Le v State of New South Wales

[2017] NSWDC 38

District Court

New South Wales

Medium Neutral Citation:	Le v State of New South Wales [2017] NSWDC 38
Hearing dates:	16 February 2017 – 17 February 2017
Date of orders:	09 March 2017
Decision date:	09 March 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant to pay the plaintiff the sum of $3,201.00. (3) Liberty to apply in relation to costs. (4) Exhibits to be returned in 28 days, unless otherwise ordered.
Catchwords:	Torts – false imprisonment – claim in relation to police officers – whether plaintiff unlawfully imprisoned – whether the police officers had lawful authority to detain the plaintiff – powers of police under Reg 77C of the Passenger Transport Regulation 2007 – whether police officer had suspicion based on reasonable grounds that a Pensioner Concession Card may have been stolen – Sections 11 and 19 of LEPRA.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibility) Act 2002 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Local Court Act 2007 (NSW) Passenger Transport Act 1990 (NSW) Passenger Transport Regulation 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Azar v DPP [2014] NSWSC 132 Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32 Elleray v Rail Corporation NSW [2017] NSWCA 23 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Hammond v The Commonwealth (1982) 152 CLR 188 Hetty v The Queen (1991) 173 CLR 95 Hyder v Commonwealth of Australia [2012] NSWCA 336 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Director of the Serious Fraud Office; ex parte Smith [1993] AC 1 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v TD [2013] NSWCA 32 Woodley v Boyd [2001] NSWCA 35
Category:	Principal judgment
Parties:	Hoang Thanh Le (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: A Turner (Plaintiff) E Raper (Defendant)   Solicitors: Andrea Turner (Plaintiff) McCabes Lawyers (Defendant)
File Number(s):	2016/00152438

Judgment

1. This is a claim by the plaintiff for damages for false imprisonment in relation to events which occurred at Liverpool Railway Station in Sydney in the State of New South Wales on 14 January 2016. The defendant, the State of New South Wales, is sued as the entity liable for torts committed by police officers under the Law Reform (Vicarious Liability) Act 1983 (NSW).

2. The plaintiff, who is a young man aged 24 years, claims that he was falsely imprisoned by the police officers by being detained for a little over four minutes at Liverpool Railway Station.

Statement of Claim

3. By Statement of Claim filed 18 May 2016, the plaintiff seeks compensatory damages, aggravated damages and exemplary damages for assault and false imprisonment. In the body of the Statement of Claim a wrongful arrest is also alleged. At the commencement of the proceedings, Mr Turner, the solicitor acting for the plaintiff who also acted as counsel in the proceedings, confirmed that his client was only suing the defendant for the tort of false imprisonment.

4. In the Statement of Claim the plaintiff pleads his case as follows:

1. The plaintiff was born on xx xxxx 1992 (paragraph 3);

2. At about 7.23pm on 14 January 2016 at Liverpool Railway Station, Constable Willey and an unknown police officer (later identified as Constable Doss) wrongly arrested and detained the plaintiff (paragraph 4). Substantial particulars are provided of the alleged wrongful arrest. The plaintiff alleges that he walked past Constables Willey, Stoker and the unknown police officer at the station entrance. It is said that Constable Willey demanded a train ticket and concession entitlement. The plaintiff particularises that he produced an Opal card and Commonwealth concession disability support pension card to show that he was entitled to the concession ticket. It is asserted that Constable Willey, without cause, unlawfully demanded an identification document because the Opal card and/or concession card had no photo on them;

3. The plaintiff particularises that Regulation 77C of the Passenger Transport Regulation 2007 did not compel production of identification of any kind including any photo identification in addition to the Opal card and disability pension card. It is asserted that Constable Willey dishonestly demanded that the plaintiff was obliged to produce identification and claimed this was because there was no photo on the concession card and he did not know who the plaintiff was. The plaintiff says he did not produce any identification as was demanded and that Constable Willey demanded that the plaintiff wait while the identification was checked on the police radio.

4. After enquiries as to the plaintiff’s date of birth by Constable Willey, Constable Willey then said the plaintiff could leave. It is asserted that the plaintiff was detained for about four minutes and 15 seconds and neither officer offered an apology. It is particularised in particular (ff) that the matter was serious “as demonstrating an extreme contempt for and harassment of the plaintiff, which suggests this was vindictive payback for litigation matter involving Stoker, at 2.22pm on 31.3.2015 in the company of Peter Penuvceski and L Acosta at Liverpool station”;

5. It is pleaded that the police officers falsely imprisoned the plaintiff and deprived him of his liberty (paragraph 6);

6. It is pleaded that by reason of the conduct of the police officers, the plaintiff suffered fear, distress of mind, indignity and was deprived of his liberty (paragraph 7). Although particulars of the plaintiff’s alleged injuries are provided, the solicitor for the plaintiff stated there was no allegation that the plaintiff suffered any physical or psychological injury as a result of the events in question;

7. Extensive particulars in support of aggravated and exemplary damages are also provided. It is particularised that Constable Willey and Constable Doss knew that Constable Willey had no right to demand of the plaintiff an identification document (particular (g)). It is also pleaded that Constable Willey and Constable Doss knew that they had no right to detain the plaintiff to check who he was or whether the cards were stolen since there was not “a scintilla of evidence consistent with indicia of criminal conduct” (particular (e)). It is alleged that Constable Stoker was involved in causing the incident as a matter of inference (particular (n)).

Defence

5. The defendant filed a Defence on 25 August 2016. That Defence:

1. Admitted that Constable Willey, Senior Constable Stoker and Constable Doss were in the service of the Crown;

2. Admitted that the defendant would be vicariously liable for any torts allegedly committed by the officers if those torts are established;

3. Denied the torts alleged (paragraph 1(e));

4. Denied that the plaintiff was arrested (paragraph 3(b));

5. Asserted that Constable Willey suspected that the plaintiff was in possession of, and using, a stolen concession card and accordingly Constable Willey requested that the plaintiff provide an identification document pursuant to Section 11 of the Law Enforcement (Powers and Responsibility) Act 2002 (“LEPRA”) to confirm that the concession card belonged to the plaintiff (paragraph 3(d));

6. Says that the plaintiff’s detention was lawful pursuant to Regulation 77C of the Passenger Transport Regulation 2007 and Section 11 of LEPRA (paragraph 5(b));

7. Denies that the plaintiff is entitled to the relief which he seeks in the Statement of Claim.

The issues according to the parties

6. The plaintiff’s Statement of Issues and Damages for the hearing dated 12 February 2017 was as follows:

1. Did Constable Willey suspect on reasonable grounds that the plaintiff was in possession of a stolen concession card?

2. Did Constable Willey make a valid demand for photo identification pursuant to Regulation 77C of the Passenger Transport Regulation 2007;

3. Did Constable Willey make a valid demand for photo identification pursuant to Section 11 of LEPRA;

4. Did Constable Willey lawfully arrest and/or detain the plaintiff, against his will, in order to confirm the plaintiff’s identity?

5. Is the plaintiff entitled to general compensatory, aggravated and exemplary damages as a result of the tortious conduct?

7. The defendant also produced a Statement of Issues. Some of these issues are no longer relevant due to the plaintiff’s concession that he was only suing for the tort of false imprisonment. The relevant issues in the defendant’s Schedule of Issues are as follows:

1. “Was the questioning of the plaintiff for a few minutes for the purpose of proving entitlement to a concession fare lawful? The defendant will contend that it was justified by:

1. Regulation 77C of the Passenger Transport Regulation 2007; and/or

2. Sections 11 and 19 of the Law Enforcement (Powers and Responsibilities) Act 2002.

…

(4)    Was the plaintiff falsely imprisoned? If so, when? The defendant will deny any false imprisonment.

…

(6)   Is the plaintiff entitled to general, aggravated and exemplary damages? The defendant will contend that even if liability is established, the plaintiff is not entitled to any damages.

(7)   If the Court finds there is an entitlement to damages, the quantum of damages to be awarded to the plaintiff. The defendant will contend that the award of any damages would be nominal.”

The plaintiff’s evidence in chief

8. The plaintiff gave evidence that he arrived at Liverpool train station on 14 January 2016 at about 7.15pm. He said that when he arrived he tapped on with his Opal card. The plaintiff says he saw a number of police officers including Senior Constable Michael Stoker and Constable Willey and a person who he now knows as Constable Doss: T5.30. He proceeded to Platform 3 and walked towards the screen showing the train timetabling: T5.38.

9. The plaintiff stated that Constables Willey and Doss approached him and as they approached him he started video recording on his telephone for the purposes of his safety as he had been “mistreated” in the past by Senior Constable Stoker (“Constable Stoker”): T6.37-7.5.

10. When the police arrived the plaintiff claimed a conversation occurred to the following effect:

“Q. What did the police do when they saw you?

A. As I recall, Constable Willey and Constable Doss both approached me and then Constable Willey then said to me, “Have you got a ticket?” I then said, “No, I don’t.” Constable Willey said, “Do you have an Opal card?” I then said, “Yes, I do.” Constable—“ (T6.9-.13).

