was an offence;
(xxv) The Plaintiff was warned by the security officers that continuing to refuse to provide his date of birth would result in his arrest;
(xxxvi) The Plaintiff continued to refuse to provide his date of birth;
(xxvii) The Plaintiff had no reasonable excuse for refusing to provide his date of birth; and
(xxviii) The Plaintiff was then arrested by the security officers;
(d) says that if the Plaintiff's allegation is that excessive force was used by the security officers in the arrest of the Plaintiff, then this allegation is denied;
(e) says further that the security officers used reasonable force in effecting the Plaintiff's arrest.
19 The defence denies that excessive force was used and says that the officers used reasonable force in effecting the arrest.
face covering means an item of clothing, hat, helmet, mask or sunglasses, or any other thing worn by a person, that totally or partially covers the person's face;
personal details, in relation to a person, means -
(2) If an officer reasonably suspects that a person whose personal details are unknown to the officer -
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person's personal details.
(3) If an officer reasonably suspects that a personal detail given by a person in response to a request is false, the officer may request the person to produce evidence of the correctness of the detail.
(a) an officer makes a request to a person under subsection (2); or
(b) a police officer requests or requires a person to give the police officer, under another written law and for a forensic purpose, any or all of the person's personal details,
(c) to remove or adjust any face covering worn by the person; or
to enable the officer to see the person's face or verify the correctness of any personal detail, or any evidence of any personal detail, given by the person.
(4B) It is sufficient compliance with a request made under subsection (4A)(c) if only so much of the person's face covering that totally or partially covers the person's face is removed or adjusted.
(4C) If an officer makes a request to a person under this section, the officer may detain the person for a reasonable period for the purpose of the person's compliance with the request or to verify the correctness of any personal detail, or any evidence of any personal detail, given by the person.
(4) A person to whom a request is made under subsection (2), (3) or (4A) may request the officer making the request to identify himself or herself.
(5) An officer who is requested by a person to identify himself or herself must do so.
(6) A person who, without reasonable excuse, does not comply with a request made under subsection (2), (3) or (4A) commits an offence.
(7) For the purposes of subsection (6), the fact that an officer did not comply with subsection (5) as soon as practicable is a reasonable excuse.
(8) A person who, in response to a request made under subsection (2), gives any false personal details commits an offence.
(9) A person who, in response to a request made under subsection (3), produces any false evidence commits an offence.
(1) A person who is a security officer or an authorised person may investigate -
(b) an offence referred to in section 58(2) committed in the circumstances described in that provision,
and that person's office is prescribed for the purposes of the Criminal Investigation (Identifying People) Act 2002 and in particular the definition of public officer in section 3 of that Act.
(2) The person may exercise powers under the Criminal Investigation (Identifying People) Act 2002 Part 3 but only in relation to a person's personal details as defined in subsection (3).
(1) If this subsection applies because of subsection (2) and it appears to a security officer or a member of the Police Force that the offence referred to in that subsection would be likely to continue or be repeated if the offender is not apprehended, the security officer or member of the Police Force may, without warrant other than this subsection, take the offender into custody and take the offender to a police station or other place for the offender to be dealt with for the offence according to law.
(a) an offence under The Criminal Code section 74A is committed in or on Authority property;
(b) an offence under The Criminal Code section 70A is committed in respect of premises that are Authority property; or
(c) an offence under The Criminal Code section 445 is committed in respect of Authority property.
(3) If a person continues or repeats any act or omission that is an offence under this Act after having been warned by a security officer or a member of the Police Force that to do so may result in the person being taken into custody for the offence, the security officer or member of the Police ... without warrant other than this section, take the offender into custody and take the offender to a police station or other place for the offender to be dealt with for the offence according to law.
20 Thus, pursuant to s 16 CIIPA authorised officers may ask for the particulars set out in CIIPA. This section confers no power of arrest for failure to provide such particulars. The section further authorises a request for evidence of correctness of details given, if the officer reasonably suspects they may be false: s 16(3).
21 Section 16(4C) goes on to authorise the officer to detain a person for a reasonable period to enable the person to comply with a request or verify the correctness of any personal details given.
22 In this instance, there was no request for evidence in support, there was no assertion by the officers that they reasonably suspected any details to be false, or any suggestion that the officers were exercising any power under s 16(4C).
