Royal Caribbean Cruises Ltd v Rawlings

[2022] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4

Hearing dates:

17 August 2021

Date of orders:

4 February 2022

Decision date:

04 February 2022

Before:

Bell P at [1];
Meagher JA at [2];
Leeming JA at [115]

Decision:

(1)   Grant leave to appeal on grounds 1 to 4.

(2)   Allow the appeal.

(3)   As to the proceedings in the District Court: -

(a)   Set aside the judgment for the plaintiff ordered on 22 December 2020.

(b)   Set aside the order for costs made on 19 February 2021.

(c)   Dismiss the statement of claim.

(d)   Order the respondent/plaintiff pay the applicant/defendant’s costs of the proceeding.

(4)   Order the respondent pay the applicant/appellant’s costs of the appeal.

Catchwords:

TORTS – trespass to the person – false imprisonment – defences – where respondent passenger on applicant’s cruise ship – where respondent detained in guest cabin for five days pending return of ship to port where alleged sexual assault would be investigated by local police – whether captain justified in detaining respondent “for the preservation of order and discipline or for the safety of the vessel or the persons or property on board” – whether justification defence in Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413 part of Australian common law – whether that defence requires that captain subjectively believe detention is necessary

PRIVATE INTERNATIONAL LAW – applicable law – choice of law rules – torts – where alleged tort committed on ship on high seas – where applicable law the law of ship’s flag – where law of flag neither pleaded nor sought to be proved – where primary judge applied substantive law of New South Wales

SHIPPING AND NAVIGATION – false imprisonment – alleged sexual assault by passenger on cruise ship on high seas – confinement of passenger by order of captain – captain’s power to detain – whether confinement necessary

Legislation Cited:

Crimes Act 2000 (ACT), Pts 3, 10

Crimes at Sea Act 2000 (Cth), ss 4, 6(2)(a)

Criminal Code 2002 (ACT)

District Court Act 1973 (NSW), s 127(2)

Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A

Merchant Shipping Act 1894, 57 Vict, c 60, s 223(1)

Merchant Shipping Act 1970 (UK) c 36, s 79

Merchant Shipping Act 1995 (UK) c 21, s 105

Navigation Act 2012 (Cth), ss 9, 111, 121, 123

Cases Cited:

Aldworth v Stewart (1866) 4 F&F 957 [176 ER 865]

Anderdon v Burrows (1830) 4 Car & P 210 [172 ER 674]

Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73

CMA CGM SA v The Ship Chou Shan (2014) 224 FCR 384; [2014] FCAFC 90

Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87

Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413

Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106

In Re Hawke (1923) 40 WN (NSW) 58

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

King v Franklin (1858) 1 F&F 360 [175 ER 764]

Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54

Prouten v Chapman [2021] NSWCA 207

Scott v Wakem (1862) 3 F&F 328 [176 ER 147]

Skelton v Collins (1966) 115 CLR 94; [1966] HCA 14

Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (Ex Freya) (2005) 143 FCR 43; [2005] FCAFC 68

The “Lima” (1837) 3 Hagg 346 [166 ER 434]

Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690; [2002] NSWCA 124

Watson v Marshall and Cade (1971) 124 CLR 621; [1971] HCA 33

Texts Cited:

Halsbury’s Laws of England (2nd ed), vol 33 (1939)

Halsbury's Laws of England (3rd ed), vol 35 (1961)

Halsbury’s Laws of England (5th ed), vol 93 (2017)

MA Jones, AM Dugdale and M Simpson (eds), Clerk & Lindsell on Torts (23rd ed, 2020, Sweet & Maxwell)

M Thomas and D Steel, Temperley’s Merchant Shipping Acts (7th ed, 1976, Stevens & Sons)

N Phillips and N Craig, Merchant Shipping Act 1995: An Annotated Guide (2nd ed, 2020, Taylor & Francis)

Category:

Principal judgment

Parties:

Royal Caribbean Cruises Ltd (Applicant)
Daniel Rawlings (Respondent)

Representation:

Counsel:
E G H Cox SC with M Harker (Applicant)
D Stanton (Respondent)
Solicitors:
HFW Australia (Applicant)
Walker Law Group (Respondent)

File Number(s):

2021/12694

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is a non-publication order on the ground set out in s 8(1)(c) prohibiting for a period of 20 years the publication anywhere in the Commonwealth of Australia of the name of the victim of the alleged assault in the proceedings below (2019/71056) or anything that might identify her in connection with those proceedings. The pseudonym “A” is used.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 822; [2021] NSWDC 39

Date of Decision:

22 December 2020

Before:

Hatzistergos DCJ

File Number(s):

2019/71056

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent was a passenger on the applicant’s Bahamian-flagged cruise ship during a ten-day voyage around various islands in the Pacific, departing Sydney on 10 November 2016 and returning on 20 November. In the early hours of 15 November, an incident occurred resulting in his being suspected of having sexually assaulted an 18 year old female passenger (“A”). The alleged assault occurred whilst the ship was in international waters. As investigations into the incident proceeded, the respondent was confined in the ship’s conference room, and subsequently in a guest cabin, from around 9am on 15 November until around 1pm on 20 November 2016.

On 17 November at 6:26am, the ship’s captain received an email from the applicant’s onshore Global Security department which recommended that the respondent be released on condition that he have no contact with A or her mother, sister and grandparents (who were also on board). Following a meeting between the captain, senior ship’s officers or crew, and A and her mother later that morning, at which A’s mother became emotional and threatened to throw the respondent overboard if he were released, the captain communicated his decision at midday to keep the respondent in confinement until the ship returned to Sydney.

The respondent brought proceedings in the District Court, claiming damages for wrongful detention and false imprisonment. The primary judge (Hatzistergos DCJ) held that the captain was justified in detaining the respondent up to midday on 17 November 2016, but not thereafter. In so doing, his Honour applied the substantive law of New South Wales to the alleged tort; and accepted as part of the Australian common law the justification defence, summarised by Slade J in Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413, that a ship’s captain has the power to detain or confine a passenger if he or she has reasonable cause to believe, and does in fact believe, that confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or of persons or property on board.

The primary judge awarded general damages of $70,000 and aggravated damages of $20,000 for the period of unlawful detention, and ordered that the applicant pay the whole of the respondent’s costs of the proceeding.

