Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : BADRAN -v- PUBLIC TRANSPORT AUTHORITY OF WA [2015] WADC 158

Statute - Interpretation - Appellant travelling on train without valid ticket - Refused to provide date of birth to security officers - Date of birth required to issue infringement notice - Whether security officers had power to arrest appellant - Public Transport Authority Act 2003 (WA), s 57, s 58(3) - Whether refusal to give date of birth 'obstructs, hinders, impedes' security officer in course of his or her duties - Public Transport Authority Regulations 2003 (WA), reg 40

Public Transport Authority Act 2003 (WA), s 57, s 58(3)

Public Transport Authority Regulations 2003 (WA), reg 40

Criminal Investigation (Identifying People) Act 2002 (WA), s 16

Bombala Council v Smith [2005] NSWSC 382

Cavanagh v Galkowski (1979) 20 SASR 322

Darcy v State of New South Wales [2011] NSWCA 413

Dibble v Ingleton [1972] 1 QB 480

Leeder v The State of Western Australia [2008] WASCA 192

Leonard v Morris (1975) 10 SASR 528

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359

Rice v Connolly [1966] 2 QB 414

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Tankey v Smith (1981) 36 ACTR 19

Towse v Bradley (1985) 14 A Crim R 408

Virani v The Queen (2011) BCSC 1032

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Braddock DCJ who dismissed the appellant's action against the respondent for damages (including aggravated damages) for an alleged breach by security officers employed by the respondent of their statutory power of arrest, alternatively breach of a duty owed by the respondent to the appellant to use reasonable force by using excessive force, alternatively, of false imprisonment and battery.

2 On 10 November 2009, the appellant took a train from Rockingham to Perth. Earlier in the day he had purchased a return concessionary ticket from Perth to Rockingham. The appellant had held a concession card since 2005.

3 On the return journey to Rockingham that evening the appellant was approached on the train by two of the respondent's revenue officers and asked to produce his ticket and concession card. The concession card had expired. The concession card contained the appellant's name and address but not his date of birth. One of the officers, Mr Singh, asked the appellant for his date of birth. The appellant did not provide it despite several requests. Mr Singh said that he needed it to issue an infringement notice to the appellant for travelling without a valid ticket. The appellant responded that Mr Singh had his details and to send the infringement notice in the mail.

4 Mr Singh then called security officers at the Esplanade station by radio and when the train stopped at that station two of the respondent's security officers, Mr Hyde and Mr Olney, were waiting for it. One of the revenue officers identified the appellant as the passenger concerned and the security officers told the appellant to leave the train. After several requests, the appellant did so.

5 On the station platform, Mr Hyde again asked the appellant for his date of birth. He told the appellant that he was required to provide it and he could be arrested if he did not. The appellant refused to provide it. That exchange was repeated. Mr Olney also asked the appellant for his birth date and told the appellant that he could be arrested for obstruction. Mr Hyde indicated to the appellant to move to a seat some 3 to 4 m away but the appellant instead took a step between Mr Hyde and Mr Olney. Mr Hyde and Mr Olney took the appellant by the arms and moved him towards the seat. As they did so, Mr Hyde told the appellant that he was under arrest. Near the seat, the appellant resisted strongly and a scuffle ensued. The appellant's resistance was overcome and he was then handcuffed. After the appellant was placed on the seat, the officers found his wallet and extracted his driver's licence, from which his birth date was obtained.

6 The appellant was then released and left the station. He was subsequently convicted of offences of travelling without a valid ticket and failing to provide information when requested to do so.

7 On 3 August 2012, the appellant commenced proceedings against the respondent. He alleged that the security officers (1) 'breached their statutory power to arrest, alternatively, breached the duty owed to the [appellant] to only use force that was reasonable in the circumstances in that [they] used ... excessive force and ... force that was not proportional to the suspected offence'; and (2) in exercising the power of arrest, acted 'with violence, malice, cruelty and with contumelious disregard for the [appellant's] rights.' The appellant alleged that he had suffered personal injury and claimed compensatory, aggravated and exemplary damages.

8 During the course of the trial, the primary judge allowed an amendment to the statement of claim to plead battery and false imprisonment.