23 Section 57(2) permits the exercise of powers under CIIPA pt 3 'only in relation to a person's personal details' as defined in s 57(3). Section 16 is the entirety of pt 3 of CIIPA.
24 Regulation 6 of the Public Transport Authority Regulations 2003 (PTA Reg) provides that it is an offence to travel on a public passenger transport service without a valid ticket and an infringement notice may issue to a person committing such an offence. It carries a fine of $100.
25 Schedule 2 of the PTAA sets out in Form 1 the text of an infringement notice. To complete such a notice does not on the face of the portion given to the passenger require a date of birth. A sample of the form used by officers of the PTA was produced in evidence and is consistent with Form 1. The blue carbon copy retained by the officers requires further details, including the passenger's date of birth.
A person who obstructs, hinders, impedes or attempts to obstruct, hinder, or impeded an authorised person or a security officer in the course of his or her duties commits an offence.
28 The trial proceeded on the question of liability only.
29 Counsel for the Mr Badran opened the case on the basis that the physical handling of Mr Badran by the security officers and pushing him towards the seat, plus the force that was applied to handcuff him were all 'unjustified and unwarranted' and constituted 'an assault and battery upon the plaintiff'.
30 As can be seen from the passages from the statement of claim set out above, the claim was not so pleaded.
31 The writ was indorsed for 'damages for personal injury loss and damages' caused by 'the negligence', alternatively 'the breach of duty' by security officers employed by the defendant' and 'said security officers unlawfully assaulted the Plaintiff alternatively used force in excess of that which was reasonably required in the circumstances'.
32 At the close of the Mr Badran's case, counsel for the PTA submitted that the case had not been run within the pleadings, and that the pleaded case did not disclose any known cause of action, submitting that the case could not succeed.
33 Counsel for Mr Badran applied to amend the pleadings, to include an allegation of battery. This application was opposed. I granted leave to amend the pleadings, after hearing argument, to include a claim for damages for personal injury by reason of a battery.
34 I had concluded that the relevant evidence and the issues arising from it were clear. The issues were also plain to the PTA when it pleaded, in its defence, the circumstances rendering the alleged conduct a lawful arrest. In my view, the PTA was not prejudiced by the lack of proper pleading of the claim. Despite the deficiencies in the statement of claim, Mr Badran's case was conducted on the basis that the issue was whether the officers had the power to arrest Mr Badran and the manner in which they did so. If the arrest was not lawful, it was alleged that it constituted a battery upon Mr Badran. The case turned on whether the arrest of Mr Badran was, in the circumstances, lawful and whether he suffered injury as a consequence of unlawful and excessive action by the agents of the PTA.
35 A minute of amendment was produced and submissions followed, after which there remained inconsistencies in the statement of claim which were never resolved.
36 Pleadings are required by the rules of courts for purposes which are well-known. Both counsel at trial were senior practitioners. The rules are designed to provide identification of the issues to be tried as early as possible in proceedings. In this case, the statement of claim did not address the legal issues that were germane to the events and were run at trial. Neither did the PTA take steps to deal with the deficiencies in the pleadings, prior to trial. I concluded, from the manner in which the defence was pleaded, that the PTA was aware of the deficiencies in the claim. There was apparently some very late attempt at correspondence which was ineffective.
37 It is totally unsatisfactory to leave such a situation to lie unresolved, either by amendment or agreement between the parties, and to proceed to trial on such pleadings.
38 At the time of the PTA's application to dismiss the claim, a three day trial had been listed since 23 February 2015. The evidence of Mr Badran had been taken on the first day, witnesses had been prepared to give evidence, and five and a half years had elapsed since the incident. In my view, the interests of justice required that the court hear the evidence and resolve the issues, both factual and legal. Those involved needed the matter to be heard and the powers of arrest of 'security officers' employed by the PTA in the situation required determination. I concluded that the trial should proceed, with or without adequate pleadings.
