State of New South Wales v Le

Court of Appeal (NSW)|2017-10-31|Before: Basten JA, Leeming JA, Payne JA

Solicitors: McCabes Lawyers (Applicant) Andrea Turner (Respondent) File Number(s): 2017/93694 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Le v State of New South Wales [2017] NSWDC 38 Date of Decision: 9 March 2017 Before: Dicker SC DCJ File Number(s): 2016/152438

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Nature of detention

The primary judge (Dicker SC DCJ) made no finding of assault, but upheld the claim for "false imprisonment". Although that label is conventional, both elements are, as noted by Peel and Goudkamp, misleading. [2] There is no reason why such language should continue to be used in circumstances where it is inapt. What was involved in this case was a brief interruption of the respondent's intended progress which might be described as a temporary detention. Detention is a concept with a range of meanings, but can be used in a sense distinct from arrest, which in turn is distinct from imprisonment and holding in custody. Detention, in that limited sense, involves a temporary deprivation of liberty.
Use of appropriate language is important to the proper application of legal principle. To characterise a particular course of conduct as involving some form of imprisonment tends to focus attention on the justification for the conduct, whereas the first question in this case is to identify the nature of the alleged detention.
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. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock: [3] "Furthermore, the word 'detaining' can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be 'stopping and detaining' the latter. There is nothing unlawful in such an act. If a police officer so 'stops and detains' another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful."
There are two aspects of this passage which require clarification. First, read in context, it is clear that the characterisation of the conduct in the final sentence as "unlawful" means it was conduct requiring justification. Secondly, there may be no clear dividing line between the effect of the officer's uniform on the one hand, and an implicit threat to use force in the event of non-compliance, on the other.
This latter point is often an important issue in particular circumstances. The test, however, is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer. The subjective state of mind of the complainant will not be determinative. In the present case, which involved a face-to-face confrontation in a public place, it is not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his or her liberty, as occurred in Meering v Grahame-White Aviation Co Ltd. [4]
In the present case, the fact that the trial judge did not accept that there had been an assault implied that there had been no threat leading the claimant to apprehend the application of force to his person.
The transcript of the conversation did not establish that the claimant's participation in the events was other than consensual up to the point when he was asked to produce something with photo identification such as a driver licence. He argued about his obligation to do that, but agreed to provide the details which would be on it. The officer then said: "Alright well you're gonna have to wait here while we confirm who you are." While that may have been an indication that the claimant was not free to leave, the ensuing conversation, which involved him immediately asking the officers to provide their names and station suggests that his continuing presence was consensual. It was only when the respondent noted, "this is my train by the way guys. Can I …" that the following exchange took place: "OFFICER: That's fine. Until we finish here you're not leaving. LE: Am I under arrest? OFFICER: No you're not, you're being detained. LE: What for? OFFICER: To confirm that this is you, that this card isn't stolen." Within a matter of seconds he was told that he was free to go. At the point where the officer expressly told him "you're not leaving", it is reasonable to infer that he was then being non-consensually detained. That exercise of power required justification.