9 The respondent admitted that it was vicariously liable for the acts or omissions of the security officers but contended that the arrest of the appellant was lawful and denied that excessive force was used.

10 The trial was limited to the issue of liability.

11 The primary judge found that the appellant had travelled without a valid ticket and had refused repeated requests by the security officers to provide his date of birth [99]. Her Honour also found that the appellant had been warned that he might be arrested for his failure to do so and for obstruction [100]. The power to arrest was found by her Honour to be contained in s 58(3) of the Public Transport Authority Act 2003 (WA) which provided, in effect, that a person may be arrested if they continued or repeated any act or omission that was an offence under that Act after being warned by a security officer or police officer that to do so may lead to their arrest.

12 The primary judge found that in this case the relevant offence was a contravention of reg 40 of the Public Transport Authority Regulations 2003 (WA), which provides, in effect, that a person who 'obstructs, hinders or impedes' a security officer in the course of his or her duties commits an offence. The primary judge found that 'hinders' includes 'to make the officer's job more difficult' [103]. The duty of the security officers on this occasion was to take the necessary steps to issue an infringement notice or summons for the offences the appellant had committed. They had insufficient information to do so in that they required the birthdate of the appellant to check his identity. Ascertaining the offender's birthdate was part of the task involved in issuing an infringement notice. Her Honour concluded that in arguing persistently with the security officers and continuing to refuse to provide his birthdate, the appellant hindered them in the course of their duties [107], [108], [109(4)]. The security officers were therefore entitled to arrest him under s 58(3) of the Public Transport Authority Act. Accordingly, there had been no assault or civil battery.

13 The appellant's contention that the transit officers had used excessive or unreasonable force was rejected. In making that finding, her Honour had regard to CCTV footage of the incident which had been admitted into evidence [110].

14 In respect of the allegation of false imprisonment, her Honour noted that shortly after the appellant was handcuffed his identifying particulars were confirmed and he was released. She found that the appellant had not been detained for longer than the minimum period necessary [112].

15 Her Honour concluded that none of the appellant's causes of action had been made out and dismissed the claim.

16 The five grounds of appeal can be sufficiently summarised as follows:

1. The trial judge erred in law in holding that the relevant legislative framework included s 16(4C) of the Criminal Investigation (Identifying People) Act 2002 (WA) when that section was not enacted at the time the appellant was taken into custody.
2. The trial judge erred in law in finding that the appellant's arrest was authorised by s 58(3) of the Public Transport Authority Act.
3. The trial judge erred in law and fact in finding that a warning sufficient to enliven the power of arrest under s 58(3) had been communicated to the appellant.
4. The trial judge erred in law in failing to provide any or adequate reasons for dismissing the appellant's claim for false imprisonment.
5. The trial judge erred in law and fact finding that the officers had a power to arrest the appellant for obstruction in circumstances where there was no power to arrest the appellant for refusing to provide his date of birth.

17 It is convenient to start with grounds 2 and 5 of the grounds of appeal.

Grounds 2 and 5: authority to arrest the appellant

18 The substantive question raised by these grounds of appeal is whether the security officers were entitled to arrest the appellant under s 58(3) of the Public Transport Authority Act. It is appropriate at the outset to set out the relevant legislative framework.

19 Regulation 6 of the Public Transport Authority Regulations provides that it is an offence to travel on a public passenger transport service without a valid ticket. An infringement notice in the prescribed form may be issued to a person who commits such an offence. It was not in issue that the train on which the appellant was travelling was a public passenger transport service within the meaning of that regulation. Nor was it in issue that the appellant was travelling without a valid ticket.

20 Pursuant to reg 45, the prescribed form of infringement notice was form 1 in sch 2 of the Public Transport Authority Regulations. The prescribed form contained provision for the insertion of the full name and address of the alleged offender, but not for the date of birth. There was evidence, however, that the respondent required security officers to obtain the date of birth of a person to whom an infringement notice was to be issued, in order to confirm their identity, and to complete that information on the respondent's copy of the infringement notice.

21 The authority of security officers to request a person to provide their personal details is contained in s 57 of the Public Transport Authority Act, which provides, relevantly, as follows:

Obtaining details of certain offenders

(1) A person who is a security officer or an authorised person may investigate -

(a) an offence against this Act; or

(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).