39 Mr Badran gave evidence that on 10 November 2009, he purchased an all-day concession return ticket to Rockingham from Perth. Returning in the evening he was requested to provide his ticket which he did and his concession card which he showed the revenue officers from his wallet. It had expired. He said that he responded, 'OK, fine me if you want'. He said that they then asked for his date of birth. He said that the officers then spoke on the radio. The train arrived at the Esplanade Station where there were four of five other officers waiting and a lot of people on the platform. He said two officers got onto the train and asked him to get off. He said that he told them he would go anywhere with them and said 'just give the fine and let me go'. He said they then grabbed him, pushed him into the chair, handcuffed him and hurt his shoulder badly. They then obtained his papers, found his driver's licence, wrote down his name and address again and kept him handcuffed for 10 minutes.
40 He went to the police station the following day and reported the matter.
42 In cross-examination he accepted that he spoke to the officers on the train in an angry tone of voice. He denied that he was told he could be arrested. He said that it did not come to his mind to offer the officers his driving licence. He accepted he was asked to leave the train, he repeated that he said he would go with them. He did not accept that he was asked to sit down (on the platform), but did accept that the officers were pointing at the chair. He accepted that he was using his hands and said he saw nothing wrong with that. He did not accept that he tried to run away from the officers. He accepted that he became angry, and that he may not have been listening to what was said. He confirmed that he was asked again for his date of birth. He did not agree that he was warned that he might be arrested, he said that they said that when he was arrested.
43 He accepted that he said to the officers, 'Bullshit, you are not the police'. He said that one of them squeezed his elbow. He thought he 'saw hatred in their eyes'. He said that he was not told he was under arrest before they took hold of him. He admitted he held onto the back of the chair. He said that they 'tied him up badly', he accepted that there were two of them touching him but it 'felt like hundreds'. He said there were four or five involved in the arrest.
44 Mr Badran was an excitable witness, and in my view prone to exaggeration. I am not certain that this was out of any desire to mislead the court deliberately. Rather, his style of recounting events was to express the way things felt to him in an emotional manner, rather than in a factual manner.
45 From the CCTV footage, it is clear that in the short space of time prior to his arrest, he was urgently and constantly arguing with the officers. I find it difficult, in those circumstances, to regard him as a reliable witness as to what specifically was said to him, due to his agitated state, and the fact that it appears he was talking most of the time.
46 Mr Navdeep Singh was one of the revenue officers on the train that evening. He confirmed that Mr Badran had a ticket and an expired concession card. He said that he decided to issue an infringement notice. He asked Mr Badran for his particulars. He produced in evidence a copy of the type of infringement notice he would have used from his book, but indicated that there had been some changes since 2009. It contained, he said, boxes to be ticked and it required the date of birth of the passenger and identification details.
47 He said he had Mr Badran's concession card in his hand, and it contained his name and address. He asked several times for his date of birth. He said he tried to explain why he needed it. The passenger's response was 'send it in the mail, you have my details'. He described Mr Badran's manner as quite abrupt.
48 He took a step back and called transit officers at Esplanade on radio. He said his partner tried to explain to Mr Badran that it was an arrestable offence. He decided it was better to leave the situation to transit officers. At the time, he believed, Mr Badran was still seated.
49 He said that the train stopped, he and his partner got out of the door, and pointed to the passenger. He stepped out and held up the train by signalling with both hands in the air. A transit officer entered the train, and he heard him say something like 'you need to come out we need you to come out with us, mate', there was some other interaction which he did not hear.
50 He said they were all on the platform. A few seconds later the train left. He heard conversation. Daniel (Hyde) asked again for the date of birth explaining it was needed for the notice. Mr Badran said 'you have my details'.
51 Mr Singh said he stepped back a couple of metres away. He said Daniel (Hyde) also said that Mr Badran could be arrested if he kept refusing details. He thought that Mr Badran said 'you guys are not police'. Then 'they were near the chairs, Mr Badran was struggling, resisting arrest', and would not 'move his hands back for the cuffs'.
52 In cross-examination, he said that he did not hand an infringement notice to a passenger unless his identification had been verified. He explained that there were three copies of an infringement notice: a white copy handed to the passenger, a blue copy for internal purposes, and a pink copy that remained in the book. The date of birth and identifying details are not included on the customer copy, but they were required on the blue copy and for verifying the details. He said he definitely heard Mr Badran being told that he could be arrested, twice.
53 He said he was trained to complete the notice when there was a possible infringement. He believed that he had to verify their details, name, date of birth and address unless there was photo identification. The concession card that night did not have a photograph of Mr Badran.