The applicant sought leave to appeal from those judgments and orders. The principal issues in the appeal were:

1. Whether the primary judge erred in applying in relation to the applicant’s justification defence the law as stated in Hook v Cunard Steamship Co as part of the law of New South Wales (ground 3);

2. Whether the primary judge erred in finding that that justification defence was not made out for the period of detention beyond midday on 17 November 2016 (grounds 1 to 4);

3. Whether the damages awarded were unreasonable and excessive (grounds 5 to 8);

4. Whether the primary judge’s exercise of the costs discretion miscarried (ground 9).

The Court held (Meagher JA, Bell P and Leeming JA agreeing), granting leave to appeal on grounds 1 to 4 and allowing the appeal, rendering it unnecessary to consider issues (iii) and (iv):

As to issue (i):

1. The respondent’s claim was pleaded as if the tort had occurred in New South Wales, and accordingly was governed by the law of New South Wales, the applicant not having pleaded any defence under or peculiar to the law of the Bahamas: at [1] (Bell P); [22] (Meagher JA); [115] (Leeming JA).

2. The existence of a subjective belief that confinement is necessary is an essential element of the master’s authority at common law to detain or confine: at [1] (Bell P), [24]-[35] (Meagher JA), [115] (Leeming JA).

Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413; Aldworth v Stewart (1866) 4 F&F 957 [176 ER 865]; The “Lima” (1837) 3 Hagg 346 [166 ER 434]; King v Franklin (1858) 1 F&F 360 [175 ER 764]; Scott v Wakem (1862) 3 F&F 328 [176 ER 147]; Anderdon v Burrows (1830) 4 Car & P 210 [172 ER 674]; Watson v Marshall and Cade (1971) 124 CLR 621; [1971] HCA 33, considered.

Merchant Shipping Act 1894, 57 Vict, c 60, s 223; Merchant Shipping Act 1970 (UK) c 36, s 79; Merchant Shipping Act 1995 (UK) c 21, s 105, considered.

As to issue (ii):

1. The primary judge erred in holding that the captain did not subjectively believe at the outset of the meeting with A and her mother on 17 November that the respondent’s continued detention was necessary beyond that point. The primary judge’s findings as to what the captain said concerning what he intended to do as regards the respondent’s confinement were not supported by the evidence of Chief Security Officer Mr Sreedharan. The evidence of Captain Sullivan and Staff Captain Mr Panagopoulos, which ought to have been accepted, established that the captain’s intention before, and after, the meeting was to keep the respondent confined until the ship returned to Sydney: at [1] (Bell P), [58]-[59], [61]-[67], [70]-[76], [80]-[89], [94] (Meagher JA), [115] (Leeming JA).

2. The email from Global Security recommending the respondent’s release on condition that he not have contact with A or her family was understood by the captain as “guidance” rather than an instruction, and it remained for the captain to consider whether the proposed condition would be effective to prevent such contact. The primary judge erred in rejecting the evidence of the captain and Mr Panagopoulos as to their assessments which were that, given the staff and resources at the ship’s disposal, they could not ensure there would be no such contact unless the respondent remained in confinement: at [1] (Bell P), [68]-[69], [75]-[78], [105]-[106] (Meagher JA), [115] (Leeming JA).

3. The primary judge erred in refusing to take into account any matters said to justify the respondent’s detention on the basis that they had not been included in a “defendant’s amended schedule of issues”. Those matters had been sufficiently pleaded and particularised in the applicant’s amended defence: at [1] (Bell P), [96]-[101] (Meagher JA), [115] (Leeming JA).

4. The primary judge further erred in finding that the conditions of the respondent’s confinement after midday on 17 November 2016 were unreasonable and “akin to solitary confinement”, in circumstances where - his welfare was regularly checked by ship’s security and medical officers and, on a daily basis, by an Australian consular officer; he was allowed daily access to open air and smoking breaks; and there is no record of his having made any complaint about his conditions of confinement either to the ship or to the consular officer: at [1] (Bell P), [108]-[109] (Meagher JA), [115] (Leeming JA).

Judgment

1. BELL P: I agree with Meagher JA.

2. MEAGHER JA:

Overview

The respondent was a passenger on the applicant’s Bahamian-flagged cruise ship the “Explorer of the Seas” during a ten day voyage which departed Sydney on 10 November 2016 for various islands in the Pacific, and returned to Sydney on 20 November 2016. In the early morning of 15 November, an incident occurred in the guest cabin shared by the respondent and a male friend, which resulted in his being suspected of having sexually assaulted an 18 year old female passenger, who is referred to by the pseudonym “A” in the judgment below and in these reasons. That alleged assault occurred whilst the vessel was in international waters and heading to Mystery Island, at the southernmost end of the islands constituting the Republic of Vanuatu.

3. As investigations proceeded the respondent was detained, initially in the ship’s conference room, and then in a different guest cabin, which was slightly smaller than his original cabin, where he remained until early in the morning of 19 November, when he was transferred to another cabin following a separate incident involving A’s mother. The ship arrived in Sydney at about 8am on 20 November, and the respondent remained in confinement until about 1pm. During that confinement, the respondent was allowed accompanied walks and cigarette breaks on the crew deck, and on and from 17 November was in daily telephone contact with an Australian consular officer, Mr Peter Allen.

4. The respondent brought proceedings against the applicant – as “operator” of the ship – in the District Court of New South Wales, claiming damages for wrongful detention and false imprisonment. By its amended defence, the applicant admitted that it was the “operator” of the ship and pleaded that as such it was “justified at common law to deal with [the respondent] in a reasonable manner and for a reasonable time as was necessary for the preservation of order and for the safety of persons or property on board” the ship. It also admitted that the respondent was detained in the conference room or in a guest room from about 9am on 15 November until about 1pm on 20 November.

5. Although in its defence the applicant also relied on the terms of its contract of carriage with the respondent as justifying his detention and confinement from 15 November, it was not contended before the primary judge that those provisions were more favourable than its position under the common law. For that reason, the primary judge did not consider the terms of that contract as providing a separate defence to the respondent’s claim.

6. The primary judge held that the ship’s master, Captain Ricky John Sullivan, and accordingly the applicant, was justified in detaining the respondent up to midday on 17 November 2016, but not thereafter (Rawlings v Royal Caribbean Cruises Ltd [2020] NSWDC 822). In that first period investigations into the incident were undertaken by ship’s officers. Once it was suspected that a serious sexual assault may have occurred, it was decided that the respondent should be detained until he could be handed over to law enforcement officers at the port of Nouméa (at which the ship was scheduled to berth at 8am on 16 November) and either taken into custody or returned to Australia. By 10am on 16 November, it was apparent to the captain that the New Caledonian police in Nouméa did not regard themselves as having jurisdiction in relation to the incident because it had occurred in international waters on a Bahamian-flagged vessel. As a result, by the time the vessel left Nouméa after 6:30pm on 16 November, the captain considered it likely that the respondent’s detention would continue until the ship arrived in Sydney.