Justification for detention

The appellant sought to justify the detention on the basis of two sources of legal authority. The first depended on cl 77C of the Passenger Transport Regulation 2007 (NSW) (since repealed) which relevantly provided: 77C Concession tickets (1) A person must not travel, or attempt to travel, on a public passenger vehicle or train on the authority of a concession ticket unless the person is entitled to the concession ticket. Maximum penalty: 5 penalty units. (2) The driver of a public passenger vehicle or an authorised officer may direct a person: … (c) who makes a concession ticket available for inspection under this Division, to produce to the driver or authorised officer evidence (for example, the person's pensioner or student concession card) that the person is entitled to the concession ticket. (3) A person who is given such a direction must immediately comply with it. Maximum penalty: 5 penalty units. … (5) A person must not: (a) in or in connection with an application for a concession ticket or the issue or purchase of a concession ticket, or (b) in purported compliance with a requirement made under this clause, knowingly give any information or tender any document that contains a false or misleading particular with respect to the age, occupation or status of the person to whom the application or direction relates. Maximum penalty: 5 penalty units. …
For the purposes of subcl (2), it appears that the Opal card was made available for inspection to the officer on request, pursuant to cl 77E which also appears in Pt 6, Div 4 of the Regulation.
Senior counsel for the respondent relied upon the statement of principle expressed by Gageler J in Prior v Mole: [5] "Personal liberty is 'the most elementary and important of all common law rights'. [6] Critical to its preservation is that 'the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable'. [7] " This passage was referred to as one of a number of general propositions in State of New South Wales v Smith. [8] In Prior v Mole, Gageler J noted that the legislation there under consideration "adheres to that precept" by imposing a condition that a power to apprehend a person without warrant arises only "if the [police officer] has reasonable grounds for believing" certain specified matters. [9] In Smith, McColl JA continued: [10] "Because the law places a high value on personal liberty, a statute which authorises the detention of a person must be strictly construed."
Smith concerned the validity of an arrest; there was no occasion in that case to consider the difference between arrest and detention for a limited period. Statements of general principle provide a background against which a specific statutory provision must be construed, but in accordance with its language and context. As will be explained below, such statements provide little assistance in the present case.
Two issues arose as to the operation of subcl 77C(2). The first was whether the officers were entitled to direct that the respondent produce a driver licence, or some other form of photo identification, as "evidence" that he was entitled to the concession ticket. One limb of the argument appeared to be that the words in parentheses, although commencing with the phrase "for example", denoted the outer limits of the power, so that production of either of the two concession cards exhausted the scope of the power. Accordingly, the production of a pensioner concession card was sufficient to satisfy the requirement under subcl (2) and therefore provided the limit of the officer's authority.
That reading of the subclause is not reasonably open. First, it appears to substitute the word "either" for the phrase "for example" by requiring that either one or other card was sufficient. Secondly, it gives no work to the word "evidence". That terminology is not readily equated with a simple requirement to produce an appropriate concession card.
On the basis that that proposed limitation was unavailable, it was submitted that the Court should consider whether the demand for further identification was "reasonable", according to some objective standard. There are two answers to that submission. First, the purpose of the subclause is to allow the officer to verify that the person who has produced a concession ticket is entitled to it. No doubt the request for further information must be made in good faith by an officer who did not know who the ticket holder was. [11] However, where the production of the concession card did not allow that link to be made, it was not unreasonable of the officer to seek further evidence, which was provided in the form of a date of birth.
Secondly, the use of the term "evidence" does not imply that the matter is to be tested by the court forming its own view as to the relevant connection. Rather, "evidence" refers to a document or information sufficient to satisfy the officer, to whom it is to be produced, of the connection between the person being questioned and the entitlement to a concession ticket. Arguably, the officer's determination as to sufficiency may be challengeable on judicial review grounds, but the court is not entitled to form its own opinion, as opposed to testing the rationality and good faith of the opinion formed by the officer.
That leaves the critical question as to the operation of subcl 77C(2), namely whether it carries within it an implied power to stop and detain a person for the purpose of carrying out the exercise which it envisages, namely the giving of a direction and the production of evidence. While it is true that the courts will not read legislation as conferring authority to interfere with the fundamental rights of individuals, absent clear words or a necessary implication, there are two limitations implicit within that proposition. The first is that express words are not essential; the second is that what may be derived by implication will turn on the legislative context and the nature of the interference being authorised.
In the present case, there are no express words such as may appear in other contexts authorising an officer to require a person to stop, listen to the direction and remain until the inquiry has been completed. For example, there is no equivalent language to that found in the Road Transport Act 2013 (NSW) empowering an authorised officer to direct the driver of a vehicle to stop the vehicle and not move the vehicle. [12] On the other hand, the conferral of a power (under cl 77E) to request a ticket for inspection, subject to a penalty for non-compliance, necessarily implies a power to make the request and, if necessary, stop the person to allow the request to be made and responded to. The same reasoning applies to cl 77C(2). Accordingly, the steps taken by the officer to direct the production of evidence demonstrating entitlement to the concession ticket carries with it the implied power to detain the person whilst those steps were undertaken. The fact that subcl (3) requires that the person must "immediately comply" with the direction demonstrates that the time of the relevant detention will be quite short. A failure to comply will form the basis for taking other steps, including arrest, in relation to the commission of an offence. That stage was not reached in the present case.
To impose an even tighter constraint on the powers conferred by subcl 77C(2), as proposed by the respondent, is not to advance the cause of liberty, but to force officers to move immediately they are confronted by non-compliance to exercise their far more intrusive powers of arrest. That construction would not best give effect to the purpose revealed by the legislative scheme.
The second source of justification for the steps taken was said to be found in the "Terms of Use" of the Opal card published pursuant to cl 76(1)(b) of the Regulation. [13] The relevant sections of that document read as follows: "73. Revenue protection: You must co-operate with any officer (including any NSW police officer) authorised by us to monitor fare evasion, protect revenue or enforce compliance (Authorised Officer). 74. Proof of entitlement: … When travelling using a Free Travel Opal Card or an Opal Card that entitles you to concessional fares (including a concession Opal Card or a senior/pensioner Opal Card), you must carry and produce upon request by an Authorised Officer evidence of your entitlement to support your eligibility (e.g. being a valid Senior Card, Pensioner Card or Student Card). If you fail to carry or produce the evidence referred to above, you may be liable to pay a fine. Your eligibility for concessional, discounted or free travel may also be suspended or withdrawn. 75. Production of Opal Card: You must immediately produce the Opal Card that you are using if requested to do so by an Authorised Officer. You consent to any Authorised Officer inspecting the Opal Card and viewing transactions on the Opal Card."
It may be doubted whether these requirements provide any greater authority than that conferred by cl 77E and cl 77C of the Regulation. Reliance upon them would introduce additional issues as to whether the deprivation of liberty about which complaint is made becomes consensual or the subject of a contractual obligation, thus removing the element of detention. On the basis that reference to these provisions is unnecessary, those issues need not be discussed further.