54 Mr Singh was a careful witness, calm and businesslike, who clearly followed procedures. In my view he would have had difficulty hearing all that was said by Daniel Hyde, who had his back to him and Mr Badran was speaking at the same time.
55 Mr Daniel Hyde is an officer employed by PTA and has been authorised officer pursuant to s 8 of the PTTA for eight years.
56 Mr Hyde was on duty with Mr Olney on the evening. They received a call for assistance in relation to a 'ticket matter' and attended Esplanade Station. He was told that it involved a refusal to give a date of birth. Mr Olney arranged for cameras to cover the location and they were both present when the train doors opened.
57 The passenger was pointed out to them by the other officers. They asked him to leave the train. He said that the passenger appeared to ignore him, so he asked him again to step off the train. The passenger responded, 'you have my details, send it in the post'. Mr Singh had a concession card in his hand when the doors opened and handed it to him.
58 Mr Hyde asked the passenger again to step off the train and told him that he might be arrested if he did not do so. He described the passenger as being agitated from the moment he stood up and said that he 'stormed past him' to exit the train.
59 He said that when the passenger exited, he stood on the train side of the yellow line marking the edge of the platform, so he asked him to move further in, away from the edge. He also asked 'why don't you give us your date of birth?' and the passenger repeated 'send it in the post'.
60 He said the passenger made some comments about him being Australian and said he 'should be ashamed'. He asked for date of birth again for the infringement notice. He explained to the court that this was a fixed detail which cannot be changed and it used as confirmation, whereas address and name can change.
61 He said he did mention to Mr Badran that it was a requirement to give a date of birth. He said the passenger replied 'you have my details and you are not getting my date of birth'. He advised him he could be arrested and that they were entitled to ask for the date of birth. He did not say to Mr Badran he could be arrested for obstruction in so many words (ts 164).
62 Mr Hyde said that an obstruction charge is the only way they could take a person into custody and that they were instructed they could no longer arrest a person for giving false details. He went on to say that the passenger's obstruction was his evasiveness and unwillingness to give the details that were required.
63 Mr Badran said at around this time 'this is bullshit, you are not police'. He said Mr Badran was aggressive. He asked him again for his date of birth and got no reply. He said he warned him of arrest again. He said that the passenger then pretty much threw his hands up and tried to walk through them. He said they took his arms and walked him towards the seat. He said he informed him then that he was under arrest for obstruction and took hold of him to 'prevent flight'.
64 He said it was a 'passive escort' to start with, to prevent him leaving. He was not actively resisting but 'not complying with lawful directions' and they were just moving them away using limited force to arrest him. He said that near the seats Mr Badran resisted heavily and Mr Olney fell at one stage. They then applied 'hand restraints'. They overcame resistance and cuffed him behind his back.
65 Thereafter, he said Mr Olney cautioned him and he asked for full details. He said he had his wallet in his pocket and a driving licence. Mr Hyde said that Mr Badran volunteered that information. He said he obtained the wallet and asked if he could remove motor driver's licence and gave it to Mr Olney. Mr Olney ran the details through the database.
66 In cross-examination, he identified the notice to staff containing the advice in relation to their powers of arrest, from which he had deduced that they arrested for obstruction for a failure to provide details.
67 He identified a copy of that notice, which was tendered and which reads, in part:
Simply put, a person must not be arrested for refuse/false name and address, under such circumstances Transit Officer should prefer the charge of Obstruction. If you are going to deal with the matter by way of summons and the charge of refuse or false name and address can be preferred.
68 He accepted that he had power to ask for further information to verify the details of identity, but that he did not do so until after Mr Badran was arrested. He confirmed that he formed the view that the refusal to give the date of birth was an obstruction and it entitled him to arrest him.
69 He said he formed an intention to arrest when Mr Badran 'moved through us' and 'threw up hands' and made a comment 'this is bullshit you are not police' and 'moved towards the escalators'.
70 He said that the purpose of the arrest was to obtain the date of birth and verify his identity.
71 He accepted that there were times when both Mr Badran and he were both talking, and described it 'it felt like we were constantly being talked over'.
72 Andrew Charles Olney gave evidence that he was on the platform with Mr Hyde when the train arrived at the station and they got on the train. He said that Mr Badran stood up and 'stomped off' the train. He described him as uncooperative and 'annoyed that we were speaking to him'. When they were on the platform Mr Hyde said 'why not provide date of birth?' and he replied he had already given details pointing to concession card.