7. At 6:26am on 17 November, the captain received a communication from the applicant’s onshore Global Security department which was charged with providing guidance on security matters. That email recommended that the respondent be released from isolation subject to his agreeing to have no contact with A and her family. Following a later meeting with the Staff Captain, Mr Panagopoulos, who was also second-in-command, the Chief Security Officer Mr Sreedharan and A and her mother concerning that email, the captain advised Global Security that the respondent would remain in confinement until the ship arrived in Sydney. That decision was made and communicated shortly before midday on 17 November, the time from which the primary judge was not satisfied that the respondent’s continued detention was lawful (J[387], [413]).

8. The primary judge awarded general damages of $70,000 for the period of unlawful detention between midday on 17 November and 1pm on 20 November 2016. His Honour also awarded aggravated damages of $20,000, entering judgment for the respondent for $97,344, including interest. In a separate judgment, the primary judge ordered that the applicant pay the whole of the respondent’s costs of the proceedings (Rawlings v Royal Caribbean Cruises Ltd (No 2) [2021] NSWDC 39).

The grounds of appeal

9. The applicant seeks leave to appeal from that judgment because the amount in issue is less than $100,000 (District Court Act 1973 (NSW), s 127(2)(c)). It does not separately require leave to appeal against the costs order, because its appeal in relation to that order is not an appeal “as to costs only” within the meaning of s 127(2)(b) of the District Court Act: Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 at [84] (Leeming JA, Bell P and White JA agreeing). Leave to appeal should be granted on grounds 1 to 4, the proposed appeal raising a substantial question of principle on the issue of liability.

10. Grounds 1 to 4 are directed to the primary judge’s conclusion that the applicant’s justification defence was not made out for the period of the respondent’s detention beyond midday on 17 November 2016. In addressing that defence, the primary judge applied the Australian common law relating to the power or authority of the master of a ship to detain or confine any person on board the vessel. His Honour did so, the parties seemingly proceeding on the basis that the relevant law governing the alleged tort was that of New South Wales. It will be necessary shortly to consider the basis on which, under Australian choice of law rules, the Australian common law might be applied to an alleged tort committed on a Bahamian-flagged vessel whilst on the high seas.

11. At J[381], the primary judge recorded that the parties “appeared to accept” that the Australian common law governing the power of the master to detain was the same as the English common law and correctly summarised by Slade J in Hook v Cunard Steamship Co [1953] 1 WLR 682 at 684-685; [1953] 1 Lloyd’s Rep 413 at 423-4.

12. In describing the position under English law, Slade J extracted (at 684, 423) the following statement from Halsbury’s Laws of England (2^nd ed), vol 33 (1939), Trespass to the Person, at [75]:

The master of a merchant ship is justified at common law in arresting and confining in a reasonable manner and for a reasonable time any sailor or other person on board his ship, if he has reasonable cause to believe that such arrest or confinement is necessary for the preservation of order and discipline or for the safety of the vessel or the persons or property on board.

Mr Justice Slade added:

I think there requires to be added to that, not only that the master of the ship shall have reasonable cause to believe in the necessity of the confinement for that purpose, but that he should in fact believe that his confinement is necessary for that purpose; that is to say, that the confinement must comply not only with the objective but also with the subjective requirements in that respect.

13. The applicant contends that the primary judge erred in finding that, at the outset of the meeting with A and A’s mother on 17 November 2016, Captain Sullivan did not subjectively believe that the respondent’s continued detention was reasonably necessary for the preservation of order, and safety of persons, on board the vessel. In the face of that challenged finding, the applicant also contends that the primary judge erred in holding that the master’s “subjective belief [in the necessity of confinement] is an element of the defence”. These challenges are made by ground 3.

13. In making that finding and not being satisfied that the justification defence was made out for the period after midday on 17 November 2016, the primary judge is also said to have erred in refusing to consider matters said to justify the respondent’s detention on the basis that they were not referred to in a “statement of issues” (ground 1); in rejecting evidence of Captain Sullivan and Mr Panagopoulos concerning the meeting on 17 November and the decision not to release the respondent (ground 2); and in not finding that the same considerations which made the respondent’s initial detention lawful continued to apply after midday on 17 November 2016 (ground 4). The relevant considerations include whether it was reasonably necessary to continue to confine the respondent in order to “observe” his movements (J[408]); and whether his confinement in a small cabin for an additional three days was “reasonable in the circumstances” (J[412]).

14. The applicant also challenges the primary judge’s assessment of general and aggravated damages for wrongful detention as “objectively unreasonable and excessive”. Notwithstanding that the reasons do not say what particular matters were taken into account in assessing general damages at $70,000 (cf J[414]), the applicant submits that that assessment unjustifiably included a substantial allowance for the “initial shock of arrest”, which it is contended would in any event have been experienced during the first and justified period of detention of two days (grounds 5, 6, 7 and 8).

15. Finally, the applicant contends that in ordering that it pay the whole of the respondent’s costs of the proceedings, the primary judge’s exercise of the costs discretion miscarried. On its case, some allowance should have been made for its successful justification of part of the period of detention, and the rejection of the respondent’s claim to damages for alleged psychiatric injury (ground 9).

16. For the reasons which follow, the appeal should be allowed in relation to grounds 1 to 4, with the result that the respondent’s confinement was justified for the whole of the relevant period.

17. That conclusion makes it unnecessary to consider proposed grounds 5 to 8 and ground 9. In the result in the underlying proceedings, the judgment and orders made on 22 December 2020 and 19 February 2021 should be set aside, and judgment entered for the applicant, as defendant, with costs.

18. It is convenient to start with the limited question concerning the power and authority of the master of a ship under the Australian common law to detain or confine any person on board. That question arises under ground 3, although it is not strictly necessary to determine it in view of my conclusion that the primary judge erred in not being satisfied that Captain Sullivan believed that the respondent’s continued detention during the return voyage to Sydney was necessary. I will also address at this point why it was correct for the primary judge to proceed on the basis that the Australian common law governed the applicant’s justification defence. I will then address the remaining, essentially factual, issues raised by grounds 1 to 4.

