Burns v State of New South Wales

The Facts

1. The interaction between Ms Burns and two senior constables of the New South Wales Police Force on 31 January 2022 was captured by Ms Burns who video/audio-taped it with her mobile telephone. It occurred shortly after 7:50pm outside the front of the house of Ms McNamara, a friend of Ms Burns. It was still daylight. It begins with the unmarked car containing the police officers pulling over to the side of the road that Ms Burns is standing next to and getting out of their car. Ms Burns' car is parked to her left, facing the police car. Ms Burns' car is parked facing into the direction of the traffic rather than in the conventional way. The police officers are in plain clothes and they are wearing their badges which are hanging around their necks. There is considerable background noise from a powered lawn mower which is being used to mow the lawn adjacent to the place where the unmarked police car parks. A copy of the video tape on a USB was tendered in evidence in the plaintiff's case. A transcript of the video tape was also tendered. The interaction was as follows: Ms Burns: (as the unmarked police car is pulling over) Pull over. (she walks towards the police car) S/C Oxford: (as he gets out of the car) I thought your licence was suspended. Ms Burns: No, I fixed it. (offering her licence to S/C Abawi, who is approaching) S/C Oxford: Sorry? S/C Abawi: Constable Abawi from Mt Druitt Police Station. (As he says this, S/C Abawi takes Ms Burns licence from her hand as she holds it out to him.) Ms Burns: Yep. S/C Abawi: So the reason why we are interacting with you today is because we believe your licence is suspended and you are a habitual traffic offender. Ms Burns: Yeah. S/C Abawi: Therefore, that's the reason for our interaction. Ms Burns: Yep. S/C Abawi: Yep. Ms Burns: It's every time you see me. S/C Oxford: Is Josh still in? Ms Burns: This has got nothing to do with Josh. This is. S/C Oxford: No I'm just. Ms Burns: You are talking about me. S/C Oxford: I'm making conversation that's all. Ms Burns: I don't care. S/C Oxford: No worries. S/C Abawi: You in a bad mood today? Ms Burns: No. I'm sick of this. S/C Abawi: Why? Ms Burns: It's non-stop harassment. S/C Abawi: What do you mean? Ms Burns: I've got that much video footage of you fellas driving past. (S/C Abawi hands an electronic device to S/C Oxford) S/C Oxford: Hang on. Ms Burns: High beaming my house. I'm not even on parole bail, why are you harassing me for? S/C Abawi: I just told you. Ms Burns: Mt Druitt Police. S/C Abawi: I just told you why. Ms Burns: I'm inside my house (loudly). S/C Abawi: You're not inside your house now. You are literally on the road. Ms Burns: 12 O'clock at midnight, midnight and you have come past high beaming my house. S/C Abawi: I don't know what you are talking about. I literally just told you, I saw you driving the car. Ms Burns: Whatever. I've got video footage. S/C Abawi: Have you. Ms Burns: I do. S/C Abawi: Alright well forward it to the Ombudsman and make a complaint then. Ms Burns: No, I've already been in contact with Law Access. S/C Abawi: Have you? What did they say? Ms Burns: About you fellas breaking into my house and everything when I'm not home. S/C Abawi: Did they give you any advice about driving?(S/C Oxford walks away towards Ms Burns' car looking at the electronic device in his hands) Ms Burns: No. I'm talking about you fellas breaking into my house when I'm not home and stuff. S/C Abawi: We haven't broken into your home, what are you talking about? Ms Burns: I've got video footage. S/C Abawi: Of me? Ms Burns: No not you, not you personally. S/C Abawi: Who? Ms Burns: Your officers. I am sick of this shit. S/C Oxford: Ah. Yeah licence is all good (walking back towards Ms Burns and S/C Abawi). Ms Burns: I fixed it. I told you that. S/C Oxford: You didn't tell us that. Ms Burns: Yes I did, when you jumped out of the car and you said my licence was suspended, I said no I fixed it. S/C Abawi: Thank you. (hands drivers licence back to Ms Burns). Ms Burns: Thank you very much. S/C Abawi: We appreciate your assistance. You understand why yeah. Ms Burns: No. S/C Abawi: You are a habitual traffic offender. Ms Burns: Ah yep. S/C Abawi: So you have had that many infringements and charges in relation to your licence that ….You have been put on notice because of that. Ms Burns: Have I. Have I. Where is the evidence for that. S/C Abawi: It's on my police record. Ms Burns: So show me that. S/C Abawi: No I am not going to show you that. No. Ms Burns: Okay don't show me. S/C Abawi: I'm just telling you but I'm not going to show you. Ms Burns: Because you don't have nothing. S/C Abawi: I do. Ms Burns: See you later. S/C Oxford: You know it's an offence to park on the wrong side of the road? (the police officers turn and start walking back to their car) Ms Burns: Goodbye. Ms Burns: I will move it. See you later. Goodbye, goodbye. S/C Oxford: That's alright you will get an email alright. Ms Burns: Goodbye, goodbye, goodbye. Ms McNamara: So not even a warning? S/C Oxford: We are getting sick of … Take care. S/C Abawi: Have a good day. See you later. Bye bye now. (the police officers get into their car) Ms Burns: (presumably to Ms McNamara) Nah. This is what I mean. This is all the time, it's all the time with these fellas. Big, big hard people because they have got a badge. See you later. Goodbye.
2. When S/C Oxford walked away during the conversation, he took a photograph of Ms Burns' car, which had her handbag sitting on the bonnet on the drivers side of the car, which was next to the footpath because the car was parked facing into the direction of the traffic rather than in conformity with the direction of the traffic. The photograph was tendered in evidence.
3. In evidence, Ms Burns said that she had been inside the house for about an hour with Ms McNamara when Ms McNamara asked her for a cigarette, so she walked outside to her car to retrieve her handbag from the passengers seat of the car. Ms Burns said that she opened the driver's door, put her knee on the drivers seat and reached over to grab her bag. She then stood up and noticed the police go past, brake and do a U-turn. She saw that "it was the detectives" so she began recording on her phone.
4. Ms Burns gave evidence that she had had prior experiences with police officers. She recounted an incident in December of 2021 when police officers were executing a warrant at her partner's friend's house and her hand was injured as they kicked in the door. She also said that she had been asked for her ID by police officers on previous occasions, though not the two police officers she interacted with on 31 January 2023.