11. The plaintiff gave evidence of prior incidents where he had spoken with Constable Stoker and other police officers in 2015. The plaintiff alleges that in one of those incidents he had been pushed by a constable: T8.16. This had led to litigation in this court which, according to the plaintiff’s evidence, had settled. That Statement of Claim was admitted as Exhibit 2 in the proceedings but did not reveal any allegation of the plaintiff being pushed. The plaintiff gave evidence that he had put his phone on recording on 14 January 2016 because of the previous matters with Constable Stoker. He also claimed that he saw Constable Stoker again on 14 January 2016 at Liverpool train station. As he believed that Constable Stoker was in charge of the other constables, he claimed that there was a possibility that he (the plaintiff) could be approached by Constable Stoker or Constable Stoker could have commanded the other officers to approach him and therefore he believed he should record what occurred: T10.6-.24.

12. There was admitted into evidence as Exhibit A an agreed transcript of the audio visual recording on the plaintiff’s telephone. As that conversation is crucial to the case I will set out the detail of Exhibit A in full. Constable Willey later gave evidence that there were some minor aspects of the transcript that were incorrect and I will deal with those in due course. Exhibit A was as follows:

“TRANSCRIPT of audio visual material recorded by Hoang Le

1.   Willey:    Do you have an opal card?

2.   Le:    Yes I do.

3.   Willey:   Yeah. So why are you being a smart ass for?

4.   Le:   What's your name sorry?

5.   Willey:   My name is Constable Willey with Bankstown Police Transport Command.

6.   Le:   Sorry which L.A.C was that?

7.   Willey:   Do you have a problem listening? Could you just get your opal card out.

    Doss:   Get your opal card out mate.

8.   Le:   It’s very unprofessional the way how you are behaving.

9.    Willey:   Yeah well make a complaint. I told you my name and command ok put your complaint in.

10.   Willey:   lf we ask for your ticket obviously it means with a paper ticket which they do still sell or your opal card, alright.

11.   Le:   They're trying to get rid of all the paper tickets right.

12.   Willey:   Yeah I know, but they haven't have they.

13.   Le:   Sooner or later they will.

14.   Willey:   You got your pension or concession card there?

15.   [Background noise - cannot hear any words uttered]

16.   Willey:   Have you got something with your name on it, photo ID?

17.   Le:   Sorry?

18.   Willey:   Photo ID or driver's license?

19.   Le:   Why's that?

20.   Willey:   Because there's no photo on it.

21.   Le:   I'm not in a motor vehicle right now so why do I have to?

22.   Willey:   Mate you're obliged to produce photo ID to say that's your card. How do I know that's you?

23.   Le:   Sorry?

24.   Willey:   How do I know that's you on that?

25.   Le:   Because my details are clearly on there.

26.   Doss:   Are you doing recording it?

27.   Le:   Yeah because he's trying to mislead me, he's trying to get my ID.

28.   Doss:   He's trying to verify who you are, this doesn't verify who you are, there's no photo on it.

29.   Le:   But I can provide you the details on it. That's no problem.

30.   Willey:   Alright well you're gonna have to wait here while we confirm who you are.

31.   Le:   Sorry what was your name sir?

32.   Willey:   I've already told you.

33.   Le:   Well on your ID it just says M, I don't know what that stands for.

34.   Willey:   Ok well that's great.

35.   Le:   So he's refusing to tell me his first name now.

36.   Willey:   Yeah put it onto whatever social media you want. [Inaudible] be a hero.

37.   Le:   You from Bankstown did you say?

38.   Doss:   Bankstown Police Transport Command.

39.   Willey:   [Talks into radio] Surname is Le, lima echo. First name...

      Le;?   So this officer is now demanding me for my driver's license when I'm not even in a car.

40.   Willey:   What's your date of birth champ?

41.   Le:   Sorry?

42.   Willey:   What’s your date of birth?

43.   Le:   xx xxxx 92.

44.   Willey:   [Talks into radio] Date of birth is xx xxxx 92, should have a Cabramatta address.

45.   Le:   This is my train by the way guys. Can I...

46.   Willey:   That's fine. Until we finish here you're not leaving.

47.   Le:   Am I under arrest?

48.   Willey:   No you're not, you're being detained.

49.   Le:   What for?

50.   Willey:   To confirm that this is you, that this card isn't stolen.

51.   Willey:   [Talks into radio] 253 go ahead.

52.   Le:   This is platform 3, Liverpool station, NSW City Rail.

53.   Willey:   [Talks into radio] No worries.

      [To Le] Here you are mate, the time is 7.30PM & you're free to go. Have a nice day.

54.   Doss:   Bye.

55.   Le:   Am I free to go?

56.   Willey:   Yeah I just told you that didn't I.

57.   Le:   Just confirming that's all.

58.   Willey:   You not catching your train?

59.   Le:   Sorry, didn't you hear what they just said? They said all the trains from platform 3 are now going over to platform 1. You should listen since you're doing transport command.

60.   Willey:   Oh yeah good on you champ.

61.   Le:   Just reminding you that's all.

62.   Willey:   Make sure you spell my name right when you put it on social media.

63.   Le:   Nah it's just here for evidence only if you do anything wrong that's all. But if you're not doing nothing wrong then you shouldn't be too worried. True?

64.   Willey:   Alright that's it. All I could do was confirm who you are and that was it. Have a good day.

65.   Le:   You too man.”

13. The audio and visual recording of this conversation was also admitted into evidence.

14. The plaintiff was then taken through in chief his recollection of the conversation with the two police officers on 14 January 2016. A copy of the Opal senior/pensioner card which the plaintiff says he produced to the police officers on 14 January 2016 became Exhibit B in the proceedings. That Opal card included on its reverse the following: “You need to carry your concession entitlement when you travel or fines may apply”. It should be noted that there was a space on the reverse of the Opal card for the holder of it to write their name and telephone number and that was blank in the case of the card produced by the plaintiff.

15. Also tendered through the plaintiff was a photocopy of his Pensioner Concession Card which the plaintiff said he also produced to the police. This became Exhibit C in the proceedings. The front of the card had the following:

NEW SOUTH WALES      Expires

xx xxx

HOANG THANH LE         2016

[ADDRESS]

CRN xxx-xxx-xx5H

Card start xx xxx 2014   DSP

16. The back of the card indicated that it was a Pensioner Concession Card, had a signature on it, stated that the card was not transferrable and also indicated that it was issued by the Australian Government Department of Human Services on behalf of the Department of Social Services. Neither the Opal card (Exhibit B) nor the Pensioner Concession Card (Exhibit C) included a photograph of the plaintiff. The audio/visual recording became Exhibit E in the proceedings and was confirmed by the plaintiff to be accurate and that it had not been altered by him: T10.36.

17. The plaintiff gave his version of the conversation primarily without reference to Exhibit A and there were no material differences in his summary of the account. The plaintiff confirmed that he had presented his Opal card to the police and his Pensioner Concession Card when requested. He said he had been on a disability pension for about three years: T12.19.

18. The plaintiff was asked how he felt when various comments were made to him by the police officers. The plaintiff said that when Constable Willey said to him “Do have a problem listening?” he felt humiliated and low. The plaintiff said that when Constable Willey said to him “so why are you being a smart ass for?”, he felt he was verbally assaulted, had been harassed and was intimidated: T12.48.

19. The plaintiff said that when he was asked to produce his photographic identification he felt confused and that it was an invasion of privacy and harassment. He did not see why he should produce his driver’s licence when he was not in a car. The plaintiff confirmed that the Opal card was his own card: T13.48.

20. Exhibit D in the proceedings was the plaintiff’s Opal card activity statement for the period 5 January 2016 to 27 January 2016. This confirmed that the plaintiff had tapped on at a train station at 7.15 on 14 January 2016 going from Liverpool to Cabramatta.

21. In answer to the question why the plaintiff did not produce his photographic identification when asked, the plaintiff said he did not see why he had to do so as he was not in a car: T17.29.

22. The plaintiff was asked how he felt when Constable Willey called him “champ” a number of times. The plaintiff said he felt he had acted in a well-mannered way and that the use of the word “champ” made him feel humiliated and low, particularly as it was used in front of Constable Doss. He said that as the conversation occurred with the police, there were other passengers around who walked past him who were standing on the platform. The plaintiff said that when he was approached by the police there was a train waiting on the platform and that he had not entered it as he was waiting outside in the fresh air. The plaintiff was asked how he felt when Constable Willey said they wanted identification “to confirm that this is you, that this card isn’t stolen”. He said he felt detained, that the police were investigating him and that he had no choice but to stay there and that he had lost his freedom: T19.3. The plaintiff said he was concerned that if he had walked off without the police permission that he might be arrested: T19.6. The plaintiff said he was not searched by the police officers.

16. In relation to the comment by Constable Willey to the effect “make sure you spell my name right when you put it on social media”, the plaintiff said that he felt that Constable Willey was making fun of him and was not taking him seriously: T19.48.

17. The plaintiff said that when the police indicated he was free to go he headed up the stairs and the two police officers followed him. He noted that the police officers did not approach other passengers to ask questions of them: T20.11.