The captain’s power of detention

20. Under Australian choice of law rules, the law applicable to a tort committed on a vessel while on the high seas – at least, where the effects of the tort are confined to the vessel – is the law of the state in which the vessel is registered, referred to as the law of the flag. See for instance Blunden v Commonwealth (2003) 218 CLR 330 at 340; [2003] HCA 73 at [25] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Union Shipping New Zealand Ltd v Morgan (2002) 54 NSWLR 690; [2002] NSWCA 124; CMA CGM SA v The Ship Chou Shan (2014) 224 FCR 384; [2014] FCAFC 90 at [91]. Here that law was the law of The Bahamas.

21. Generally speaking, however, unless the applicability of foreign law and its content is pleaded and proved, there is a presumption that the content of the foreign law applicable under the relevant choice of law rule of the forum is the same as the substantive law of the forum: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 at [115] (Gummow and Hayne JJ); cf Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87.

22. In the present case, the respondent’s claim was pleaded as if the tort had occurred in New South Wales, and accordingly was governed by the law of New South Wales; the applicant (defendant) pleaded no defence under or peculiar to the law of The Bahamas; and neither party sought to lead evidence of the content of the law of The Bahamas. Had the law of the place of the tort been pleaded in accordance with Australian choice of law rules as the law of the vessel’s flag, in the absence of evidence of the content of the law of The Bahamas, the primary judge would have been correct in applying the substantive law of New South Wales by way of presumption, perhaps comforted by the fact that The Bahamas was a British colony until the early 1970s.

23. In the application of that presumption, a question could have arisen as to the application of any Australian or New South Wales statutory law concerning the authority of the master of a vessel on the high seas, as to which see the observations of Ryan and Allsop JJ in Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (Ex Freya) (2005) 143 FCR 43; [2005] FCAFC 68 at [150]. One statutory provision concerning the master’s authority to detain is Navigation Act 2012 (Cth), s 123, which confers a limited power on a master to detain if he or she “reasonably believes” that a person has interfered with a vessel’s machinery in contravention of s 121 of that Act. That provision, located in Ch 3, Pt 4 of the Act, applies to “regulated Australian vessels” and “foreign vessels” (s 111). In the case of the latter, it only applies to foreign vessels which are in or entering or leaving an Australian port, or in the internal waters or territorial sea of Australia, when the offending conduct occurs (s 9). Accordingly, it could not have applied in the present case, and in any event does not purport to qualify or otherwise exclude the operation of any common law principle conferring the power to detain where it is necessary to preserve the safety of the vessel.

Whether detention is only justified if the captain believes detention is necessary (ground 3)

24. The applicant contends that the existence of a subjective belief, that arrest or confinement is necessary, is not an essential element founding the captain’s authority to arrest or confine.

25. At the outset, it is correct to observe, as does the respondent, that neither of the authorities to which Slade J refers (at 684-5, 424) – Aldworth v Stewart (1866) 4 F&F 957 [176 ER 865] and The “Lima” (1837) 3 Hagg 346 at 349 [166 ER 434] – contains an express statement as to the requirement that the master “should in fact believe” that the confinement is necessary for the purpose of preserving order and discipline or for the safety of the vessel or the persons or property on board. However, in Aldworth, Channell B is reported as describing the master’s authority as “based upon necessity, and [as] limited to the preservation of necessary discipline and the safety of the ship” (at 961). This limitation as to the authority conferred is implicitly directed to the particular purpose for which the master purports to exercise the authority.

26. That understanding of the relevant principle accords with the report of Watson B’s direction to the jury in King v Franklin (1858) 1 F&F 360 [175 ER 764], an action for false imprisonment against a captain who had placed the plaintiff passenger in irons. In relation to the captain’s plea of justification of the imprisonment “for the prevention of a mutiny”, the jury was directed (at 361):

If a passenger misconducts himself at table, the captain may remove him, or may even imprison him for a short period, if imprisonment be necessary for the enforcement of his lawful commands. The rule of law is simple; the power of the captain is limited to the necessity of the case. In the present case the defendant justifies for ‘that he had reasonable and probable cause to believe, and did believe, that a mutiny was imminent’. To succeed in his defence he must prove the whole of this allegation. It would not be sufficient that he did believe unless he had also reasonable cause for apprehending a mutiny.

27. The statement from the 2^nd edition of Halsbury cited in Hook v Cunard made no express reference to the purposive requirement. However, the following edition of Halsbury, in the relevant volume published in 1961, expressly includes as a condition on the exercise of the power that the master “in fact believes” that the confinement is necessary, and cites Hook v Cunard in support: Halsbury's Laws of England (3^rd ed), vol 35 (1961), Shipping and Navigation, at [285].

28. In Hook v Cunard, Slade J was considering the common law right of the master, in circumstances where the more limited power in section 223(1) of the Merchant Shipping Act 1894, 57 & 58 Vict, c 60 did not apply to the arrest of a first class passenger lounge steward for the suspected indecent assault of a 10 year old passenger (at 684, 423). In 1970, section 223 was repealed and replaced by section 79 of the Merchant Shipping Act 1970 (UK) c 36, which provided a broader power to detain, albeit one which by use of the words “appears to him" focused on the state of mind of the master:

Master’s power of arrest

79. The master of any ship registered in the United Kingdom may cause any person on board the ship to be put under restraint if and for so long as it appears to him necessary or expedient in the interest of safety or for the preservation of good order or discipline on board the ship.

29. This provision was repealed in the Merchant Shipping Act 1995 (UK) c 21 and replaced by section 105, which is in the same terms except that it uses the defined term “United Kingdom ship” in place of “ship registered in the United Kingdom”.

30. The conferral of the broader statutory power in 1970 did not in terms or otherwise extinguish the power under the English common law applied in Hook v Cunard, as the following texts and commentaries have continued to recognise: Michael Thomas and David Steel, Temperley’s Merchant Shipping Acts (7^th ed, 1976, Stevens & Sons), 1455; Nevil Phillips and Nicholas Craig, Merchant Shipping Act 1995: An Annotated Guide (2^nd ed, 2020, Taylor & Francis), 123; see also Halsbury’s Laws of England, vol 93 (2017), Shipping and Maritime Law, at [445]. The description of the position under the common law in the 7^th edition of Temperley is in substantially the same terms as in Hook v Cunard; and in their annotated guide to the Merchant Shipping Act 1995, Phillips and Craig describe the relevant power (at 123):

The power to detain at common law is exercisable by the master where he has reasonable cause to believe that such detention is necessary and where he does in fact believe that such detention is necessary. Both burdens must be met before the exercise of the power will be upheld by the court; see Hook v Cunard Steamship Co. [1953] 1 W.L.R. 682.