(3) In subsection (2) -

personal details means -

(a) the person's full name;

(b) the person's date of birth;

(c) the address of where the person is living;

(d) the address of where the person usually lives.

22 The relevant powers under the Criminal Investigation (Identifying People) Act are contained in s 16(2), as follows:

(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.

23 Under the Criminal Investigation (Identifying People) Act, a person who, without reasonable excuse, does not comply with such a request or who gives any false personal details, commits an offence: s 16(6) and (8). There is no power of arrest under that Act for failing to give the personal details requested.

24 In the present case, the power of the security officers to arrest the appellant was said to arise under s 58(3) of the Public Transport Authority Act which provides, relevantly:

(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 ... that to do so may result in the person being taken into custody for the offence, the security officer ... may, 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.

25 The offence the appellant was alleged to have committed under the Public Transport Authority Act which enlivened the power of arrest pursuant to s 58(3) was an offence under reg 40 of the Public Transport Authority Regulations. Regulation 40 provides, relevantly:

A person who obstructs, hinders, impedes or attempts to obstruct, hinder, or impede an authorised person or a security officer in the course of his or her duties commits an offence.

1. the duties of security officers included obtaining the information necessary to issue infringement notices for offences committed under the Public Transport Authority Act;
2. the information they were required to obtain included the birthdate of any person who was alleged to have committed an offence;

1. the appellant had refused to provide his birthdate;

1. by continuing to refuse to provide his date of birth the appellant obstructed, hindered or impeded the security officers in the course of their duties, contrary to reg 40 of the Public Transport Authority Regulations;
2. the appellant had continued to refuse to provide his birthdate after he had been warned by the security officers that his refusal to do so may result in his arrest; and
3. the subsequent arrest of the appellant was therefore lawful under s 58(3) of the Public Transport Authority Act.

27 It was submitted on behalf of the appellant that in refusing or failing to provide his birthdate the appellant did not 'obstruct, hinder [or] impede' the security officers in the course of their duties within the meaning of reg 40 of the Public Transport Authority Regulations and accordingly no offence had been committed that could enliven the power to arrest him under s 58(3) of the Public Transport Authority Act. A mere refusal or failure to provide his birthdate when asked to do so was not sufficient to establish the offence.

28 The natural and ordinary meaning of the term 'obstruct' comprehends, at least ordinarily, the taking of some positive step which impedes the relevant thing rather than a mere failure to take steps which would facilitate or advance an outcome. The Macquarie Dictionary defines the term 'obstruct' as follows:

1. to block or close up, or make difficult of passage, with obstacles, as a way, road, channel, or the like.

2. to interrupt, make difficult, or oppose the passage, progress, course, etc., of.

3. to come in the way of or shut out (a view, etc.).

The Oxford English Dictionary relevantly defines the term as follows:

1. trans. To block or impede passage along or through (an opening, thoroughfare, waterway, etc.); to place or be an obstacle in; to render impassable or difficult of passage.

...

2. trans.a. To prevent, impede, hinder, or retard the motion, passage, or progress of; to prevent or impede (a physical action or movement).

...

3. trans. To impede, stand in the way of, or retard the progress or course of (proceedings, a plan, an intention, etc.); (Law) to commit the offence of intentionally hindering (due legal process, a police officer in his inquiries, etc.)

29 The terms 'hinder' and 'impede' have similar meanings.

30 The question of whether a failure or refusal to answer questions may constitute obstructing or hindering a public officer in the course of his or her duties has arisen in other statutory contexts. Recognising, of course, that the statutory provisions in those cases were different to the present case, they nevertheless provide some assistance.