18. The plaintiff said that he left Platform 3 to proceed to Platform 1 where there were other trains. He said that during the delay with the two police officers that he had missed one train to the best of his recollection.

19. The plaintiff gave evidence that one year later he felt he could not catch a train without being in fear of being humiliated, harassed, intimidated and searched. He said the incident was always in his head and it “really irritates me”. He confirmed that no apology had been offered to him by either police officer at the end of the conversation.

20. The plaintiff was asked questions about whether he saw the two police officers, Constable Willey and Constable Doss, proceeding back to Constable Stoker. He said he saw them going in the direction of Constable Stoker but did not see them talking to him.

21. The plaintiff indicated that his trust of police had been seriously affected by the incident. He said he felt he had been mistreated by police and it was not safe to be around them: T22.27.

22. The plaintiff said he was born in December 1992 and was thus about 24 at the time of the incident.

Cross-examination of the plaintiff

30. The plaintiff was cross-examined in relation to the presence of Constable Stoker at Liverpool Railway Station on 14 January 2016 and it was suggested to him that he may not have seen Constable Stoker at all: T34.42. The plaintiff confirmed that Constable Stoker was present and stated that he believed that he was “at the barriers the whole time”: T23.6-.37.

31. The plaintiff was then cross-examined in relation to the steps which were necessary to activate the record function on his mobile telephone. It was suggested to the plaintiff that he had concealed the recording which he denied: T25.18; 26.5.

32. The plaintiff was then cross-examined in relation to his prior dealings with police. The plaintiff’s “court history convictions” document became Exhibit D in the proceedings. This shows that the plaintiff had a number of convictions for various criminal offences between 2011 and 2014. The exhibit shows that the last conviction of the plaintiff was in August 2014 for “not state name or address to an authorised officer” and “not produce evidence of concession entitlement – adult”. It was said that the document went primarily to the question of damages as the plaintiff had had numerous prior dealings with police.

33. The plaintiff was then cross-examined about his Opal card and Pensioner Concession Card and it was put to him that a police officer could not tell they were his cards on their face without more. The plaintiff did not agree with this and said that questions could have been asked in relation to the details appearing on the cards: T29.35. The plaintiff conceded that it was possible that a person could memorise the details on the card and relay them back to a police officer: T30.17.

34. The plaintiff gave evidence that he had a feeling that Constable Stoker had directed Constables Willey and Doss to him: T31.44, 32.24. However, he confirmed that he suffered the distress and humiliation of which he gave evidence because of the conduct of Constable Willey, not because of what Constable Stoker did on 14 January 2016: T32.19.

35. The plaintiff was cross-examined in relation to his assertion that in a prior incident with police officers including Constable Stoker that he had been “pushed” by one of the officers. It was put to the plaintiff that he was making it up that he was pushed and that it did not appear in his 2015 Statement of Claim. The plaintiff said that he had told his solicitor that he had been pushed from behind by one of the officers: T34.3.

36. It was again put to the plaintiff that on 14 January 2016 he did not see Constable Stoker at all at Liverpool station and the plaintiff denied this. The plaintiff also denied that Constables Willey and Doss had approached him when they had alighted from the train when it arrived at Platform 3 at the Liverpool station: T35.16.

37. It was put to the plaintiff that when he first saw Constables Willey and Doss that he walked away from them. The plaintiff initially said that he did not recall walking away from them but said he may have done so as he was intending to go up the stairs to another train on Platform 1: T35.39.

38. Although initially the plaintiff said that the video recording which he had made had the full conversation with the two police officers on it (T13.4), he then conceded that one of the officers had asked him whether he had a ticket which he said he did not have: T35.47-36.14. The plaintiff said he started the recording after that conversation. He denied that he was trying to provoke the police officers and wanted to argue with them: T36.20.

39. It was also put to the plaintiff that he had approached Constable Stoker in 2015 and initiated conversations on occasions including saying that he (the plaintiff) had just got back from a holiday and had “lots of money” because of the claim against Constable Stoker. All these were denied by the plaintiff: T37.11-.25.

40. The plaintiff was asked whether he had his driver’s licence with him when he was approached by Constables Willey and Doss on 14 January 2016 and he said he thought he did: T39.24. It was suggested that if he had produced his photo identification then his dealings with the police would have been very limited. The plaintiff did not agree with this and said that he thought the police would have compared the documents and possibly checked the validity of his driver’s licence on their radio: T41.3.

41. It was suggested to the plaintiff that he was setting the police officers up to sue them and argue with them and he was not intimidated by them at all. The plaintiff denied this and said he was intimidated by Constable Willey on 14 January 2016: T42.50, T43.42, T44.8.

42. The plaintiff was asked questions about conversations with Constable Willey since 14 January 2016 and confirmed that he had a conversation with him: T44.40. The plaintiff said that he did not recall any other conversations other than that conversation: T46.10.

43. It was put to the plaintiff that he saw Constable Willey on 15 February 2017 (the day before giving his evidence) at Liverpool station and had a conversation with him. The plaintiff initially denied the conversation (T46.21, T47.7) and then said he did not recall it. It was put to the plaintiff that he walked between Constable Willey and a passenger Constable Willey was talking to and he denied it:  T47.21. He said he did not recall seeing Constable Willey yesterday: T48.42.

44. The plaintiff was then shown some police chest video evidence which became Exhibit 3 which was from the police chest videos of Constable Willey and Constable Acar. The plaintiff said that having seen the video he recalled the conversation: T49.40.

45. The video evidence showed the plaintiff walking between the police officers and another member of the public on 15 February 2017 (the day before the plaintiff’s cross-examination) and touching the member of the public on the arm. The plaintiff said that he knew the other member of the public. The plaintiff was then given a direction by Constable Acar to move away while they were dealing with the other member of the public: Exhibit 3. The film shows the plaintiff having a conversation where he asked Constable Willey for his name.

46. The plaintiff said that he no choice but to walk between Constable Willey and the member of the public as he was looking for a seat: T52.36-53.7.

47. In my view, this part of the evidence of the plaintiff did not assist his credibility. I find it inconceivable that the plaintiff could not have recalled having a conversation with Constable Willey and another police officer the day before he was to commence his case where the central police officer involved in it was Constable Willey. In my view, the plaintiff was attempting to limit any suggestion that he had further contact in recent times with Constable Willey or that he had been near Constable Willey and had a conversation with him. It seems to me that the plaintiff gave this evidence to support the suggestion that he was intimidated by Constable Willey and that he was in fear and was apprehensive of his potential future dealings with police. It is quite clear to me from the evidence which is Exhibit C that the plaintiff walked between the police officers and a member of the public when the police officers were talking to the member of the public and had a conversation with Constable Willey on 15 February 2017. I reject the plaintiff’s evidence that he was not 100% sure it was Constable Willey: T54.27.

48. It was then put to the plaintiff that up to the time on 14 January 2016 when Constable Willey said to him “No you’re not [under arrest] you’re being detained”, the plaintiff thought he was free to go. The plaintiff denied this and said that if he thought he was free to go he would have left: T56.26.

49. In my view, some caution should be exercised in relation to accepting the evidence of the plaintiff, except where it is confirmed by independent evidence. In particular, I do not think that the plaintiff was being frank in relation to his dealings with Constable Stoker and Constable Willey before and after 14 January 2016. This is confirmed by the plaintiff’s evidence about the 15 February 2017 incident. In my view the best evidence of what occurred on 14 January 2016 is the recording which the plaintiff made and Exhibit A.

50. I also do not accept that the plaintiff is apprehensive and fearful in relation to his dealings with police after the incident on 14 January 2016. I do not accept that the plaintiff felt low and humiliated by being told by Constable Willey that he was detained. This appears contrary to the film, Exhibit E, where the plaintiff appears confident and not intimidated at all. I do not accept that the plaintiff has an ongoing fear in relation to his dealings with police arising from the 14 January 2016 incident.

Evidence of Senior Constable Michael Stoker

51. Constable Michael Stoker gave evidence in the proceedings. He was stationed at the Bankstown Police Transport Command.

52. Constable Stoker gave evidence that he had had various interactions with the plaintiff, Mr Le, in 2015. These included an incident in early 2015 at Cabramatta Railway Station where he had struck up a conversation with the plaintiff and then formed a suspicion sufficient to search the plaintiff. Later there was a further incident at Liverpool Railway Station where the plaintiff was asked for his ticket and he walked off and police rushed after him and spoke to him. A further incident occurred later in 2015 where a conversation occurred to the following effect when the plaintiff walked up to Constable Stoker:

Plaintiff: “Thanks for the holiday”.

Constable Stoker: “Okay. Sure”.

Plaintiff: “Got all the money I got from suing the police”.

Constable Stoker: “Okay. Sure. Goodbye”.

The plaintiff then walked away: T65.1.

53. Constable Stoker was asked whether he was working on 14 January 2016 and he confirmed that he was. However, the evidence which emerged from Constable Stoker was that he was not working in the vicinity of the Liverpool Railway Station at 7.15pm as the plaintiff alleges.