5. Ms Burns said that she felt intimidated and harassed, scared and worried during the interaction on 31 January 2023. She also said that she felt shame and embarrassment because the incident occurred in the presence of neighbours.
6. Ms Burns agreed, in evidence, that she handed her licence to the police officer without being asked for it.
7. In cross-examination, Ms Burns' attention was drawn to that place in the video/audio tape of the interaction with the police in which S/C Abawi says to her "I don't know what you're talking about. I literally just told you I saw you driving the car" and Ms Burns replied "Whatever". Ms Burns said, in effect, that the police could not have seen her driving because she had been at Ms McNamara's for some time.
8. Ms Burns agreed that she had previously lost her licence on account of three speeding offences for a period of three months. She had applied to the Local Court to get her licence reinstated, and she had succeeded by agreeing to a payment plan in relation to the fines. She said that this was what she was referring to when she said "No, I fixed it" at the beginning of the interaction with the police officers on 31 January 2022.
9. Ms Burns said that she had had previous interactions with both of the police officers. S/C Oxford had arrested her partner on 16 December 2021, and her partner was incarcerated at the time of the interaction on 31 January 2022. She said that she had had an interaction with S/C Abawi about a month before 31 January 2022 at her house.
10. It was put to Ms Burns that she drove her car to Ms McNamara's house and parked it just prior to seeing the police on 31 January 2022. Ms Burns denied this. It was put to her that she got out of the car carrying her handbag, reached into the handbag and took out her drivers licence to give to the police officers and then put the handbag on the bonnet of her car.
11. In cross-examination, the following exchange took place: Q. You wanted to show the police that you had a valid drivers licence, correct? A. Yes, because the blond one jumped out of the car and said, "I thought your licence was suspended". Q. That's right. A. I said, "No, it's not". … Q. And you handed your licence over so they could check that your valid licence, you were permitted to drive, correct? A, Well, yeah, I thought I had to hand over my licence. Q. And you understood that they would check and you expected that when they checked, they'd find that your licence was good, correct? A. Yes. Q. You wanted to convince them that you had a valid licence because that would mean you hadn't committed an offence of driving while suspended, correct? A. Yeah, I didn't do anything. Q. Indeed your view was, I haven't done anything wrong, I'm entitled to drive, here's my licence, go check it; do you agree? A. Yes. Q. The reason you wanted to convince them, I'm putting to you, is that because you understood they'd seen you drive? A. No. Q. You don't accept that? A. No.
12. Ms McNamara gave evidence in the plaintiff's case via AVL. Ms McNamara said that Ms Burns had been in her house for about an hour before she went out to her car to get cigarettes. She said that she followed Ms Burns out of the house a short time after Ms Burns went out and saw Ms Burns recording on her phone. She confirmed that part of her body appears in the photograph of Ms Burns' car taken by S/C Oxford. She also said that the object which can be seen at her feet in the photograph is her handbag.
13. Both Ms Burns and Ms McNamara gave evidence that they were close friends at the time of the incident the subject of the proceedings, but they have since fallen out and no longer speak to each other.
14. S/C Oxford gave evidence in the defendant's case. S/C Oxford confirmed that he generated a COPS report of the interaction with Ms Burns at the end of the shift, which was on 1 February 2022 at 2:46am. The COPS report was tendered. It says, relevantly: 01/02/2022 02:46 PROACTIVE CRIME TEAM T/D 7:50pm on 31/01/2022 … POI: Jamie Lee BURNS … VOI … At the above stated time and date, Police observed the POI drive South on [name of street]. Police observed the POI park the vehicle on this street. The POI was the sole occupant of the vehicle. Police conducted a check on the POI's driver's licence which revealed it was currently active class C P2. The VOI was parked on the incorrect side of the road with the front of the vehicle facing the opposite way of the direction of travel. Police informed the POI that it was an offence to which she stated "I know. I'll move it now". Police issued the POT with traffic infringement no. ….via mail.
15. S/C Oxford said, in evidence, of the events of 31 January 2022: Q. Can you tell her Honour to the best of your recollection, when you first came into contact or observed Ms Burns on that day? A. So observed a blue Ford Falcon travelling on [name of street] from [name of intersecting street]. I observed the vehicle pull off to the side where it parked. I conducted a U-turn - well, sorry, just a bit before that. So as I've observed it park off to the side, I looked into the vehicle and saw that Jamie Burns was the sole occupant of the vehicle in the driver's seat. I then conducted a U-turn and then came to a park, exited the vehicle, and then approached Jamie Burns who was standing next to her vehicle. Q. Did you observe Jamie Burns doing anything at the time she was standing next to the vehicle and you were exiting yours? A. I believe she was unpacking things from the vehicle. Q. Did you have a conversation with her? A. Yes. Q. What was your purpose in having a conversation with her? A. Purpose was to inquire about her licence status as I just saw her driving, I believed at the time that she was suspended. Q. You told Ms Burns that her licence was suspended, correct? A. I asked, "Is it suspended?", and I didn't hear a response, so I wanted to do subsequent checks just to make sure.
16. S/C Oxford said that he used the police mobile device to check that Ms Burns' drivers licence was current.
17. S/C Oxford said that, on 31 January 2022, he was part of the Proactive Crime Team at the Mount Druitt Local Area Command. He said that part of his role was to conduct proactive patrols around the area looking for property based offences and the like. In cross-examination he said that traffic offences were within the scope of his duties.
18. In cross-examination, S/C Oxford said that he had been sent the video footage of his interaction with Ms Burns by the defendant's solicitors. He was asked about Ms Burns' response to him saying, as he got out of the car on 31 January 2022 "I thought your licence was suspended" and he said that he did not hear her response at the time. He said "There's also a lawnmower in the video, so that impeded my hearing".