31 Legal authorities dealing with offences of obstruction commonly refer to something which makes it more difficult for the relevant public officer to carry out his or her duties. An early example of this formulation appears in Hinchliffe v Sheldon [1955] 1 WLR 1207. In that case Hinchliffe was charged with wilfully obstructing a police officer acting in the execution of his duty. Hinchcliffe's parents operated a licensed hotel. As Hinchcliffe arrived late one night, police officers were about to exercise their statutory power to enter the hotel for the purpose of detecting offences against liquor licensing legislation. He sounded a verbal alarm that police were outside. In other words, Hinchliffe was not merely failing to assist police, but rather did something - shouting a warning to his parents - which made it more difficult for police to carry out their duties. Lord Goddard CJ, with whom other members of the court agreed, concluded:

[T]he police, in the execution of their duty, intended to get into this hotel and that they wanted to get in there before anybody in the house had an opportunity of putting things away. If the police knocked at the door and the licensee did not open it for several minutes, the justices could have found that the licensee was obstructing the police. Obstructing, for the present purpose, means making it more difficult for the police to carry out their duties. It is obvious that the defendant here was detaining the police by giving a warning; he was making it more difficult for the police to get certain entry into the premises ... (1210). (emphasis added)

32 In Rice v Connolly [1966] 2 QB 414, Rice was charged with wilfully obstructing a police constable in the execution of his duty. The police constable saw Rice acting in a way he regarded as suspicious and asked Rice for his full name and address. Rice refused to provide this information, and refused to accompany police to a police box to confirm his identity. Lord Parker CJ (at 419) held the that word 'obstruct' under the relevant legislation meant 'the doing of any act which makes it more difficult for the police to carry out their duty', which description he took from Hinchliffe. Although he defined the term by reference to the 'doing of any act', Lord Parker found that, because Rice's conduct was making it more difficult for police to carry out their duties, obstruction was established. The remaining question was whether the obstruction was 'wilful'. Lord Parker held that 'wilful' in that context not only meant intentional, but something done without lawful excuse. The question was whether Rice had a lawful excuse for refusing to answer questions put to him. Accepting that the provision of false information would undoubtedly be an obstruction, Lord Parker said:

In my judgment there is all the difference in the world between deliberately telling a false story - something which on no view a citizen has a right to do - and preserving silence or refusing to answer - something which he has every right to do. Accordingly, in my judgment, looked upon in that perfectly general way, it was not shown that the refusal of the defendant to answer the questions or to accompany the police officer in the first instance to the police box was an obstruction without lawful excuse (420).

In order to uphold this conviction it appears to me that one has to assent to the proposition that where a citizen is acting merely within his legal rights, he is thereby committing a criminal offence. Nor can I see that the manner in which he does it can make any difference whatsoever ... (420 - 421).

34 James J agreed with Lord Parker's reasons, but added that:

I would not go so far as to say that there may not be circumstances in which the manner of a person together with his silence could amount to an obstruction within the section; whether it does remains to be decided in any case that happens hereafter, not in this case, in which it has not been argued (421).

35 The effect of the decision in Rice was considered in Dibble v Ingleton [1972] 1 QB 480. In that case the drinking of whiskey after being required to provide a breath test was found to constitute obstruction. Bridge J said:

For my part I would draw a clear distinction between a refusal to act, on the one hand, and the doing of some positive act on the other. In a case, as in [Rice], where the obstruction alleged consists of a refusal by the defendant to do the act which the police constable has asked him to do - to give information, it might be, or to give assistance to the police constable - one can see readily the soundness of the principle, if I may say so with respect, applied in [Rice], that such a refusal to act cannot amount to a wilful obstruction under section 51 unless the law imposes upon the person concerned some obligation in the circumstances to act in the manner requested by the police officer.

On the other hand, I can see no basis in principle or in any authority which has been cited for saying that where the obstruction consists of a positive act, it must be unlawful independently of its operation as an obstruction of a police constable under section 51. If the act relied upon as an obstruction had to be shown to be an offence independently of its effect as an obstruction, it is difficult to see what use there would be in the provisions of section 51 of the Police Act 1964 (488). (emphasis added)

The other members of the court agreed, with Lord Widgery CJ particularly emphasising the distinction between obstruction which is alleged to consist of a default, and obstruction which is alleged to consist of a positive act (488 - 489).