54. Exhibit 4 in the proceedings was the Police Transport Command Tasking System Record for Constable Stoker for 14 January 2016. This computer record was prepared from written records which Constable Stoker prepared during his working day. Exhibit 4 establishes that Constable Stoker was present at Liverpool Railway Station from 3.20pm to 3.30pm but was not working at 7.15pm, his shift having finished at 6pm. Constable Stoker gave evidence that after he finished his shift at 6pm he went to visit a sick colleague in hospital: T66.17.

55. A further document was tendered showing the roster for the Police Transport Command South-South West Sector for 14 January 2016 which became Exhibit 5 in the proceedings. This document establishes that Constable Stoker was on transport duty for the shift between 6am and 6.30pm.

56. Constable Stoker confirmed that he was not at Liverpool station at 7.15pm on 14 January 2016 and did not walk past or see the plaintiff: T67.6.

57. In cross-examination Constable Stoker was asked about the earlier incidents in 2015 involving Constable Stoker and the plaintiff. Constable Stoker said that during these he searched the plaintiff’s bag and was present when the plaintiff’s identification was checked on the radio. Constable Stoker said that he was aware that the plaintiff had made a claim against the police but did not know the outcome of the claim.

58. Constable Stoker appeared to me to be an honest and forthright witness and I accept his evidence. His evidence, together with Exhibits 4 and 5, establishes that he was not present at Liverpool Railway Station at or about 7.15pm on 14 January 2016 as the plaintiff alleges. I accept that evidence. This is a further significant blow to the plaintiff’s credibility. It will be recalled that the plaintiff gave evidence that Constable Stoker was present with Constable Willey and Constable Doss on 14 January 2016 and that he believed that the latter two constables may have been instructed by Constable Stoker to approach him to check his travel entitlements.

Constable Willey

59. Oral evidence was given by Constable Mitchell Willey who worked as a police officer with the Bankstown Police Transport Command. He had been at that Command since October 2015.

60. Constable Willey gave evidence that his day to day duties included patrol of trains and checking tickets often combined with operations by the Police Drug Squad. Constable Willey said that he looked at around 100 tickets per shift.

61. On 14 January 2016 Constable Willey said that he and Constable Doss proceeded to Liverpool Railway Station by train as there was a drug dog operation to be undertaken. He gave evidence that he and Constable Doss travelled to Liverpool station from Fairfield station by train and alighted at Platform 3 where the train terminated. Constable Willey said that he saw the plaintiff who was near the seating benches towards the centre of the platform: T70.47.

62. Constable Willey said that he did not know the plaintiff at the time and that the only police officers present were Constable Doss and him: T71.1.

63. Constable Willey gave evidence that when he and Constable Doss alighted from the train on Platform 3 the plaintiff was standing there. He looked at the two police officers and then turned away and then walked towards the train which was stationary on Platform 3: T71.9.

64. Constable Willey gave evidence that he had reviewed the transcript which was Exhibit A in the proceedings and also viewed and listened to the recording made by the plaintiff which became Exhibit E in the proceedings. Constable Willey said, that in his view, there should be some minor corrections to Exhibit A. These were as follows:

1. In line 7 Constable Willey said that he did not say “Could you just get your Opal card out” but rather “Could you produce your Opal card”;

2. At line 9 he says he did not say “… OK put your complaint in” but rather “… OK put in a complaint”;

3. Constable Willey confirmed that the statement made at line 10 was made by him and not Constable Doss;

4. Constable Willey said that Exhibit A did not include the entire conversation. Prior to line 1 he said that there was a conversation as follows:

Q.  What was the first part of the conversation as you recall it?

A.  First part of the conversation was Constable Doss approaching Mr Le asking for his Opal card, sorry for a ticket. Mr Le said, "I don't have a ticket." Constable Doss has then proceeded with introducing himself and warning him as per LEPRA as we usually do. During which Mr Le said, "They don't sell paper," words to the effect of, "They don't sell paper tickets anymore." I believe that's when I've said, "Do you have an Opal card," and continued on from there. (T72.9-.15).

5. In relation to line 10 Constable Willey said that he did not say “If we ask for your ticket …” but “If he asks for your ticket …”;

6. Constable Willey did not recall what was occurring in the gap in the recording shown in line 15 of Exhibit A.

65. Constable Willey was asked why he requested the plaintiff to provide photo identification or a driver’s licence. He gave evidence that he did this to prove to himself that the plaintiff was entitled to travel on a concessional basis: T72.35. He said he did not believe that merely having the plaintiff’s name was enough to prove his entitlement.

66. Constable Willey also said that he had other reasons for requesting from the plaintiff photo identification as a result of a suspicion he had formed. He described these reasons as follows:

1. He thought the plaintiff had been evasive in not handing over his Opal card immediately and he thought this was odd: T72.39;

2. The train on Platform 3 had terminated on the platform and it was not going for a while and there were not many people in the vicinity on the platform: T72.42;

3. Quite often members of the public were using pension or Opal cards which were not their own: T72.44;

4. Most people were happy to show something like photographic identification whereas Mr Le was not: T73.11.

67. Constable Willey later added two more bases for his suspicion:

1. The plaintiff’s young age: T127.24: T133.1 cf T130.29;

2. The fact the plaintiff was on a pension whereas he appeared young and fit: T134.21; T135.5.

68. Constable Willey regarded the plaintiff as obliged to produce photo identification or other evidence in the light of these concerns which he held, to provide evidence of Mr Le’s entitlement to the concession. The pension card itself had no photograph on it and it was hard to establish that this was the card of the person in question. Constable Willey said he wanted to establish whether the concession card had been stolen: T73.19.

69. Constable Willey confirmed that he checked the plaintiff’s name and address and the date of birth and made radio enquiries. In relation to line 30 of Exhibit A where Constable Willey said “Alright, well you’re gonna have to wait here while we confirm who you are”, he said he did this so the enquiries could be made.

70. In relation to line 33 of Exhibit A and the request of the plaintiff as to what the initial “M” stood for in Constable Willey’s first name, Constable Willey said that the police practice was to provide the rank and surname of the police officer and there was no need to provide the first name for reasons of safety of the officer: T73.45.

71. Constable Willey gave evidence that his radio enquiries and the plaintiff’s confirmation of his date of birth resulted in him having no further suspicion that the concession card was not the plaintiff’s. This led him to inform the plaintiff that he was “free to go”. Thereafter, Constable Willey said that the plaintiff followed him up the stairs and alongside him and was recording. Constable Willey said that he and Constable Doss then participated in the drug dog operation.

72. Constable Willey was then asked questions in relation to his contact with the plaintiff since 14 January 2016. He said there were two incidents. The first was “a few weeks ago” at Liverpool Railway Station where Mr Le walked through the barriers and said to Constable Willey “How’s your day going officer?”. Constable Willey said he ignored the question: T74.46.

73. Constable Willey also gave evidence that he had had contact with the plaintiff on 15 February 2017 (the day before he gave his oral evidence) at Cabramatta Railway Station where the plaintiff had a conversation with him and then proceeded down the platform and interposed himself between Constable Willey and Constable Acar and a member of the public they were talking to. That interaction was caught on police body cameras which became Exhibit 3 in the proceedings. During the course of the interaction Constable Acar directed the plaintiff to move on whilst they were dealing with the member of the public who had apparently not tapped on with his Opal card and who was known to the plaintiff: Exhibit 3.

68. Constable Willey was then subject to cross-examination. He confirmed that in some circumstances the provision of a concession card with the name of a person was not sufficient to establish identification. He denied that he had received advice or direction from senior officers in the Police Force that police had powers to ask for photographic identification as well as a traveller’s Opal card and concession card. Constable Willey said that he could not comment on whether it was standard practice within the Police Force to ask for photographic identification in addition to the Opal card and the concession card: T80.13.

69. Constable Willey estimated that in the last few days of working he might have asked for photographic identification from a train traveller on about five occasions as he did not believe that the name on the card was sufficient. Constable Willey said that whether he asked for photographic identification depended on the circumstances he was faced with: T81.34-82.15.

70. Constable Willey was then cross-examined in relation to his reasons for asking for photographic identification from the plaintiff on 14 January 2016.

71. In relation to the suggestion that the plaintiff had been “evasive” in handing over his Opal card, Constable Willey said that he formed the opinion that the plaintiff did not want to provide a ticket and was slow in handing over his Opal card: T82.29-83.28. He denied that he merely thought the plaintiff was a “smart arse” and not evasive. Constable Willey said that the plaintiff should have produced the Opal card immediately and not been asked for it a second time: T83.26.

72. In relation to the fact that the train had terminated on Platform 3 yet the plaintiff had remained in the vicinity, Constable Willey confirmed that this added to his suspicions. It was put to Constable Willey that not everyone gets off a terminating train until an announcement is made and that the plaintiff’s video recording showed that some travellers alighted from the train after an announcement and well after the first interaction with Mr Le. Constable Willey confirmed that at least one female traveller alighted from the train after the first dealings with Mr Le but he could not recall other travellers: T83.39-84.20.