31. In the most recent edition of Clerk & Lindsell on Torts (23^rd ed, 2020, Sweet & Maxwell) at [14-133], Hook v Cunard is cited for the proposition that the master of a vessel:

… is justified at common law in arresting and confining in a reasonable manner and for a reasonable time any sailor or other person on board his ship if he has reasonable cause to believe and does in fact believe that such arrest or confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or the persons or property on board.

32. There do not appear to be any Australian authorities which have addressed the power of the master of an Australian ship to arrest or confine any person on the vessel. As Windeyer J said in Skelton v Collins (1966) 115 CLR 94 at 135; [1966] HCA 14, the English common law which Australia inherited is “a body of principles capable of application to new situations, and in some degree of change by development”. That body of doctrines and principles is apt to include the principles as stated in Hook v Cunard, subject to it being suggested that the rule has been displaced or varied by statute, or that it is contrary to some other doctrine or rule now forming part of the Australian common law: see also Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 at [54]-[57] (Gaudron, Gummow and Hayne JJ). No such circumstances are apparent or relied on here.

33. Indeed, under the Australian common law, it is a defence to a claim for assault or false imprisonment that a medical practitioner detained the plaintiff because it was necessary to do so for the plaintiff’s protection or the protection of others. In In Re Hawke (1923) 40 WN (NSW) 58, Harvey J referred to the limits of that power to restrain as having been laid down in Scott v Wakem (1862) 3 F&F 328 [176 ER 147] and Anderdon v Burrows (1830) 4 Car & P 210 [172 ER 674]. In Scott v Wakem (at 328, 147), Bramwell B described the defendant doctor’s plea of justification as being that he “necessarily entered the house and did what was complained of to put the plaintiff under reasonable restraint, and to prevent him doing mischief to himself and others”. Bramwell B directed the jury that the justification defence would be made out if the defendant only did what was complained of until he believed the plaintiff had recovered and provided he had done nothing that was not “necessary or reasonably proper under the circumstances” (at 333, 149).

34. In Watson v Marshall and Cade (1971) 124 CLR 621 at 627; [1971] HCA 33, Walsh J, citing Harvey J in In Re Hawke, noted that the defendant doctor did not seek to justify the alleged imprisonment under any common law principle, observing that had the evidence proved that there was a justification at common law, he would have been disposed to allow any necessary amendment to the pleading. However, his Honour did not consider that the evidence was sufficient “to make out a case of justification at common law”, because it did not establish that “there was a necessity to protect the plaintiff or to protect others such as would justify at common law the action taken by the defendant” or that the defendant “acted because of an awareness of such a necessity”. Those dicta observations were not addressed on the appeal in Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27.

35. The primary judge did not err in adopting as a correct statement of the Australian common law with respect to the master’s power or authority to detain that it must be established that the master has reasonable cause to believe, and does in fact believe, that the relevant detention or confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or persons or property on board.

Whether the whole period of the respondent’s confinement was justified as necessary (grounds 1, 2, 3 and 4)

36. As has already been observed, the primary judge considered the applicant’s detention of the respondent by reference to decisions to detain said to have been made in the early afternoon of 15 November, and at or around midday on 17 November (J[387]). It is convenient first to set out the circumstances of the respondent’s actual confinement in the whole of the period to 20 November 2016, before considering the particular events of 17 November following the Global Security 6:26am email to the ship.

The circumstances of the respondent’s confinement from 15 to 20 November

37. At 5:39am (ship’s time) on 15 November, A was found naked and disoriented in an unrelated guest’s room. She claimed she had no recollection of the previous evening (J[81], [85]). The circumstances suggested to the applicant’s security officers and the captain that she was the victim of a sexual assault. At that time it was believed that she had been intoxicated. (Later, in her interview with consular staff on board the ship in Nouméa on 16 November, A claimed “that her drink was spiked”.) The ship’s security officers’ investigation included taking statements from those involved and reviewing CCTV footage. The latter showed A as having entered the respondent’s room with another female guest at 2:10am and having left naked some two and a half hours later. She then entered the room of an unrelated female guest who assisted her to find the guest room which she shared with her younger sister and mother. (A’s mother’s parents were also on the cruise and shared a separate cabin.)

38. Shortly before 9am on 15 November the ship’s security officers decided to detain the respondent and to seal his shared guest room. In accordance with the applicant’s internal procedures, Global Security (based in Miami, Florida) was kept informed of the investigations as they proceeded, as was the captain. The two onshore investigators involved were Mr Warder and Mr Williams. The captain, the Staff Captain, the Chief Security Officer and each of these onshore officers gave evidence and was cross-examined.

39. Between about 5:30am and 7:30am, A and her mother attended the ship’s medical centre where A was physically examined. A urine drug screen test was performed. The result of that test was negative, but did not test for the presence of certain drugs, including rohypnol (J[84]-[89]). A declined to undertake a sexual assault examination at this time.

40. However, late on the evening of 15 November, A and her mother again attended the medical centre, and a sexual assault examination was undertaken. That examination included taking DNA swabs and a blood sample (J[207], [255]). Those swabs and sample were made available to police in Sydney on 20 November and results from their analysis only became available in mid-December 2016 (J[338]).

41. Having spent part of 15 November at the uninhabited Mystery Island, the vessel was scheduled to arrive at Nouméa at 8am on the next day. Mr Sreedharan had emailed the ship’s agent in Nouméa requesting that “law enforcement authority” be present on its arrival. By the early afternoon of 15 November, the incident had been categorised by Global Security as “Sexual Assault Rape - based on [A’s] inability to consent due to being extremely intoxicated” (J[113], [117]).

42. When the respondent’s guest room was sealed, he and his roommate were taken to a conference room, where they remained until about 2:30pm, at which time the roommate, but not the respondent, was permitted to leave. At about 5:15pm on 15 November, the respondent was taken from that conference room to an unoccupied guest room, where he was held until he was moved to another guest room in the early hours of 19 November. He remained in that room until midday on 20 November, at which time he was free to leave the ship. During the whole of that period an “involuntary isolation of crew/guest” log was kept.

43. By late on 15 November, Captain Sullivan intended that the respondent “be disembarked as soon as possible, which was in Nouméa in this instance and either into the custody of the New Caledonian police or for the purpose of being repatriated in Australia”. His general position was that in the face of an allegation of sexual assault, he should “take all measures to keep the suspect away from the survivor and take the first opportunity to inform law enforcement and hand the matter over to them”. Captain Sullivan’s evidence was that the respondent was confined on 15 November because his continuing ability to use the facilities of the ship “represented a risk to the safety of the young woman and the other persons involved in the incident” (J[174], [175]). Safety in this context fairly clearly includes emotional wellbeing.