S/C Abawi was not called to give evidence

1. It was argued on behalf of the plaintiff that I should draw a Jones v Dunkel (1959) 101 CLR 298 inference in relation to the omission on the part of the defendant to call S/C Abawi to give evidence: that is, in circumstances where there is an unexplained failure to call a witness who could reasonably have been expected to give evidence relevant to inferences from facts relied upon by the party failing to call the witness, the court may draw an inference that the uncalled evidence would not have assisted the party.
2. The plaintiff argued that S/C Abawi could have spoken to the issue of lawful justification. He could also have explained what he meant when he said to Ms Burns, on 31 January 2022 "You are literally on the road".
3. The defendant argued that a Jones v Dunkel inference should not be drawn because it cannot be demonstrated that anything has been lost by the omission to call S/C Abawi because the whole interaction the subject of the proceedings was recorded by Ms Burns. The defendant relied upon Hannam v State of New South Wales (No 9) [2022] NSWSC 648 ('Hannam') and the cases cited therein. In Hannam, Adamson J said at [124]: 124. On the basis of the summary of authorities and texts set out by Campbell J (Beazley JA and Pearlman AJA agreeing) in Manly Council v Byrne [2004] NSWCA 123 at [63]-[65], I accept the defendant's submission. The defendant was not obliged to call every police officer who had any connection with the incident. Where an uncalled witness would have been merely cumulative or corroborative of witnesses already called, no Jones v Dunkel inference arises. Much was made of Constable Dennis's absence, since he had jumped from the balcony to gain access to the plaintiff and roll him over. However, whatever evidence Constable Dennis could give could not establish that the plaintiff had suffered NMI since there was no indication of it, given the way the plaintiff moved after being struck by a single probe of the taser. Further, while it was Constable O'Brien who spoke with the plaintiff, he did so in the presence of all the other police officers who were there on the balcony, three of whom were called to give evidence.