73. The next factor relied upon by Constable Willey as supporting his suspicion was that there were not many people on the platform. In cross-examination, Constable Willey confirmed that he could not recall if there were people on the platform and that all he remembered seeing was Mr Le and that around him “was vacant”: T91.35. Constable Willey said that if there were 100 people on the platform at the relevant time that would cause a difference in him developing a suspicion compared to just a few people: T93.39. This would indicate that there was more of a reason for Mr Le to be on the platform: T93.46. In the end, Constable Willey confirmed that Mr Le had a valid reason to be at the railway station regardless of how many people were present at the time: T94.24.

74. The next reason put forward by Constable Willey in forming his suspicion was that it was his experience that people used Opal and concession cards which were not theirs: T98.20; T100.40-.45.

75. A further matter relied upon by Constable Willey was that in his view there was a reluctance by Mr Le to give photographic identification and he thought that was suspicious because most people were happy to produce it: T100.47; T101.19. Constable Willey relied on the plaintiff’s reluctance to provide further evidence that he was entitled to a concession. Constable Willey found Mr Le’s reluctance to be “odd”: T102.38. Constable Willey conceded that Mr Le may have had a perfectly good reason not to provide photographic identification: T 102.44. Constable Willey gave evidence that when he requested the photographic identification he was purporting to act under Regulation 77C of the Passenger Transport Regulation whereas after the plaintiff declined to provide the identification he believed he was proceeding under Section 11 of LEPRA as he had formed a suspicion on reasonable grounds that the concession card was stolen: T106.20.

76. In due course Constable Willey was cross-examined in relation to the plaintiff’s age being a factor leading to his suspicion. Initially Constable Willey said that he could not recall (T120.37). He then said that “it could have added to it”: T120.41. In the end Constable Willey gave evidence that the plaintiff’s apparent age, in his mid-twenties, was a factor which he took into account in formulating his suspicion: T127.24. Constable Willey then changed his evidence on this issue (T130.29) until ultimately confirming that he would have taken the plaintiff’s age into account: T133.1-.6.

77. The last matter referred to by Constable Willey was that when he saw the pensioner card in the context of the plaintiff appearing to be a “fit, young bloke”, that added to his suspicion: T134.21; T135.6. Constable Willey conceded in cross-examination that he had no way of knowing whether the plaintiff suffered from a physical ailment or a condition of cognitive impairment with mental health issues: T135.25. He also conceded that he was not sure what were the grounds for members of the public to receive disability support pensions: T135.29.

78. Constable Willey denied that he approached Mr Le as the holder of a concession card with prejudice and with a closed mind: T136.24-.36. Constable Willey accepted, however, that he did not give as reasons for forming his suspicion the age and fit looking appearance of the plaintiff in his evidence in chief: T138.1.

79. Constable Willey expressly denied that a factor he took into account in forming his suspicion in relation to Mr Le was that he was of an Asian background: T143.49.

80. Constable Willey confirmed that at line 22 of Exhibit A he had formed his suspicion as to the potential for the concession card to be stolen and that it required further investigation: T147.20.

81. Constable Willey appeared to me to give his evidence in a straightforward and direct fashion. Police officers conduct their duties often in difficult, trying and dangerous circumstances. However, in my view, it was not appropriate for Constable Willey to describe the plaintiff to his face as a “smart ass” at the beginning of their interaction, even if he was irritated by the plaintiff. Police should, wherever feasible, conduct their interactions with members of the public, including on public transport, in a professional and polite way without using language of this nature.

82. Generally I accept Constable Willey as a witness of truth and I believe he gave his evidence honestly. I reject the plaintiff’s submission that he should be regarded as not a witness of truth.

83. In particular, I accept Constable Willey’s evidence that he was present at the railway station on 14 January 2016 only with Constable Doss. This is significant as it further erodes the plaintiff’s evidence that Constable Stoker was present at the time.

84. Having viewed him carefully in giving his evidence and taking into account Exhibit A (the transcript), Exhibit E (Mr Le’s recording) and the various oral evidence, I accept Constable Willey’s evidence that he had an honest suspicion in relation to Mr Le’s identification and that the concession card may have been stolen.

85. I will consider whether there were reasonable grounds for that suspicion in more detail below.

Constable Doss

92. Constable Brayden Doss gave short evidence for the defendant. He said that he had never met Mr Le before 14 January 2016. He also confirmed that Exhibit A, which he had read, correlated with his recollection of what had occurred on the day: T150.38-.45.

The relevant legislation

93. Section 3(1) of the Passenger Transport Act 1990 (NSW) defines “authorised officer” as meaning “an authorised officer appointed under Section 46W or a police officer”.

94. Under the Passenger Transport Act 1990 the Passenger Transport Regulation 2007 was made.

95. In Regulation 69 of the Passenger Transport Regulation 2007 (“the Regulations”) the following definitions are included:

1. “concession ticket” is defined as meaning:

“(a)  in the case of a smartcard—a smartcard that is intended by TfNSW to provide for:

(i)  free travel on public passenger vehicles or trains, or

(ii)  travel on public passenger vehicles or trains at a reduced fare, and

(b)  in the case of any other ticket—a ticket issued free or at a reduced fare.”

2. “ticket” is defined as meaning:

“… an authority to travel on a public passenger vehicle or train that may take any of the following forms:

(a)  a printed ticket,

(b)  a smartcard,

(c)  any other thing issued by or on behalf of the operator of a public passenger service or rail passenger service or TfNSW for the purpose of authorising a person to travel on a public passenger vehicle or train used to carry on the service concerned.”

96. Division 4 of Part 6 of the Regulations provides general provisions in relation to “tickets”. Regulation 77A provides as follows:

“77A   Valid ticket required for travel

(1)  A person must not travel, or attempt to travel, on a public passenger vehicle or train unless the person (or someone accompanying the person) holds a valid ticket for the person’s travel.

Maximum penalty: 5 penalty units.

(2)  This clause does not apply in the case of a person who does not hold a ticket if the person:

(a)  boards a bus at a bus stop, a ferry at a ferry wharf or a train at a station where, at all relevant times before the person boarded, there were no facilities available for the issue of an appropriate ticket, or

(b)  the person is a child of or under 3 years of age.

(3)  In this clause, hold a ticket means be able to produce the ticket on request.”

97. Regulation 77C of the Regulations provides as follows:

“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:

(a)  who is travelling in a public passenger vehicle or train on the authority of a concession ticket, or

(b)  who processes a concession ticket under this Division, or

(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.

(4)  A person may not be prosecuted for offences under both subclause (1) and subclause (3) in relation to the same travel.

(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.

(6)  For the purposes of this Regulation, a person is entitled to a concession ticket if the person is of a class of persons determined by TfNSW as being entitled to the type of concession ticket concerned.” (emphasis added).

98. Regulation 77E of the Regulations provides as follows:

“77E   Inspection of tickets

(1)  A person must make his or her ticket available for inspection by an authorised officer on that officer’s request if the person:

(a)  is on, or has just left, a public passenger vehicle, or

(b)  is in or has just left the paid area of a ferry wharf used for the purposes of, or in connection with, a regular ferry service, or

(c)  is on a train or is in or has just left the restricted area of a station.

Maximum penalty: 5 penalty units.

(2)  A person who has just left the paid area of a ferry wharf used for the purposes of, or in connection with, a regular ferry service or the restricted area of a station does not commit an offence under this clause if the person’s ticket has been:

(a)  captured by an automatic gate or other equipment provided to read or record any details on the ticket, or

(b)  given to an authorised officer or employee of the operator of the ferry service or the rail passenger service concerned.”

99. In Section 3 of LEPRA (as in force at 14 January 2016), “identity” is defined as meaning “the name or residential address of the person (or both)”. The term “indictable offence” is defined in Section 3(1) of LEPRA as meaning “an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on an indictment”.

100. Sections 11, 12, 13 and 19 of LEPRA are as follows:

“11   Identity may be required to be disclosed

(cf Crimes Act 1900, s 563)

(1)  A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.

(2)  A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.

Note.

Safeguards relating to the exercise of power under this section are set out in Part 15.” (emphasis added).

“12   Failure to disclose identity

(cf Crimes Act 1900, s 563)

A person who is requested by a police officer in accordance with section 11 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request.

Maximum penalty: 2 penalty units.”

“13   False or misleading information about identity

(cf Crimes Act 1900, s 563)

A person must not, without reasonable excuse, in response to a request made by a police officer in accordance with this Division:

(a)  give a name that is false in a material particular, or

(b)  give an address other than the person’s full and correct address.

Maximum penalty: 2 penalty units.”

“19   Power of police officer to request proof of identity

(cf Crimes Act 1900, s 563)

A police officer may request a person who is requested under this Part to disclose his or her identity to provide proof of his or her identity.” (emphasis added).

Issues for determination

101. It is not in dispute that the police officers Constable Willey and Constable Doss detained the plaintiff for a short period on Platform 3 on Liverpool Railway Station on 14 January 2016. The real question for determination is whether that detention was with lawful authority.

102. The issues to be determined would appear to be as follows:

1. Did Regulation 77C of the Regulations entitle the police officers to detain the plaintiff after he had produced a ticket and a concession card and to demand photo identification?

2. If not, did Constable Willey have an honest suspicion under Section 11(1) of LEPRA that Mr Le was a person who may be able to assist in the investigation of an alleged indictable offence because he was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred?