44. After the ship had arrived in Nouméa and before 9:21am on 16 November, Captain Sullivan was advised that the police authorities were refusing to attend the vessel and assist with the investigation of the incident because it happened in international waters and outside their “land/sea jurisdiction”. That advice was also communicated to the two relevant Australian consular officers in Nouméa (J[230]). At about 11:20am, those officers, Mr Peter Allen and Ms Rose Wete, boarded the ship and met with A (first by herself and then accompanied by her mother), and later with the respondent.

37. During their discussion with A, she said that she proposed to press charges against the respondent and that she was “happy to continue the cruise” and was “pleased to know that the accused would remain confined in his cabin”.

38. Following his meeting with A, Mr Allen advised Mr Panagopoulos and Mr Sreedharan that A wanted to go ashore and lay charges of sexual assault (J[220]). A and her mother then went ashore in the early afternoon and reported the incident to local police. A gave a statement and undertook a limited medical examination in support of her claim. She submitted to a blood test, gave a urine sample, and permitted a “review of external bruising” (J[232]). A and her mother returned to the ship shortly after 6pm, accompanied by New Caledonian police officers who also confirmed to the captain that they would not allow the respondent to disembark so that he could be repatriated to Australia.

39. The consular records in evidence indicate that following the meetings with A and A’s mother and the ship’s captain, inquiries were pursued in Australia as to the jurisdictional issues raised by the New Caledonian police. There was then an inquiry by A’s mother concerning whether Australian police could be involved when the ship reached Sydney, by accepting the evidence collected by the ship and pursuing A’s complaint.

40. At around 5pm on 16 November, Mr Allen received advice prepared by an officer within the Attorney-General’s Department expressing the “preliminary view” that the alleged offence fell within Australian jurisdiction pursuant to the Crimes at Sea Act 2000 (Cth), s 6(2)(a). That subsection provides that the criminal law of the Jervis Bay Territory applies to a criminal act of an Australian citizen on a foreign ship where the ship is outside the “adjacent area”, which, as defined, renders that law applicable to acts committed whilst the ship is on the high seas beyond the limits of the continental shelf (J[240]). The substantive criminal law of the Jervis Bay Territory is that of the Australian Capital Territory by operation of Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A. That criminal law includes the Crimes Act 1900 (ACT) and Criminal Code 2002 (ACT). Part 10 of the former authorises and governs the investigation by police officers of criminal offences under that Act, relevantly including sexual assault offences under Part 3. The advice also noted that “any charge for an offence within the scope of section 6(2)(a) cannot proceed to prosecution without the written consent of the Attorney-General (section 4)”, who is required to “take into account the views of any other State which, as a matter of international law, has jurisdiction over the offence” before giving consent.

41. At about the same time, the ship and consular officers were notified by an Australian Federal Police officer, Mr Joseph Zeller, that New South Wales Water Police would meet the ship when it docked in Sydney, investigate A’s complaint and be able to accept evidence from the ship (J[241], [243]). That officer also spoke with A’s mother by telephone to confirm that NSW Police would be taking carriage of the matter. (In his report to Global Security following the meeting between the captain, other ship’s officers and A and her mother on 17 November, Mr Sreedharan records that according to A’s mother, Mr Zeller told A at this time that the suspect “should be kept under guard if [A and A’s mother] were on board cruising”.)

42. After focusing first on A’s position, Mr Allen met with the respondent at about 4pm. Having done so, he again met with Captain Sullivan. By this time, the captain had advised that the respondent was “likely to be detained until arrival into Sydney” (J[238]). Mr Allen was obviously concerned about the respondent’s position in his “isolation room” which the officer described as a “windowless cabin, approximately 7m x 3.5m with TV and bathroom and a security guard posted outside”. He noted that at this time on 16 November the respondent was “clearly agitated”. His case report continued:

Mr Rawlings noted that he had not received a clear indication on why he had been detained in the room and objected that he had no fresh air nor sunlight and was not able to smoke. He confirmed that he is able to access food and water and seen the ship's doctor, although his request for Valium had been denied. Mr Rawlings advised that he had not been able to make phone calls, although he didn't have anyone he wanted to call. Post discussed privacy, offered to contact family or friends in Australia and sought consent. Mr Rawlings was happy for post to talk to people that might be able [to] help him, but did not provide formal consent.

51. Mr Allen’s note of his meeting with the captain indicates that he raised what must be done to address the conditions of the respondent’s ongoing detention, and then discussed those matters with the respondent:

Noting concern for Mr Rawlings and that he was considered innocent until proven otherwise, Sullivan suggested that the private room was better for Mr Rawlings than detention in the ship's brig. Sullivan undertook to ensure Mr Rawlings would be cared for, including access to phone and (again) offering clothing from the gift shop. At Allen's request, Sullivan agreed that the ship's Chief Security Officer (Sreedharan) would call Allen's mobile on a daily basis to connect Allen to Mr Rawlings by phone.

Allen again met with Mr Rawlings to relay this advice. Allen also confirmed that Mr Rawlings was the subject of an investigation and this was taking time while the ship worked with relevant authorities. Allen indicated that Mr Rawlings may be detained in the room for four more days and discussed ways Mr Rawlings might be able to take care of himself during this time. Post did not provide a list of local lawyers.

52. As reported, Mr Allen undertook to remain in daily contact with the respondent and to continue to monitor his position. That occurred. In his report of his telephone conversation with the respondent on the following day, 17 November, Mr Allen wrote:

On 17 November 2016, post (Allen) was able to contact Mr Rawlings, who remains detained in an isolation cabin on board the Explorer of the Seas, which is currently visiting Isle des Pins. Mr Rawlings advised that he had been able to go outside for some fresh air and cigarettes and had spoken directly with the Captain, who provided more information on the nature of the allegations against him. Mr Rawlings remained anxious, but seemed more accepting of his situation. He confirmed that he had eaten and was able to get some sleep overnight.

At the same time Mr Allen sent the following email message to Mr Sreedharan:

Thank you for your persistence trying to put us through. It took several attempts but we got there in the end. I would like to do this again tomorrow afternoon please.

Thank you again also for your team's efforts in accommodating him. I think the fresh air did him the world of good. Daniel has asked for a few items though please and I wonder if you would mind helping him with this again.

53. The “few items” requested by the respondent were for telephone contact with his grandparents in Australia and his male roommate who remained on the ship; and for access to a counsellor. The ship’s response was to deny the two requests for contact other than with the consular officers, who might pass on messages. That response was given after the ship took advice, through its Sydney port agent, from NSW police, who advised (it would seem on 18 November) that the respondent should have “no communication between him and his friend on board”, and that “message[s] of goodwill between him and family are okay” if passed through consular officers.