Conclusion

It follows that the officers were justified in the steps they took in stopping and detaining the respondent in order to obtain production of his Opal card and evidence of his entitlement to a concession card. Accordingly the proceedings should have been dismissed. The appeal must be allowed.

Damages

Given the conclusions as to liability, it is not necessary to address ground 4 in the draft notice of appeal, which challenged the awarding of damages. The challenge was specifically based on the terms and conditions of use of the Opal card, to which reference has already been made. However, it is appropriate to refer briefly to an assumption on which the claim was based, namely that calculation of damages was not subject to the requirements of the Civil Liability Act 2002 (NSW).
Part 2 of the Civil Liability Act applies to awards of "personal injury damages" except an award excluded by the operation of s 3B. [14] In the present case, the award was for non-economic loss. If Pt 2 applied, s 16 precluded any award of damages for non-economic loss unless the loss was at least 15% of a most extreme case; clearly the present case did not fall into that category.
It follows that the case was run on the basis that those limitations were excluded because s 3B applied to the award. Relevantly, s 3B(1)(a) excludes the operation of most of Pt 2 in respect of civil liability "in respect of an intentional act that is done by the person with intent to cause injury or death …". There was no doubt that the temporary detention of the respondent was an intentional act; on the other hand, there was an open question as to whether the conduct of the officer in directing the respondent not to leave until the officer had had the opportunity of checking the respondent's personal information over the radio was done "with intent to cause injury". However, as the point was not taken and the appeal must be upheld on other grounds, it is not appropriate to take this matter further.

Orders

The Court makes the following orders: 1. Grant the State leave to appeal from the judgment in the District Court delivered on 9 March 2017. 2. Direct the State to file within 7 days a notice of appeal in the form of the draft notice contained in the white folder. 3. Allow the appeal and set aside orders (1) and (2) made in the District Court; in lieu thereof dismiss the proceedings. 4. Order that, in accordance with the condition on which leave is granted, the State pay the respondent's costs in this Court.

Endnotes

Le v State of New South Wales [2017] NSWDC 38.
W E Peel & J Goudkamp, Winfield & Jolowicz: Tort (19th ed, Sweet and Maxwell, 2014) at [4-023].
Collins v Wilcock [1984] 1 WLR 1172 at 1180 (Robert Goff LJ and Mann J).
(1919) 122 LT 44 at 53-54, discussed in Eatts v Dawson (1990) 21 FCR 166 at 177 (Morling and Gummow JJ).
[2017] HCA 10; 91 ALJR 441 at [22].
Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68; Williams v The Queen (1986) 161 CLR 278 at 292; [1986] HCA 88.
Donaldson v Broomby (1982) 40 ALR 525 at 526; [60 FLR 124].
[2017] NSWCA 194 at [102] (McColl JA).
Prior v Mole at [23].
Smith at [103].
Cf Hazell v Parramatta City Council [1968] 1 NSWR 165 at 175-176 (Isaacs J).
Road Transport Act, s 169A(2); Sch 3, cll 3(3), 4(2) (random breath testing and breath analysis); s 175 (production of driver licence and stating name and address).
NSW Government Gazette, Number 111 of 11 December 2015, p 4043.
Civil Liability Act, s 11A(1). 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: 16 November 2017

Passenger Transport Regulation 2007(NSW)

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