3. If the answer to (b) is yes, did Constable Willey have reasonable grounds for that suspicion?

4. If the answer to (b) and (c) is yes, did Constable Willey have the entitlement under Section 19 of LEPRA to request the plaintiff to provide proof of his or her identity in addition to the ticket and concession card?

5. If the above questions are answered in the negative, was the tort of false imprisonment committed by Constables Willey and Doss?

6. If so, what damages, if any, should be awarded to the plaintiff?

The parties’ submissions

103. At the conclusion of the evidence the legal representatives for the parties handed up outlines of written submissions and also made oral submissions.

The plaintiff’s submissions

104. The submissions made on behalf of the plaintiff were, in summary, as follows:

1. Although the plaintiff was mistaken in relation to the presence of Constable Stoker on the platform at Liverpool Railway Station on 14 January 2016 and did not initially concede his interaction with Constable Willey on 15 February 2017, he should not be regarded as an unreliable witness nor should his evidence as to the impact upon him of the incident not be accepted. It was submitted that it was believable that the plaintiff was humiliated, distressed and intimidated by the incident;

2. Constable Willey should be found to be a witness who should not be believed on his oath. It was submitted that the reasons put forward by Constable Willey for his suspicion were irrational and illogical and assisted in reaching the conclusion that he was lying in giving his evidence;

3. Regulation 77C of the Regulations should not be construed in the manner asserted by the defendant. The plaintiff complied with the Regulation by producing his Opal card and his concession card and there was no requirement for him to produce any other form of identification. In particular, it was inappropriate for the police officers to seek photographic identification or to detain him until further enquiries were made;

4. Accordingly, Constables Willey and Doss could only have been acting under Sections 11 and 19 of LEPRA;

5. Constable Willey should not be accepted in his evidence that he had an honest belief that the concession card produced by the plaintiff may have been stolen;

6. Further, the reasons put forward by Constable Willey for the suspicion which he claims he held were not reasonable, either looked at individually or together. The suspicion that the concession card may have been stolen, on the reasons given, was based on flimsy material or formed in a process of reasoning which relied on tenuous connections and thus there was no reasonable suspicion under Section 11. Reliance was placed on Hyder v Commonwealth of Australia [2012] NSWCA 336 at [14]-[19];

7. There was a false imprisonment of the plaintiff by the police officers as they had informed him that he was detained. Although this was only for a short period of time it fulfilled the requirements for the tort of false imprisonment;

8. The conduct of the police had a substantial effect on the plaintiff. The following was submitted: “The stop, questioning, seizure, dishonest to demand and insults, detention was no mere human error or poor judgment or mistake. It was high handed contemptuous brazen dishonest act …” (paragraph 44 of the plaintiff’s submissions). Reliance is placed on a number of factors in the interaction between the plaintiff and the police including the plaintiff being called by Constable Willey “smart ass” and “champ”. It was submitted that the plaintiff was embarrassed, distressed and humiliated in being spoken to and treated in the way he was when he was going about his normal business. See also paragraph 45 of the plaintiff’s written submissions;

9. The facts warranted general damages for false imprisonment, aggravated damages and exemplary damages.

The defendant’s submissions

105. The defendant made the following submissions, in summary:

1. Constable Stoker was not on the platform as alleged. Also the plaintiff had interaction with Constable Willey on 15 February 2017, the day before he gave his evidence in the case: Exhibit 3. The plaintiff’s evidence that Constable Stoker was present on the day and his failure to agree promptly that he had engaged in interaction with Constable Willey on 15 February 2017 were significant matters which went to his credit. The plaintiff should not be accepted on any matters except where they are supported by independent evidence such as Exhibit A (the agreed transcript) or Exhibit E (the recording of the incident);

1. Police are “authorised officers” within the meaning of Section 3(1) of the Passenger Transport Act 1990. It is clear that Constables Willey and Doss were authorised officers for the purposes of the Act and the Regulations;

2. Constable Willey suspected that the concession card of the plaintiff was stolen, and accordingly that Mr Le may have committed an indictable offence being: Sections 192C (obtaining property belonging to another), Section 192E (fraud) and Section 192G (intention to defraud by false or misleading statement) of the Crimes Act 1900 (NSW): paragraph 21 of the defendant’s submissions. Accordingly, the indictable offence requirement in Section 11 of LEPRA is satisfied;

3. The requirement by police for Mr Le to produce photographic identification evidence and to wait for a short period after he had produced his Opal and concession cards was lawful in that the police were exercising their powers under Regulation 77C of the Regulations to require Mr Le to produce “evidence” of his entitlement to the concession ticket;

4. Further, in acting in the way he did, Constable Willey had an honest suspicion that the concession card may have been stolen and that suspicion was based on reasonable grounds. Accordingly, Constable Willey was exercising his powers properly under Sections 11 and 19 of LEPRA in requesting Mr Le to disclose further evidence of his identity and to wait while enquiries were made;

5. In evaluating what was reasonable, the incident must be judged by reference to the pressure of the events and the agony of the moment, not by reference to hindsight, Woodley v Boyd [2001] NSWCA 35 at [37];

6. There was no physical restraint by the police of the plaintiff. It was also submitted that there was no false imprisonment as the plaintiff’s freedom of movement was not totally restrained: defendant’s submissions paragraph 8;

7. Constable Willey should be accepted as a witness of truth;

8. To the extent the conduct of the police officers was not justified, given Mr Le was asked to wait for a very short period on the railway station platform, the plaintiff cannot prove that he has suffered any loss or damage. No damages should be awarded;

9. The facts did not justify the award of either aggravated or exemplary damages;

10. As to aggravated damages, the transcript and the recording were not consistent with the plaintiff being distressed or humiliated. On the contrary, the plaintiff was assertive, confident and apparently unaffected by his interaction with police. In relation to exemplary damages, these should not be awarded. Such damages are awarded as punishment, to deter such conduct in the future and to express detestation for the action of a party. There was no conscious wrongdoing in a contumeliously disregard of another’s rights or high-handed, outrageous and contemptuous action by the police. Constable Willey acted honestly at all relevant times:  defendant’s submissions paragraph 33.

Findings of fact

106. I make the following findings of fact, having regard to all of the evidence:

1. The plaintiff was standing on Platform 3 at Liverpool Railway Station on 14 January 2016 at about 7.15pm. At that time he had a valid Opal card and a valid Pensioner Concession Card;

2. Constables Willey and Doss arrived at Liverpool Railway Station by a train from Fairfield Railway Station which terminated there. Constable Stoker was at the time neither with them nor at Liverpool Railway Station. I prefer the evidence of Constable Willey and Constable Doss that Constable Stoker was not with them and was not at Liverpool Railway Station. It is also consistent with Exhibits 4 and 5;

3. I accept that Constable Willey saw the plaintiff waiting on Platform 3 and that when the police alighted from the train that the plaintiff walked towards the train. I find that Constables Willey and Doss approached the plaintiff and had a conversation with him;

4. The conversation which Constables Willey and Doss had with the plaintiff was in substance in the form of Exhibit A which I have set out above. Exhibit A was confirmed by the plaintiff and Constable Doss. Constable Willey asserted that minor corrections should be made to Exhibit A but I do not consider that, even if these were accepted, they would change the substance of what is in Exhibit A. In my view Exhibit A should be regarded as in substance the main conversation which occurred between the parties;

5. In addition, immediately before the material in Exhibit A, Constable Doss asked for the plaintiff to produce his ticket and the plaintiff said he did not have a ticket. It is probable that the plaintiff said words to the effect that there were no more paper tickets. The conversation between the relevant participants then continued in substance in the form of Exhibit A;

6. I accept the evidence of Constable Willey that from the developing conversation with the plaintiff he formed the honest suspicion that the Pensioner Concession Card which the plaintiff produced may not have been his and may have been stolen. I observed Constable Willey giving his evidence and I believe his evidence on this issue was given in an honest and straightforward fashion and I accept it. The reasons which he gave for that suspicion appeared honest and he was not shaken in relation to having that honest belief in cross-examination. I accept his evidence in this regard;

7. I accept the evidence of Constable Willey that from line 22 in the transcript in Exhibit A he regarded the plaintiff as detained and not at liberty to leave: T147.14;

8. I find that Constable Willey honestly held the reasons for the suspicion that the concession card was stolen which he asserted, namely:

1. He regarded the plaintiff as being evasive in handing over his Opal card when the police asked him for a ticket and he said he did not have one;

2. The plaintiff was waiting on Platform 3 in circumstances where the train which had arrived which carried Constable Willey and Constable Doss was a terminating train and it would not have been due to leave for some time;

3. There were not many people on the platform that Constable Willey could see;

4. That quite often Constable Willey found that people used pension cards and Opal cards which were not their own;

5. That the plaintiff refused to show any photographic identification when requested whereas most people were happy to show something to show their proof of entitlement;

6. The age of the plaintiff;

7. The fact that the plaintiff produced a Pensioner Concession Card whereas he appeared to be young and fit.

9. I find that Constable Willey did not take into account in forming his suspicion the plaintiff’s Asian heritage. I accept Constable Willey’s evidence to this effect;

10. The interaction between Constable Willey and Constable Doss and the plaintiff occurred for a little over four minutes and the circumstances where Constable Willey regarded the plaintiff as detained and not free to go occurred at about one minute 45 seconds into the interaction;

11. I find that the plaintiff was not apprehensive or humiliated by the incident but conducted himself with assertiveness, confidence and seemed comfortable in asserting his rights;

12. I find that neither Constable Willey nor Constable Doss acted in a high-handed, outrageous or detestable fashion in contumelious disregard of the plaintiff’s rights or knowingly showed contempt for the rights of the plaintiff;

13. I will consider whether the suspicion of Constable Willey was based on reasonable grounds further below.

Consideration

Authorised Officer

107. I find that Constable Willey and Constable Doss were authorised officers (as they were police officers) under Section 3(1) of the Passenger Transport Act 1990 and the Regulations.