54. The guest confinement log for the respondent shows that during his confinement he was checked on regularly, including by Mr Sreedharan; visited by the ship’s doctor or nurse on more than six occasions; spoke on the telephone to Mr Allen on 17, 18 and 19 November; was offered the opportunity to go outside for fresh air on two occasions on each of 17 and 18 November, and once on 19 November; and was provided with ready access to food and non-alcoholic beverages, as well as to necessary clothing from the ship’s gift shop.

The events of 17 November

55. As the matter stood on the evening of 16 November, the ship was late in departing Nouméa for the Isle of Pines, where it was to dock in the morning before commencing its return journey to Sydney. At the time the ship left Nouméa, Captain Sullivan’s position as recorded by the primary judge at J[248] was:

[Captain Sullivan]… felt that he was unable to protect the well-being of A, who was alleging sexual assault through her report to New Caledonian police and who had required medical attention on the Ship, [or] to preserve the alleged crime scene and any future police investigation, by disembarking the Plaintiff. Accordingly, he determined to continue the Plaintiff’s detention until the Ship returned to Sydney.

56. At 6:26am (ship’s time) on 17 November, the captain received the following email from Mr Williams (J[257]):

Greetings SECO Prasad and the EX Security Team and Staff. I wanted to address the issue of the suspect’s isolation and offer our guidance as to the ship setting up a plan for the suspect/guest. The ship will complete LEN [i.e. police] notification in Sydney, Australia on 11/20, ship’s time. The suspect/guest in this case will be in isolation under guard for an excessive amount of time. Due to the circumstances surrounding this case, my guidance would be to release the suspect/guest from isolation and prior to this, set up a meeting with the suspect/guest and the ship’s Executive Staff. During the meeting the suspect could be advised that he is being released from isolation and he is not to have any contact with the survivor, her mother or any other subjects that are traveling with the survivor or may be related to her. The prohibited contact should be in person, telephonic, text, by email or any other electronic communication devices. Also, please explain to the suspect that he cannot have anyone contact the survivor, her family or traveling group via a third party. He is being released because of the excessive time that would be required to isolate him under guard. We are not a Law Enforcement Agency but we do have the authority to keep him isolated, under guard if he becomes a threat to the safety and security of the ship. In other words, if the suspect violates any of the terms the ship sets forth or becomes involved in any other incidents aboard the shop that are criminal or administrative in nature. My guidance would also be to cut off his alcohol consumption for the remainder of the cruise. Please make sure they are aware that LEN in Sydney, Australia will board to conduct an investigation and interviews on 11/20, ship’s time. A meeting should also be conducted with the survivor and her mother. Please explain to them that the ship and our company has their best interest at hand and we will provide any reasonable services to her and her family. Explain to them the suspect will be released from isolation but he has terms to abide by. Have someone from the ship stay in contact with the survivor and her mother to make sure they are doing as well as can be expected and have them report any issues directly to the ship for follow up. As I stated before, please advise them we are not a Law Enforcement Agency and that we cooperate with LEN and prepare the best case we can to assist LEN with their investigation and the ship’s outcome administratively. This would be my guidance from a Global Security view on this case. I will make phone contact with the ship on this matter today. Please contact me or Senior Investigator Ira Warder if you have any concerns. Thank you. Doug Williams, Global Security.

57. Captain Sullivan’s evidence was that having received this email he did not consider “[the respondent] should be released at that time, stating that he didn’t think it was the best option, but was rather willing to explore it by meeting with A’s family” (J[266]). Accordingly, a meeting was arranged and held at 10:50am between A and her mother, and Captain Sullivan, Mr Panagopoulos, Mr Sreedharan, Mr Ivan Lawrence who was the Guest Services Manager, and Ms Adriana Castro, who was the Care Team Manager and was counselling A (J[267]).

58. Captain Sullivan treated Mr Williams’ email as providing guidance rather than as requiring compliance with what was proposed. His position was that although he might seek or receive views from the Global Security officers, he ultimately had the authority and responsibility to maintain the safety and security of everyone on board the vessel. He maintained that at the outset of the meeting with A and her mother, he did not agree with what was proposed, and that he “wished to discuss the possibility” of the respondent’s release with them (J[405]).

59. Mr Panagopoulos shared that view. At J[404], the primary judge summarised his evidence concerning his reaction to Mr Williams’ 6:26am email:

… at that time he did not think it was a good recommendation to follow the advice of Global Security as the Ship would not be able to track the Plaintiff and whether he was complying with the conditions imposed for his release. Further, it would increase the possibility of the Plaintiff coming with contact with A and her family members.

60. At the meeting the captain informed A and A’s mother that he had received a directive or guidance from Global Security that the respondent be released from isolation on condition that he was not to have any contact with A or her mother or anyone else travelling with them. (Those others were A’s sister and the parents of A’s mother.) A’s mother’s response was emotional and forthright. She said she could not agree to the respondent’s release and threatened that if that happened she would throw him overboard.

61. There are fairly contemporaneous incident reports and email communications prepared by Mr Sreedharan and Messrs Lawrence and Castro which seek to record, albeit briefly and from the perspective of each writer, his or her understanding of what happened, and in particular of A’s mother’s reaction, which was the “incident” that the three officers were required to report. Mr Sreedharan also reported the meeting and its outcome to Global Security.

62. Mr Sreedharan’s security incident statement, completed at 6:30pm on 17 November, described what happened (J[268]):

Captain informed [A’s mother] that he had received directives from the office to release the suspect from isolation as we/the ship is not a law enforcement authority. Hearing this [A’s mother] became very emotional and told that she cannot agree to that. Further she stated that if the subject is going to be released she will throw him overboard. Captain then decided to keep the suspect in isolation under guard.

It also included, in answer to a separate question directed to how the incident happened (J[269]):

[Captain and senior staff were] present for a meeting with [A’s mother] and [A] when Captain told he has to release the suspect.