36 Turning to Australian cases, in Cavanagh v Galkowski (1979) 20 SASR 322, the appellant was found seated in his car on a road verge with the doors locked and the windows wound up. When asked by a police officer if he had a driver's licence, the appellant placed a driver's licence against the window of the car but did not reply when asked if he was the person named in the licence. Police eventually forced entry into the car and the appellant was charged with (a) failing to truly answer questions put to him by a member of the police force for the purpose of ascertaining his name and place of residence, contrary to the Road Traffic Act 1961-1976 (SA), and (b) hindering a member of the police force in the execution of his duty, namely whilst making enquiries as to the name and address of a person apparently in charge of a motor vehicle, contrary to the Police Offences Act 1953-1978 (SA). The magistrate found the first charge proved but convicted the appellant only on the charge of hindering police. On appeal, the conviction on the charge of hindering police was quashed (the appellant was, however, convicted on the first charge). It was held (at (326)) that declining to answer questions did not, of itself, constitute hindering police; something more than 'passive indifference' was required to constitute the offence.

37 In Tankey v Smith (1981) 36 ACTR 19, the appellant was charged with an offence under s 64(1) of the Australian Federal Police Act 1979 (Cth). Under that provision it was, relevantly, an offence to 'assault, resist, obstruct or hinder' a federal police officer in the execution of his duty. The appellant was questioned by a police officer after a motor vehicle accident as to who was driving the vehicle. He falsely stated that he had been asleep and did not know. He was convicted of the offence and an appeal against his conviction was dismissed. It was held that to tell a lie in answer to a question designed to elicit information which a police officer had a duty to elicit was to obstruct the police officer in the course of his duty. By way of obiter, Blackburn CJ observed (at (21)) that the appellant would not have been guilty of the offence had he refused or otherwise failed to give an answer to the question.

38 In Arevalo v Fallows (unreported, WASC Library No 920705, 17 December 1992), the appellant was charged under s 20 of the Police Act 1892 (WA) with hindering a police officer in the course of his duty. Under that provision it was, relevantly, an offence to 'disturb, hinder, or resist any member of the Police Force in the execution of his duty'. The appellant was questioned by police about a motor vehicle that belonged to a finance company and had been traced into the possession of the appellant. The appellant was found to have lied to police that he had sold the vehicle and was convicted of the offence. The appellant appealed against his conviction. In the course of his reasons on the appeal, Owen J set out what he considered to be the relevant legal principles applicable to an offence under s 20 of the Police Act. Relevantly for present purposes, his Honour found, following Tankey v Smith, that a refusal or failure to answer questions was not sufficient to constitute the offence of hindering police, but that to tell a lie in answer to a question designed to elicit information the police officer has a duty to elicit would, in the ordinary course, be to obstruct the police officer in the course of his duty. Owen J found that the magistrate had not erred in finding that the appellant had lied to police and dismissed the appeal.

39 In Leonard v Morris (1975) 10 SASR 528, the relevant Act provided that any person who 'hinders [a term defined to include 'disturbs'] or resists any member of the police force in the execution of his duty shall be guilty of an offence'. The case was principally concerned with the fault element of the offence. However, in considering the physical element of 'hindering', Bray CJ observed:

With regard to the actus reus which constitutes hindering I accept it that, while some overt act is required and mere inaction cannot amount to hindering, any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section. (530-531) (emphasis added)(citation omitted)

Similarly, Walters J thought that the term 'hindering' appearing in this context involved some 'positive and active conduct' (535).

40 We were referred by the respondent to two other Australian cases, Towse v Bradley (1985) 14 A Crim R 408 and Bombala Council v Smith [2005] NSWSC 382, and a Canadian case, Virani v The Queen (2011) BCSC 1032. Those cases, however, concerned quite different circumstances, involving physical obstruction of the authority in the execution of their duty.

41 In Towse, the appellant had persistently refused a lawful request by a police officer to move into another room to facilitate the execution of a search warrant in the room she was occupying. She was convicted of hindering the police in the execution of their duty. Blackburn CJ dismissed an appeal against the conviction, finding that the appellant had been rightly convicted. His Honour went on to say:

I wish to guard against the inference that my conclusion in this case contravenes the accepted principle that mere inaction - doing or saying nothing at all - does not amount to hindrance under statutory provisions such as the one in question here. That principle is of course correct. (412)

42 In Bombala Council, the appellant had been charged with hindering or obstructing an inspector in spraying noxious weeds under the Noxious Weeds Act 1993 (NSW) by failing to remove stock from paddocks to enable the spraying to take place. The complaint was dismissed by a magistrate. An appeal against that decision was allowed and a new trial ordered.