Indictable offence

108. I find that the suspicion by Constable Willey that the concession card may have been stolen was sufficient for Mr Le to be a person who may be able to assist in the investigation of an alleged indictable offence because he was at or near the place where the alleged indictable offence occurred, whether before, when or soon after it occurred within Section 11 of LEPRA. The indictable offences in question are referred to by me above.

Regulation 77C

109. I prefer the construction of Regulation 77C which was advanced by the plaintiff to that advanced by the defendant. I was not referred to any authorities on the proper construction of this Regulation.

110. At common law a person has a right to a bundle of rights which are commonly called the “right to silence”. This bundle of rights includes the right of a suspect not to answer police questions, the right not to produce potentially incriminating documents when demanded and the right not to be detained without lawful authority: see R v Director of the Serious Fraud Office; ex parte Smith [1993] AC 1 at 30-1; Hammond v The Commonwealth (1982) 152 CLR 188 at 197-198; Hetty v The Queen (1991) 173 CLR 95 at 99; Hyder v The Commonwealth [2012] NSWCA336 at [13].

111. In Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32 at [34]-[35], when considering Section 11 of LEPRA, Fullerton J in the New South Wales Supreme Court held that Section 11 of LEPRA abrogated the right to silence. Her Honour held that Parliament intended to abrogate the right to silence to the extent that a person is required to provide their identification details to police in the circumstances provided for in the section.

112. Similarly, Regulation 77C in my view alters the right to silence by permitting an authorised officer such as a police officer to direct a person to produce to the police officer evidence that the person is entitled to the concession ticket and the person given such a direction must immediately comply with it.

113. However, the passenger must only provide “evidence” that the person is entitled to the concession ticket when required. The express reference in Regulation 77C(2) to “evidence (for example, the person’s pensioner or student concession card)” indicates to me that the production of a Pensioner Concession Card together with the Opal concession card is satisfaction of the requirements in the Regulation. A Pensioner Concession Card is expressly referred to as an example of the evidence contemplated. In my view, contrary to the submission on behalf of the defendant, there was not an entitlement in a police officer under Regulation 77C(2) to request evidence in addition to the person’s Opal card and Pensioner Concession Card, unless the concession card was not held but other relevant evidence was possessed showing an entitlement to the relevant concession.

114. In my view, if a person was obliged to produce further evidence, such as photographic identification evidence, this would have been clearly provided for in the Regulation. I do not agree with the defendant that the Regulation is clear on its face in this regard.

115. The defendant submitted that under the Regulation a police officer:

1. Could request additional evidence apart from a Pensioner Concession Card; and

2. Could detain the person until that evidence was produced.

116. In answer to the question where, on the defendant’s construction, was the limit to the time a person could be detained or the evidence which could be demanded from them by an authorised officer, it was submitted that this was not a matter for the court to determine but the present facts fell within the Regulation. It is my view that the fact that there is in the Regulation no reference to a person being detained or the evidence which could be required of them is a strong factor negating the construction for which the defendant propounded. In my view much clearer words are required to give a police officer the very wide power asserted. The power to detain an elderly person who does not have a driver’s licence or other photographic evidence until the authorised officer was satisfied from the evidence produced, would result from the defendant’s construction. As a common law right is altered by the Regulation, in my view any such power in that form would need to have been stated in much clearer terms.

117. Accordingly, in my view the detention of the plaintiff after he was requested to produce photographic identification and while the police made further enquiries where the plaintiff had produced his Opal card and Pensioner Concession Card was not legally justified under Regulation 77C of the Regulations.

Sections 11 and 19 of LEPRA

118. I have found above that Constable Willey had a suspicion that the concession card held by the plaintiff may have been stolen.

119. I reject the plaintiff’s submission to the contrary that no such honest suspicion was held. See also Azar v DPP [2014] NSWSC 132 at [26]-[29]; George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 115-117.

120. In my view the real issue is whether Constable Willey suspected on reasonable grounds that the concession card may have been stolen.

121. The words “suspects on reasonable grounds” in Section 11 of LEPRA need to be considered in the light of the facts of this case. In George v Rockett, above, at 115-116 the High Court stated as follows:

“In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v Thorpe [1925] SASR 286, at 291; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663, at 666) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there there are reasonable grounds for suspecting that "there is in any house, vessel, vehicle, aircraft, or place - Anything" and that there are reasonable grounds for believing that the thing "will ... afford evidence as to the commission of any offence".

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303):

"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in subs(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."” (emphasis added).

122. In Hyder v Commonwealth of Australia [2012] NSWCA 336, McColl JA (with whom Hoeben JA agreed) stated the following at paragraph [15]:

“[15] The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:

(1) When a statute prescribes that there must be “reasonable grounds” for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);

(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the “arresting officer”); the arresting officer may not “discharge the … duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant”: George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;

(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that “[t]he arresting officer is held accountable … [and] is the compromise between the values of individual liberty and public order”: O’Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);

(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;

(5) “The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof”: George v Rockett (at 116);

(6) “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”: George v Rockett (at 116);

(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against “what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor [2005] HCA 48 ; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O’Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;

(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O’Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O’Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is “[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?”: Queensland Bacon Pty Ltd v Rees[1966] HCA 21 ; (1966) 115 CLR 266 (at 303) per Kitto J;

(9) “The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist”: New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission[2008] NSWCA 291 ; (2008) 189 A Crim R 559 (at [134]–[135]), per McClellan CJ at CL Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL’s conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission[2009] HCA 49 ; (2009) 240 CLR 319;

(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words “may arrest without warrant” conferred on a public official “an executive discretion” whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock’s reasoning was applied in Zaravinos v New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that “[a]ny constable or other person may without warrant apprehend”), was “not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word ‘may’”; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v New South Wales (at [31]–[33]); Williams v R (at 299) per Mason and Brennan JJ.” (emphasis added).

123. In Azar v DPP [2014] NSWSC 132 Adamson J stated as follows at [26]-[29]

[26] The question whether there are reasonable grounds for suspicion was considered by the High Court in George v Rockett[1990] HCA 26 ; 170 CLR 104. The court said, at [14]:

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees[1966] HCA 21 ; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay (its) debts as they became due” as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303):

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which “reason to suspect” expresses in subs (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes — a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

[27] A suspicion is more than a possibility and less than a belief. Reasonable grounds for suspicion can include information that the officer concerned has been told by another officer. It can include material of a hearsay nature.

[28] In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [75] McHugh J referred to the spectrum of mental states between “suspicion”, “belief” and “knowledge” and quoted the proposition:

Suspicion lives in the consciousness of uncertainty.

[29] The applicable principles regarding the concept of reasonable suspicion have recently been summarised by McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA 336 ; (2012) 217 A Crim R 517 (a false arrest/imprisonment case) at [14]–[19]; see also [54]–[59] per Basten JA. They are also summarised in Street v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unrep), a decision relied on by Mr Ozen on behalf of Mr Azar.” (emphasis added).

124. It is necessary to consider the matters referred to by Constable Willey in his evidence as grounding his suspicion:

1. The plaintiff was evasive – Constable Willey gave evidence that one matter which he took into account was that the plaintiff was evasive in handing his Opal card over where the police officers had already asked for a ticket: T72.39. See also the plaintiff’s evidence at T6.10-.14.