73 He described Mr Badran and Mr Hyde were talking whilst he was listening. Mr Hyde said he needed date of birth for an infringement notice. Mr Badran said 'no, post it'.
74 Mr Olney then said Mr Badran said 'it's bullshit, you are not police' and he said he tried to walk away from and around them. Mr Olney said he (Mr Olney) said to Mr Badran that he needed to provide the date of birth or may be arrested for obstruction. He said that Mr Hyde repeated this and there was one mention of arrest by Mr Olney and one by Mr Hyde. He thought Mr Badran then walked forwards and they took his arms to escort to the seat. Then Mr Hyde said he was under arrest. He said this all happened in a matter of 5 - 10 seconds.
75 Mr Badran resisted thrashing around with his arms and upper body. Mr Olney landed on the seat with Mr Badran on top and Mr Hyde was holding his arm. Mr Olney said when Mr Badran was walking to the seat he was trying to break free. Mr Badran did not say anything at this point. Mr Olney nearly lost his grip as Mr Badran was holding onto the handrail. He was then handcuffed behind his back. This took 5 - 10 seconds. He was still resisting until the officers had control, then he started to calm down. He said it was his decision to handcuff him when he was thrashing and resisting. Mr Badran fell on top of Mr Olney. He said they sat him up on seat and he was formally cautioned by Mr Hyde.
76 In cross-examination, he said that Mr Badran pushed past Mr Hyde and tried to walk away on several occasions. On the platform he was argumentative.
77 I have viewed carefully the CCTV on a number of occasions. It was provided both in original form and slowed to half speed.
78 It shows an interchange lasting around 30 seconds. Mr Badran appears to be arguing as he gets off the train. Mr Badran is moved inside the yellow line on the platform. He seems to start to walk around officer Olney and is stopped. He stands with the two officers and they are talking and gesticulating.
79 It shows firm body language from Mr Hyde and Mr Olney and pointing fingers and unequivocal commanding gestures by the officers towards the chairs.
80 It shows them taking hold of Mr Badran at a point when he has just started to move between them and roughly in a direction towards the seat. Immediately Mr Badran attempts to shake the officers off, followed by a concerted action by the two officers to hold Mr Badran. At this stage Mr Badran resists strongly.
81 He is then seated on the bench and is handcuffed, with difficulty. It is clear that his arms are pulled into position. Mr Badran makes this visibly a very difficult exercise.
82 Mr Badran was travelling on the train when it came to light that his concession card had expired and his ticket was not valid. In my view, from that point on, he was reluctant to cooperate with the officers, telling them 'send it in post'. Although he left the train when the security officers boarded and asked him to, I find that he was slow in doing so. I do not accept his assertions that he told the officers that he would 'go with them anywhere'. He was clearly angry and agitated in his exchanges with the officers on the platform. He agreed he was angry on the train.
83 The officers, clearly following procedures, all got off the train. When Mr Badran and the officers were on the platform, they signalled the train to depart. There were a few other passengers in the vicinity. Mr Badran's account of many people around and four to five officers awaiting them on the platform are clear exaggerations.
84 I accept that the officers indicated to Mr Badran that he should move further from the edge of the platform, by which time he was already arguing visibly with the officers. I find that from that point on Mr Badran was not listening to what was being said to him. He was talking at the officers, agitated, argumentative and refusing to give his date of birth. I do not accept that he is accurate in his recollection of what was said to him.
85 Mr Badran wanted the officers to send him a notice in the mail, and told them so. The officers intended to issue an infringement notice. For that purpose, they required more details of his identity than his name and address. I accept that Mr Hyde asked him on at least two further occasions to give them his date of birth. Neither officer asked for any further document identity. Having viewed the situation on CCTV my view is that this was probably impractical. The exchange was heated. The concession card was still in the possession of one of the officers. It did not contain a date of birth nor did it have a photograph.
86 Although there are some differences between the recollections of the officers, I accept that Mr Hyde told Mr Badran that he would be arrested if he continued not to give his date of birth. Mr Hyde was well aware of the limits to his powers. He did not say that he warned of arrest for obstruction in so many words. The request for the date of birth was a reasonable one, quite apart from the s 16 CIIPA, for the purposes of filling out the paperwork required to issue an infringement notice. I accept that Mr Hyde attempted to explain to Mr Badran that there was a reason for seeking the information. I consider his behaviour was an obstinate and continuing refusal to cooperate.