43 Both Towse and Bombala Council concerned a different situation from the present case. The obstruction or hindering alleged in those cases did not involve a mere failure to provide information. Rather, the alleged offenders had placed themselves or their cattle in a position which impeded the relevant officers in the performance of their duty. There is an obvious difference between refusing to provide requested information to an officer and, in effect, standing and blocking his or her way.

44 In Virani, the appellant had refused to produce a ticket when requested by transit officers on a skytrain to do so. He refused their lawful request that he get off the train, persistently challenged their authority, and sought to exacerbate the situation by falsely shouting out to other passengers on the crowded train that the officers had assaulted him, with the intention of hindering the officers' efforts to remove him from the train. He was convicted of wilfully obstructing the officers and an appeal against the conviction was dismissed. The obstruction was constituted, not merely by the refusal to produce a ticket, but the other conduct in which Virani had engaged.

45 It is not necessary and nor is it appropriate to attempt to define the metes or bounds of what may constitute obstructing, hindering or impeding an authorised person or security officer within the meaning of reg 40 of the Public Transport Authority Regulations. But, in our opinion, the failure or refusal of the appellant to give his birthdate did not amount to obstructing, hindering or impeding the security officers within the meaning of that regulation. Something more than a failure or refusal to give the information was required.

46 The approach reflected in the Australian cases to which we have referred is to regard the concept of 'obstruction' or cognate terms as requiring more than a refusal to answer questions where the absence of an answer makes a public officers duty more difficult to perform. Consistently with the ordinary and natural meaning of the verb 'obstruct', something more is required than a failure to provide requested information which, if provided, would assist a public officer in the performance of his or her duty. That is so whether or not other legislation creates an obligation to assist.

47 That Australian approach is preferable to that which was adopted in some of the English cases to which we have referred, which implied a requirement that the conduct be engaged in 'without lawful excuse' from the word 'wilful'. The term 'wilful' does not appear in the provisions with which we are concerned, and the ordinary meaning of that term does not ordinarily encompass the absence of lawful excuse. Further, it will often be difficult, where privilege against self-incrimination does not apply because the requested information does not tend to incriminate the person from whom it is requested, to identify a legal right, extending beyond the absence of an obligation to assist police, which may found a 'lawful excuse'.

48 The primary judge's finding in this case was primarily based on the appellant's refusal to provide his date of birth when requested to do so. We do not doubt that his refusal to do so made it more difficult for security officers to perform their duty by issuing an infringement notice. They required that information to identify the appellant and be in a position to give evidence, if necessary, that the appellant was the person who committed the relevant offence. However, a mere failure to provide that requested information did not involve the appellant obstructing the security officers in the performance of their duties.

49 The provisions of the Criminal Investigation (Identifying People) Act which create an offence when a person fails to give a security officer personal details (which may include his or her date of birth) do not affect this conclusion. Section 16 of that Act provides the consequences of a failure to comply with a request for personal details. Those consequences do not involve arrest by a security officer. To the extent that the appellant was obliged to assist the security officers by providing requested information, the duty arose under the Criminal Investigation (Identifying People) Act rather than the Public Transport Authority Act. Failure to provide that information was an offence against s 16 of the former Act, but was not an offence against the latter Act. Provision for a separate offence in s 16 did not make the appellant's failure to provide the requested personal details an obstruction, hindering or impeding for the purposes of reg 40 of the Public Transport Authority Regulations. The power of arrest which s 58(3) of the Public Transport Authority Act conferred on security officers in relation to 'an offence under this Act' was not engaged.

50 In this case, the finding of the primary judge that 'in arguing on the platform and persisting in his refusal [to provide his birthdate], [the appellant] clearly hindered the officers' in the course of their duties was, in the circumstances, no more than a finding that the hindering consisted of refusing to give his date of birth. It is evident that the 'arguing' involved the appellant's persistent, and perhaps forcefully expressed, refusal to give his birthdate. It does not relevantly add anything to the persistent refusal to provide his birthdate.