In my view, this matter is not a fact which can reasonably ground the suspicion alleged. The plaintiff was asked whether he had a ticket and he said he did not. He was then asked whether he had an Opal card and he said he did. In my view there is nothing unreasonable in a passenger making a distinction between a ticket and an Opal card. I do not regard that reasonably as giving rise to the suspicion;

2. Platform 3 was a terminating train and that train would not have been due to go out for some time – In my view, the fact the train was a terminating train was not reasonably a relevant factor. The plaintiff could have been intending to catch this train or waiting for an announcement or indication as to when it was leaving. The recording (Exhibit E) shows other passengers on or emerging from the train after Mr Le had been stopped. In my view the mere presence of the plaintiff on Platform 3 with a terminating train could not reasonably ground the suspicion alleged;

3. There were not many other people on the platform – The fact that there were not many other people on the platform is not in my view a matter which could reasonably ground the suspicion held. This may have been because most people had left the terminating train or because other passengers had not arrived to wait for the terminating train to leave. The fact this occurred at 7.15pm is also relevant. In my view that factor is equivocal;

4. The fact that people use pension cards and Opal cards which are not their own – This was a factor according to Constable Willey: T72.44. The fact that there was some misuse of Pensioner Concession Cards and concession Opal cards was not a factor which could reasonably ground the alleged suspicion. Such a comment could apply to many legal requirements and, if relevant to ground a suspicion, would warrant enquiries in relation to every potential passenger using a concession card and concession Opal card. In my view this is not a reasonable basis for the suspicion held;

5. The fact that most people were happy to show photographic identification – This was referred to by Constable Willey at T73.12. In my view, the fact that most people were happy to volunteer photographic identification is not a fact which can reasonably ground the suspicion asserted. The fact that most people may be willing to volunteer information or documents which they were not obliged to cannot create a reasonable suspicion if another passenger chooses not to volunteer something which they were not required to volunteer. Otherwise a person who volunteers to do more than they were obliged to do would be less subject to a suspicion. The plaintiff was, in my view, entitled to assert and maintain his legal rights;

6. The age of the plaintiff – Constable Willey in cross-examination said that a factor which he took into account was the age of the plaintiff: T133.6 cf. 130.29. Constable Willey said that at the time he thought the plaintiff was in his early to mid-twenties: T127.20. In my view, the age of the plaintiff was not a fact which could reasonably ground a suspicion that the concession card may have been stolen. If the contrary view was taken, the mere fact that a passenger was young would be a factor relevant to a suspicion of possession of a potentially stolen card. In my view that was not a reasonable ground for the suspicion in all the circumstances. There does not appear to me to be any rational link between the age of a passenger and the possibility that a concession card is stolen;

7. The fact that Mr Le had a Pensioner Concession Card – Constable Willey gave evidence in cross-examination that a factor relied upon by him was that Mr Le had a concession Opal card and a Pensioner Concession Card in circumstances where he looked youthful and fit: T135.7. In my view, that is not a sufficient fact which can reasonably ground the suspicion held. Mr Le may have had a Pensioner Concession Card for many different reasons including an injury which was not obvious or a psychological limitation or injury. This could not reasonably be assessed by the Constable in the circumstances and I reject the fact that it could reasonably ground the suspicion held.

125. I now must assess all of these matters in a cumulative fashion as Constable Willey said he relied on them together to establish his suspicion. The question therefore arises whether all of these factors together can reasonably ground the suspicion that the Pensioner Concession Card presented by the plaintiff may have been stolen.

126. As the authorities which I have quoted above make clear, in order to have a reasonable suspicion the facts may be quite insufficient reasonably to ground a belief. But some factual basis for the suspicion must be shown. A suspicion that something exists is, according to Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303, more than a mere idle wondering. It is a positive feeling of actual apprehension or mistrust without sufficient evidence. I have looked at the factors carefully and considered them in their context and in the events which faced Constable Willey at the time. I am not satisfied in all the circumstances that the matters referred to and relied upon provided reasonable grounds for Constable Willey to suspect that Mr Le may have been able to assist in the investigation of an indictable offence being obtaining property belonging to another, fraud or intention to defraud by false or misleading statement as asserted by the defendant: see defendant’s submissions paragraph 21. The matters raised, looked at individually and together, do not in my view constitute a reasonable basis for the suspicion. They amount to a tenuous foundation not reasonably based.

127. In my view, the requirements of Sections 11 and 19 of LEPRA have not been made out.

False imprisonment

128. In relation to the tort of false imprisonment, Basten JA (with whom Bathurst CJ and Hoeben JA agreed) stated in State of New South Wales v TD [2013] NSWCA 32 at [50]-[51] as follows:

[50]  In identifying the elements of the tort, the State referred to a statement from C Sappideen and P Vines, Fleming’s The Law of Torts (10th ed, 2011) at [2.80]:

The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person’s confinement or preventing that person from leaving the place in which he or she is.

[51]  In Darcy v State of New South Wales [2011] NSWCA 413, after setting out that passage from Fleming, Whealy JA (with whom Allsop P and Beazley JA agreed) noted that the elements of the tort of false imprisonment “require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment” and that “[u]pon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification”: at [143]. (In contradistinction to the facts in Darcy, there was no question of the respondent consenting to being detained in a prison, even if that were, in principle, possible.)

129. In Ruddock v Taylor (2005) 222 CLR 612 Kirby J stated as follows at paragraph 140:

“[140] Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.

[141] The heavy burden placed on the defendant, at least in contrast to some other torts, is explicable in two senses. First, the onus on the defendant to establish a lawful justification is mitigated to some extent by the fact that a plaintiff must prove that the defendant was a direct cause of the injury, as well as prove the existence of the requisite intent. Secondly, as discussed above, the principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se.”

130. The tort of false imprisonment is actionable per se without damage being proved: Elleray v Rail Corporation NSW [2017] NSWCA 23 at [4].

131. Exhibit A at line 30 indicates that Constable Willey told the plaintiff that he had to wait on the platform while the police officers confirmed who he was. At line 48 of Exhibit A Constable Willey indicated that the plaintiff was being “detained”. Constable Willey gave evidence that he regarded the plaintiff as not free to go from line 22 of Exhibit A.

132. There was no physical constraint of the plaintiff in the present case. However, physical force does not have to be proved. It is sufficient if there is proof by the plaintiff of a restraint imposed by the police officers which amounts to imprisonment by causing the person to be confined and preventing that person from leaving the place in which he or she is. In my view, it was clear from the wording of the police officers that the plaintiff was imprisoned through being detained.

133. Accordingly, in my view the tort of false imprisonment is established.

134. I have found above that there was no lawful authority under Regulation 77C or Section 11 of LEPRA to detain the plaintiff until he produced either photographic identification or other enquiries were made other than the production of an Opal card and the Pensioner Concession Card.

Damages

135. The false imprisonment found in relation to the plaintiff was for a very short period. However, the imprisonment resulted through the unlawful exercise by the police authorities of a power to detain. In my view I must take into account the following:

1. No force was used in the false imprisonment;

2. The plaintiff was not falsely imprisoned in a police van or a police cell or gaol cell;

3. The plaintiff was not manhandled in any way or handcuffed;

4. The period of the false imprisonment was very short.

136. In State of New South Wales v Abed [2014] NSWCA 419, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated the following at paragraphs [230]-[234]:

[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]–[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.

[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lambv Cotogno [1987] HCA 47 ; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40 ; 117 CLR 118 at [ ] (Windeyer J).

[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission [1998] HC 70 ; 196 CLR 1 at [14] (Gray v MAC).

[233] In New South v Riley [2003] NSWCA 208 ; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that “Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing”. However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court’s disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.

[234] In New South Wales v Radford [2010] NSWCA 276 ; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:

[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff’s feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.”

137. Accordingly, aggravated damages are compensatory in nature and are awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like. They are provided to compensate the plaintiff where a wrongful act was aggravated by the manner in which the act was done.

138. In my view, the claim for aggravated damages should fail. I agree that Constable Willey was assertive with Mr Le. I note that Constable Willey regrettably called him a “smart ass”. However, the investigations were in my view honestly undertaken with the belief by Constable Willey that he had the power to do so in the circumstances. In my view Mr Le was not stopped because he was perceived as vulnerable or without legal support or because of his heritage.

139. In relation to the assertion that Mr Le was humiliated, intimidated and put in fear, I reject the suggestion. A review of the transcript (Exhibit A) and of the recording (Exhibit E) shows that Mr Le was confident and assertive as to his rights and continued with the conversation with the police as he mounted the stairs. I accept the defendant’s submissions in this regard: see defendant’s submissions paragraph 32.

140. I also reject any claim for exemplary damages. As indicated above, I have found that Constable Willey acted honestly. There was no suggestion that Constable Doss did not act honestly. In my view there is no basis to award exemplary damages. On the facts of this case there was no conscious wrongdoing in contumelious disregard of another’s rights or high-handed and outrageous behaviour. The police officers appeared to be exercising a power which they believed they had. The plaintiff was detained, but not arrested, for a very short period. In my opinion the facts for exemplary damages are not established and I accept the defendant’s submissions in this regard: see paragraph 33 of the defendant’s submissions.

137. Taking into account the very short period of the false imprisonment and the other factors which I have set out above, I award the plaintiff $3,000 in general damages.

138. Interest is to be awarded for the period from 14 January 2016 pursuant to Section 100 of the Civil Procedure Act 2005 (NSW) and Part 36.7 of the Uniform Civil Procedure Rules 2005. I calculate the amount in question as $201 (using an average 5.75%).

139. The total awarded therefore is $3,201.

140. I will hear the parties on costs. I note that under Section 33 of the Local Court Act 2007 (NSW) the Local Court does not have jurisdiction to hear or determine proceedings for false imprisonment.

Orders

145. Accordingly I make the following orders:

1. Judgment for the plaintiff.

2. The defendant to pay the plaintiff the sum of $3,201.00.

3. Liberty to apply in relation to costs.

4. Exhibits to be returned in 28 days, unless otherwise ordered.

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Decision last updated: 09 March 2017