87 Mr Olney also made a request for the information. I find that Mr Olney warned Mr Badran could be arrested for obstruction. I am satisfied that Mr Badran was therefore warned of arrest both practically for his behaviour and for the specific offence of obstruction.
88 It is clear on the CCTV footage that Mr Hyde indicated by pointing with his right arm to the seat that Mr Badran should move over to it. Mr Olney also visibly indicates the location. Mr Badran took a step between the officers. Mr Hyde then told Mr Badran that he was under arrest and placed a hand on his arm. Mr Olney took Mr Badran's other arm. At this point, Mr Badran started to struggle and pull away from the officers as they moved one or two steps towards the seat. The struggle which ensued resulted in Mr Olney losing his footing. The officers then together struggled to handcuff Mr Badran.
89 In my view, having observed the behaviour of all three men, the officers use the minimal amount of force necessary once Mr Badran had commenced to struggle violently. I accept Mr Hyde's evidence that he told Mr Badran he was arresting him as they started to move towards the seat.
90 After Mr Badran was seated and handcuffed, the officers found his wallet, extracted his driver's licence and obtained the necessary information. His identity was verified by use of the radio and he was released from the restraints.
91 Both parties provided written closing submissions. Counsel for Mr Badran argued the arrest was for not providing the date of birth, for which there was no power to arrest a person, rather than for obstruction, under PTA reg 40. Counsel noted that no summons was issued for an offence under PTA reg 40. He submitted that 'a device' should not be used to circumvent a clear limitation on the powers of security officers to arrest. Comparison was drawn with the previous provisions under s 49 of the Government Railways Act 1904, which expressly contained a power of arrest in equivalent circumstances.
92 From the written opening submissions, relied upon by the PTA's counsel in closing, the meaning of the terms 'obstruct, hinder and impede' were addressed. The question of whether the officers were acting in the course of their duties was not addressed. It was merely asserted that 'in failing to provide his date of birth, and attempting to push past the security officers, the plaintiff made it more difficult for the security officers to carry out their duties and thereby obstructed, hindered, and/or impeded them or attempted to do so.
93 Counsel for Mr Badran further argued that as Mr Hyde did not intend to take Mr Badran to the police station his continued restraint amounted to false imprisonment.
94 In responding submissions, counsel for the PTA argued there was no obligation to take Mr Badran to a police station. He pointed out that to say otherwise was inconsistent with the claim that Mr Badran was detained for an excessive time. Further, he pointed to the powers under s 142 Criminal Investigation Act 2006 (CIA) where it is a requirement to release a suspect in relation to a simple offence which may be dealt with by summons. None of the conditions for continued detention provided in s 142 CIA were applicable.
95 It was argued that if there were any ambiguity in the reading of s 56(3) PTAA it should be interpreted in the light of s 142 CIA and the purposes of the s 142 CIA and the PTAA. Section 142 CIA is a specific provision for the release of arrested persons.
96 My reading of Mr Badran's submission is that an arrest under s 58(3) is required to be for the purpose of taking the arrested person to a police station. As Mr Hyde had no such intention, it appears to be argued either the conduct of the officers was unlawful or the continued detention was unlawful.
97 I will deal with this aspect of the argument immediately. Firstly, it appears to be an 'afterthought' in the case. Secondly, there is no justification in the language of the section to support this argument as to intent, or purpose. The preconditions to arrest are repeated conduct and warning, the consequence is that an officer 'may' arrest a person and 'may' take a person to a police station.
98 It is abundantly clear that this is a power conferred in certain circumstances, not a requirement. It does not import a precondition of an intention.
99 Mr Badran travelled without a valid ticket, refused to give his date of birth when requested, got off the train at Esplanade station, argued strenuously with officers on the platform and continued to fail to give his date of birth.
100 The CCTV footage shows, and I find, that he was standing arguing and waving his arm or arms about. He offered no actual violence but clearly was not listening. He continued to refuse his date of birth. He was warned he might be arrested for his failure and for obstruction if he continued to do so. He did not provide it. At the point at which the officers laid hands on him and arrested him, Mr Badran had just commenced to move between the officers. I do not accept that at this point he was showing any indication of cooperation. The officers' reading of his action as an attempt to leave was not unreasonable. He immediately began to pull away and struggle.