51 In our opinion, the primary judge erred in finding that the appellant had hindered, obstructed or impeded the security officers in the course of their duties, within the meaning of reg 40. It follows that her Honour was in error in finding that the power of arrest under s 58(3) of the Public Transport Authority Act had been enlivened.

52 We would uphold these grounds of appeal. It follows that the appeal should be allowed and the decision of the primary judge set aside.

53 In light of that finding, the other grounds of appeal can be dealt with relatively briefly.

Ground 1: error in setting out legislative framework

54 There is no substance in this ground. In her reasons for decision the primary judge set out, under the heading 'The Legal Framework', the legislation that she considered relevant to the determination of the appellant's claim. It included s 16 of the Criminal Investigation (Identifying People) Act 2002 (WA). In setting it out, her Honour included s 16(4A), (4B) and (4C), which at the time of the relevant events did not form part of s 16. They came into force subsequently. Their inclusion was an error. However, her Honour did not rely on any of those provisions. The only one of those provisions that could possibly have been relevant to the facts of the case was s 16(4C) and her Honour expressly noted that the respondent did not rely on that section.

55 We do not understand, much less accept, the appellant's submission that the primary judge's mistaken belief that s 16(4C) was in force 'would have impacted upon Her Honour's findings both in relation to whether the arrest under s 58(3) of the PTAA was justified and in relation to whether the continued detention of the Appellant after his arrest to verify his personal details was justified.' Her Honour expressly excluded consideration of s 16(4C) and there is no reason to believe that it played any part in the decision to which she came.

56 Section 58(3) of the Public Transport Authority Act requires that a person be warned by a security officer before the power of the security officer may be exercised. The appellant contends that the primary judge erred in finding that no such warning had been given.

57 The appellant challenges the finding that a warning was given on two bases.

58 First, the appellant contends that Mr Hyde's warning (to the effect that the appellant may be arrested if he did not provide his date of birth) did not identify the offence against the Public Transport Authority Act which the appellant's conduct was said to constitute. The appellant says that it was not, therefore, a warning for the purposes of s 58(3) of that Act. The respondent accepts that Mr Hyde did not specify the offence for which the appellant may be arrested, but contends that he was not required to do so.

59 The appellant submitted that his arrest was not authorised because the arresting officer did not tell him that his refusal to provide his date of birth constituted an offence under reg 40 of the Public Transport Authority Regulations. Rather, the appellant says that he was simply told that he may be arrested if he continued to refuse to provide his date of birth. It was submitted that in order to enliven the power of arrest it was necessary that the person be warned that any continuation or repetition of the offence may result in their arrest.

60 That submission reflects a misunderstanding of s 58(3) of the Public Transport Authority Act. The power of arrest will be enlivened under s 58(3) if:

1. a person has committed or repeated an act or omission that is an offence under the Public Transport Authority Act: and
2. before doing so, the person has been warned by a security officer that 'to do so' may result in the person being taken into custody for the offence.

61 The words 'to do so' relate back to the earlier phrase 'an act or omission that is an offence under this Act'. The warning relates to the act or omission rather than the section of the Act which creates the offence. The second reference to 'the offence' is, in this context, to be understood as a reference to the act or omission which constitutes the offence. There is no requirement that in giving such a warning the security officer must identify for the person the particular offence constituted by the act or omission. All that must be identified is the act or omission that constitutes the offence.

62 If the continued refusal to provide his date of birth did (contrary to our findings) constitute the offence of obstruction, then Mr Hyde's warning would have been adequate. For these reasons, we reject the appellant's submission to the contrary.

63 Secondly, the appellant challenges the primary judge's finding that Mr Olney gave a sufficient warning. The primary judge found as a fact that the appellant had been warned by Mr Olney that he might be arrested for obstruction if he continued to refuse to provide his date of birth [87]. The appellant challenges that finding.

64 Contrary to the assertion in the ground of appeal, the issue is not one of law but solely of fact. The essence of the ground is that the finding of the primary judge was against the weight of the evidence. The principles relevant to such a challenge are well known.

65 An appellant who appeals against a trial judge's findings of fact must do more than show that an alternative finding was available on the facts. The appellant must show that a factual error was made by the trial judge: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359, 369; Leeder v The State of Western Australia [2008] WASCA 192 [84]. An appellate court should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences': Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].