Consideration

1. In the statement of claim, the plaintiff's claim that she had been falsely imprisoned by S/Cs Abawi and Oxford is pleaded on the basis of the conversation recorded by Ms Burns on her mobile phone, but a gloss has been added to the following part of the conversation: 14. The unnamed plain clothes male police officer proceeded to taunt the Plaintiff, using words to the effect "are you in a bad mood today?"
2. The police officer in question was not unnamed. He had, in fact, introduced himself near the beginning of the conversation with Ms Burns. His tone when saying "Are you in a bad mood today?" was not taunting, and there is no evidence of any reason to characterise that question as a taunt.
3. In relation to the claim for aggravated damages, the plaintiff's case was pleaded on the basis that: 31(c) The Plaintiff was not at liberty to move freely by virtue of the police officers proceeding to engage with the Plaintiff and requesting the Plaintiff's driver's licence which therefore amounted to a detention of the Plaintiff by the police officers.
4. At no time did either S/C Abawi or S/C Oxford ask Ms Burns to produce her drivers licence. Ms Burns was holding it out to them as they walked towards her.
5. In considering the question of whether Ms Burns was falsely imprisoned by S/Cs Abawi and Oxford, the first matter to be decided is whether they detained her in the relevant sense. As the Court of Appeal said in Le, the question is whether Ms Burns was temporarily deprived of her liberty, remembering that (Le, at [5]): A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual.
6. On 31 January 2022, at the beginning of his interaction with Ms Burns, S/C Oxford said "I thought your licence was suspended" in a neutral tone as he got out of the car. Ms Burns said "No. I fixed it". I accept that S/C Oxford did not hear her say that because of the noise of the lawn mower. He said "Sorry?", which indicated that he did not hear what Ms Burns said. S/Cs Abawi and Oxford were walking towards Ms Burns when she offered her licence, which she was doing as she said "No. I fixed it". S/C Abawi simply took the licence offered to him.
7. Neither S/C Oxford nor S/C Abawi behaved in an intimidating way. Both of them maintained a neutral, conversational tone. No actual or implicit threat to use force was present. No request was made. The officers simply responded to Ms Burns' offer of her licence. Ms Burns continued to participate in the conversation, apparently voluntarily, for some time. When she said "See you later" to the officers, they began to return to their car.
8. It was argued, on behalf of Ms Burns, that the following circumstances lead to the conclusion that a reasonable person in Ms Burns' circumstances would have inferred from the conduct of the officers that she was not free to leave (plaintiff's written submissions): (a) Prior to the relevant interaction, the plaintiff had interacted with other police officers which involved her producing her driver's licence; (b) The plaintiff had previously interacted with SC Abawi months before; (c) The police officers performed a U-turn and drove up to the plaintiff, clearly indicating their intention to interact with her, regardless of her willingness to do so; (d) Both police officers walked towards the plaintiff. Constable Abawi introduces himself formally with "Constable Abawi from Mount Druitt Police Station", (e) Senior Constable Oxford positions himself to the left side of the plaintiff. Constable Abawi is in front of the Plaintiff and takes her drivers licence from her; (f) Both officers are wearing lanyards to which is attached their official police badge. Both officers are carrying their police issued firearms in hip holster which is clearly seen; (g) The plaintiff describes the interaction as "harassment". She clearly does not consent to the interaction.
9. As to (a), there is no evidence before me that the plaintiff had interacted with other police officers in the past in circumstances which involved her producing her drivers licence. Ms Burns' evidence was of being asked for her ID.
10. As to (b), Ms Burns' previous interaction with Constable Abawi was not described in detail and there is no evidence that would support the submission that it would influence a reasonable person to believe that Constable Abawi simply getting out of a car and walking towards Ms Burns constituted a deprivation of her liberty.
11. As to (c) and (d), the U-turn taken by the police officers and their approach to the plaintiff was not an indication that she was about to be detained and neither was the formal introduction given by Constable Abawi.
12. As to (e) and (f), from the video, it is apparent that there was nothing about the positioning of the officers with respect to Ms Burns that in any way indicated that they were detaining her. Likewise, the wearing of badges and firearms in hip holsters did not imply any threat or detention in the context of the interaction.
13. As to (g), the plaintiff gave no indication during the interaction that she was not willingly participating in the conversation. She did take the opportunity to complain about her perception of a series of past events which she has attributed to the police generally, and to make a comment indicating that she believed that her contact with police was too frequent, but she did not seek to walk away from the conversation. At the beginning of the interaction, as S/C Oxford was parking the car, Ms Burns said "Pull over" and walked towards the car, holding her drivers licence out, so it was Ms Burns who initiated the drivers licence check. In the course of the conversations with the police officers, Ms Burns raised several new topics of conversation.
14. A reasonable person in the particular circumstances of Ms Burns would not have inferred from S/C Oxford's remark "I thought your licence was suspended" and the fact that the police officers had parked, gotten out of their car and walked towards them, that they were thereby deprived of their liberty. There was nothing about what the police officers said or did that would have given a reasonable person that impression.
15. It was submitted that the plaintiff feared physical restraint if she did not produce her licence. Ms Burns did not give evidence of such a fear and she does not, during the conversation with the police officers, seem to be fearful. A reasonable person would not have experienced such a fear on the basis of the events recorded. Nothing that the police officers said or did would have given rise to a fear of physical restraint by the police officers.
16. I find that Ms Burns was not detained by S/C Oxford and S/C Abawi on 31 January 2022. She was not falsely imprisoned.