101 The situation could have been defused by Mr Badran, had he produced his driving licence, either on the train or on the platform. This did not enter his mind. The officers were engaged in discussion with Mr Badran. I have found they gave repeated opportunities to Mr Badran to provide his date of birth. He just was not listening.
102 To arrest pursuant to s 58(3) of the PTAA requires a continuing or repeated offence under the PTAA and a warning of the person by the officer that he might be arrested for the offence if he persists.
103 'Obstruction' is not defined of the purposes of the PTA Regulations. Under the Criminal Code and formerly s 20 Police Act 1893, the term is and was used and had been the subject of judicial consideration. PTA reg 40 is not limited to 'obstruction' but includes 'hinder' or 'impede'. To hinder is said to be 'to make the officer's job more difficult': Cumby v Rhodes (Unreported, WASCA, Library No 5367, 29 May 1984). Throughout this trial the word 'obstruction' has been used to encompass behaviour contrary to PTA reg 40.
104 Owen J in Arevalo v Fallows (Unreported, WASC, Library No 920705, 17 December 1992) considered the principles involved in hindering the police:
Hindering the Police - Legal Principles
The legal principles are not in dispute. However, what is in dispute is the application of the facts of this case to those principles. Nonetheless I should recite very briefly what I understand the legal principles to be.
(i) that the person against whom the offence was committed was a member of the police force;
(ii) that at the time of the alleged offences the police officer was acting in the execution of his duty, and
(iii) that the conduct complained of disturbed, hindered or resisted the police officer in the execution of that duty: see Cumby & Ors v Rhodes, unreported, SCt of WA, Library No 5367, 29 May 1984 at 13; Matich v Godfrey, unreported, SCt of WA, Library No 920026, 13 February 1992 at 11.
105 Arevalo v Fallows concerned a different scenario, where a suspect was questioned and provided misleading information, I do not read par 4 quoted above as applicable to this current case.
106 The offence of obstruct, hinder, impede in PTA reg 40 contains:
(1) the conduct of the accused - is it obstructing, hindering or impeding?
(2) the person affected is an authorised person or security officer; and
(3) the hindering etc, is 'in the course of the officer's duties'.
107 The proper course that night in relation to Mr Badran was to issue, respectively, an infringement notice and/or a summons, for the offences he had committed. Thus, the duty of the officers was to take the necessary steps to issue these processes. The officers had insufficient information to do so. Evidence was given that they were trained to obtain the date of birth in order to check description and identity of the person being questioned. There was no challenge to that evidence. Mr Badran, in arguing on the platform and persisting in his refusal, clearly hindered the officers.
108 The officers were acting within the course of their duties in seeking to obtain the date of birth. It was part of the task involved in issuing a notice of infringement. It is ironic that Mr Badran had invited them to do just that, but declined to cooperate in the process.
109 It would be disingenuous to purport to arrest, by asserting an obstruction, where there was no power to arrest for the initial offending conduct or for the subsequent failure to provide information, if the situation were simply that particulars had been requested and refused. This situation involved more than that.
110 Having observed the actions of the three men on CCTV footage on a number of occasions, I do not consider that the officers acted excessively once Mr Badran started to struggle. They were attempting to have him sit down, when he struggled violently. They did not throw him to the ground, for example or hold him for longer than it took to apply handcuffs, after which he ceased to struggle. Mr Badran appears to be of a solid physique and there was no indication that he was in any way injured or frail from his appearance or conduct.
111 I find there was no use of excessive or unreasonable force in the arrest and restraint: s 231, s 233 of the Criminal Code provide it is lawful to use reasonable force in making an arrest, preventing avoidance or flight.
112 Shortly after he was handcuffed, his identifying particulars were confirmed and he was released. He was in my opinion detained for the minimum necessary period.
113 In terms of the pleadings, par 6, the claim that excessive or disproportionate force has not been made out. The allegations of 'violence, malice, cruelty and contumelious disregard for the plaintiff's rights' are not supported by the evidence. As amended, the allegation, par 8, of battery and false imprisonment has not been established.
Arevalo
Fallows