66 The evidence of Mr Hyde was that after the appellant got off the train, Mr Hyde told him to move away from the yellow line on the edge of the platform. Mr Hyde then said to the appellant 'Why are you not providing your date of birth?' The appellant said: 'You've got my details. Send the infringement in the post.' After a brief exchange, and telling the appellant that he must provide his date of birth and may be arrested if he did not, Mr Hyde again asked the appellant for his date of birth. Mr Hyde had told the appellant: 'If you do not provide your date of birth you may be placed under arrest'. The appellant responded: 'This is bullshit, you're not police.' Mr Hyde again told the appellant that he must provide his date of birth or be placed under arrest. The appellant threw his hands up in the air and tried to walk away. Once the officers had physically taken hold of the appellant, Mr Hyde told the appellant that he was under arrest for obstruction (ts 162 - 166)

67 Mr Olney's evidence of the exchange between the appellant and Mr Hyde was to similar effect (ts 219 - 220). Mr Olney also gave evidence that after the appellant said to Mr Hyde 'This is bullshit, you're not the police', Mr Olney said to the appellant: 'You need to provide your name, address and date of birth; if not you may be placed under arrest for obstruction.' (ts 220)

68 Mr Hyde said he recalled Mr Olney saying something to the appellant but he could not recall the exact words (ts 166). Mr Singh's evidence was to the same effect.

69 The primary judge accepted Mr Olney's evidence that he gave that warning.

70 The appellant challenges that finding on two bases. The first is that Mr Olney was not in a position to give such a warning as he was behind the appellant and the appellant was engaged in conversation with Mr Hyde. The second is that the CCTV footage (which contained visual images but not sound) demonstrated that there was insufficient time for Mr Olney to have given such a warning. Neither of those contentions establishes that the finding was 'inconsistent with facts incontrovertibly established by the evidence' or 'glaringly improbable'.

71 In fact, Mr Hyde's evidence was that, during his exchange with the appellant, he was facing the appellant and Mr Olney was to Mr Hyde's right-hand side (ts 166). In any event, it is clear from the evidence and the CCTV footage that at all material times Mr Olney was standing close to the appellant and, wherever he was actually positioned in relation to the appellant, there is no reason he could not have given the warning the primary judge found he did.

72 The appellant endeavoured to establish at trial and again on the appeal that, taking into account Mr Olney's description of the sequence of events on the platform in relation to the movement of the train and a second by second calculation of the train's movements on the CCTV footage, there was insufficient time for Mr Olney to have given that warning before the appellant was arrested. The primary judge clearly rejected that analysis and accepted Mr Olney's evidence that he gave the warning. Having viewed the CCTV footage, in our view it was clearly open to her Honour to do so. There was an air of artificiality about the exercise the appellant undertook, relying as it did on a precision as to the timing of events that was in the nature of things quite unrealistic. The primary judge was entitled, as she did, to make that finding based on her assessment of Mr Olney's credibility.

73 The challenge to the primary judge's factual finding is rejected.

74 This ground complains about the adequacy of the primary judge's reasons for dismissing the appellant's claim based on false imprisonment.

75 In general terms, false imprisonment involves intentional subjection of the plaintiff to a complete deprivation of, or a restraint upon, the plaintiff's liberty. Upon proof of such imprisonment the onus is on the defendant to establish legal justification for it. See C Sappideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011) [2.80]; Darcy v State of New South Wales [2011] NSWCA 413 [143] - [146].

76 Her Honour found, for reasons she explained, that (1) the appellant had been lawfully arrested; and (2) that he had been 'detained for the minimum necessary period.' Once those findings were made, the appellant's claim of false imprisonment had to fail. That much was obvious and it was unnecessary for her Honour to say any more than she did. The trial judge's reasons were adequate.

77 We have found the first of the primary judge's findings to have been in error, and will allow the appeal on that basis. If we had not allowed the appeal on that basis, we would not have allowed the appeal on the basis of inadequate reasons.

78 We would allow the appeal and set aside the orders of the primary judge. We will hear the parties on the appropriate consequential orders.