Road Transport Act 2013 (NSW) s 175(1)

1. The Road Transport Act 2013 provides, in ss 4 and 175: 4 Definitions (1) In this Act - driver means any person driving a vehicle, and includes any person riding a vehicle. 175 Requirement for driver or rider to produce Australian driver licence and state name and address (1) An authorised officer may, in the execution of the officer's functions under the road transport legislation, require the driver or rider of a vehicle or horse to do any or all of the following - (a) produce the driver's relevant Australian driver licence (in the case of the driver of a motor vehicle), (b) state the driver's or rider's name, (c) state the driver's or rider's home address. Note - See section 61C which enables a digital driver licence to be used to comply with a request to produce a driver licence. (2) A person must not - (a) refuse to comply with a requirement of an authorised officer under subsection (1), or (b) state a false name or home address. Maximum penalty - 20 penalty units. (3) In subsection (1), a reference to a driver of a vehicle (in the case of a motor vehicle) includes, where the driver is the holder of a learner licence and the motor vehicle is not a motor cycle, a reference to a holder of a relevant Australian driver licence occupying the seat in or on the motor vehicle next to the driver.
2. It was argued on behalf of the plaintiff that the power conferred upon an authorised officer by s 175(1)(a) to require that a driver of a vehicle produce a "relevant Australian driver licence" could only be exercised after the authorised officer had seen the driver driving the vehicle.
3. There is a factual dispute between the parties as to whether Ms Burns had just driven to Ms McNamara's house and had been seen doing so by S/C Oxford immediately prior to the interaction, or whether Ms Burns had been inside Ms McNamara's house for at least an hour and had just come out of the house to get her handbag from the car when the police car did a U-turn in the street.
4. It is unnecessary to resolve the factual controversy or to consider the argument as to ss 4 and 175 of the Road Transport Act 2013 because it is clear from the video/audio recording of the interaction that at no time did either police officer require Ms Burns to produce her Australian drivers licence.
5. The Jones v Dunkel issue set out above at [24] to [26] does not arise, as it relates only to the evidence of S/C Abawi in relation to the Road Transport Act 2013 argument.

Summary and Conclusion

1. On the facts, Ms Burns was not deprived of her liberty at any time during her interaction with S/C Abawi and S/C Oxford on 31 January 2022. She was not falsely imprisoned.
2. The following order will issue: 1. The plaintiff's claim is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2024