63. His report to Global Security of the meeting and some of its consequences, made at 5pm on 17 November (J[270]), included:

Today at about 1050 hrs meeting was arranged for [A and her mother]. … Captain told [A’s mother] that the directives received to him from office was to release the suspect. Hearing that [A’s mother] became very emotional and told if she would have known that yesterday in Noumea all her 5 family members would have disembarked the ship. She also told that she is not at all going to agree with this decision and “will throw the suspect overboard if he is been released from custody”. [A’s mother] also questioned why the other male guest and the other female guest who was also in the stateroom on that night along with [A] is not isolated. [A’s mother] became very emotional on tears telling that she will not any way agree to the decision. [A’s mother] also told Captain that while she was in the Police station in Noumea Australian Federal Police Officer Joseph Zeller [phone redacted] told A that the suspect should be kept under guard if [A] and [A’s mother] were on board cruising. 1105 Hrs Captain Rick Sullivan took the decision not to release the suspect from isolation until further notice considering the safety and security of Daniel Rawlings. Captain then conveyed the message to [A’s mother] that he is not going to release the suspect. 1130 Hrs Captain called Global security senior investigator Michael Carey and updated that Daniel Rawlings will remain in isolation under guard till Sydney taking into account of his own safety and security. 1159 Hrs Captain, Staff Captain and Chief Security Officer met guest Daniel Rawlings who is isolated under guard in the stateroom 6121. He was the escorted to Dk-5 Crew smoking area for smoking cigarette on his request. In the smoking area Dk-5 open deck Captain and Staff Captain talked with Daniel for 30 minutes. 1232 Hrs Captain Staff Captain Chief Security Officer along with the security staff on duty escorted Daniel back to the stateroom 6121…Chief Security Officer also informed Peter [Allen] about the meeting with Captain conducted with [A’s mother] along with [A] and separately with Daniel and the outcome…Chief Security Officer informed Peter that Daniel Rawlings will remain in isolation in the stateroom 6121 as decided by Captain for his own safety.

64. At the same time, Mr Sreedharan created a further note of his telephone and email communications with Mr Allen concerning the respondent’s confinement. That note followed the earlier communications between the captain and Mr Allen on the evening of 16 November (see [51]-[52] above). It principally sets out the substance of the email communication at J[298].

65. Neither the captain nor Mr Panagopoulos completed an incident statement in relation to the threat made by A’s mother. The primary judge summarised Mr Panagopoulos’ evidence of what happened at J[273]:

… a meeting was organised to discuss Global Security’s recommendation that the Ship consider releasing the Plaintiff from isolation. He stated that when the Captain informed A and her mother of that possibility, A’s mother became furious and stated words to the effect that she would throw the Plaintiff overboard if he was released. He stated that A’s mother appeared to be quite concerned and claimed that her daughter was not behaving normally and that she might have been drugged and raped from the moment she was found naked. He recorded that A vomited when hearing the Plaintiff would be released.

66. Mr Lawrence’s incident statement was completed at 10:55am on 17 November and included the following (J[282]):

Master R. Sullivan has explained to victim’s mother, [redacted] regarding advanced notification from Global Security who have requested the Accused Daniel Rawlings #6121 to be released from isolation. At this time guest [redacted] who is the mother of the victim has become very emotional whilst also making the following statement “If I had known that you would be releasing the suspect, both myself and my daughter would have got off the ship. If the suspect is released I would be forced to throw him over-board”.

…

As a direct consequence of the comment, it was then decided by the Master R. Sullivan that the suspect, namely Daniel Rawlings would not be released from isolation.

67. Ms Castro’s incident statement was completed on 18 November at 9:55pm and said (J[284]):

Yesterday, November 17, on a meeting… to inform guest [A and A’s mother] about the decision made by Global Security to release the suspect, [A’s mother] became very emotional and upset with the decision. As the captain was trying to explain her the procedures and the decision [by Global Security to release the suspect, A’s mother] mentioned that she couldn’t agree with that decision and if the suspect would be released she would throw him overboard. After listen what [A’s mother] had to say, Captain then decided to keep the suspect [unreleased].

68. As to his decision not to act in accordance with Global Security’s advice, Captain Sullivan’s evidence, recorded at J[276], [278] and [279], was that in his view there was no question as to whether or not the correct decision was to hold the respondent in confinement; that following the reactions of A and A’s mother he decided to confine the respondent for a further period “for the initial reasons, in that he was a suspect in an alleged sexual assault”. Whilst he did not believe that A’s mother could “act out” her threat, he was concerned that “if they did meet each other it could cause another type of security incident that may not have necessarily led to [the respondent] going overboard, but may have caused a conflict”. He did not want A’s mother to have the opportunity to meet the respondent in case there was an interaction between them and stated that if the respondent was not confined to a cabin, the ship could not “have necessarily taken all steps to control” any conflict as “they could not follow every single individual around the ship at all times”. Ultimately he “regarded the safest thing to preserve evidence, to ensure that a story could not be collaborated with other people, and to take care of [the respondent] was to keep him locked up”. He accepted that he could have made a request that he not speak with other witnesses but stated that it would have been difficult to observe him the whole time.

69. In other words, the captain wanted to avoid the possibility of contact, and was not satisfied that the condition which Global Security sought to impose would be effective to prevent contact. Mr Panagopoulos’ evidence as to his thinking was to the same effect.

The primary judge’s reasoning

70. The primary judge concluded that the respondent’s confinement beyond midday on 17 November was not “lawful”. The analysis leading to that conclusion starts from the position that, having received Mr Williams’ email of 6:26am on the morning of 17 November, the captain did not consider it was necessary to further confine the respondent (J[409]). That conclusion is challenged.

71. It is instructive first to consider the circumstances in which that decision is said to have been made. At his meeting with Mr Allen on the previous evening, the captain is recorded as having said that it was likely that the respondent’s confinement would continue until the ship reached Sydney (J[238]). As the primary judge recites at J[248], that was also the effect of the captain’s evidence as to his “determination” at that time. None of that evidence is contradicted by the subsequent evidence of Mr Sreedharan.

72. As has already been noted, Captain Sullivan’s general position in relation to serious allegations of sexual assault was that he and his security staff would take all measures to keep the suspect away from the survivor and take the first opportunity to inform law enforcement and hand the matter over to them. As appears above (see [43]), before the ship reached Nouméa, the captain considered that the respondent’s continuing ability to use the facilities of the vessel “represented a risk to the safety of the young woman and the other persons involved in the incident”.

73. The continued need for the respondent to be kept away from A and her mother whilst he remained on the vessel was also recognised by Mr Williams’ email, which proposed as a condition of release that the respondent “not have any contact with the survivor, her mother and any other subjects that are travelling with the survivor or may be related to her”. Whilst Mr Williams also proposed that someone “stay in contact with the survivor and her mother”, his email did not suggest that any other steps be taken to ensure that there was no such contact.

74. In his evidence, Mr Williams described more broadly the reason why, in a case where an allegation of sexual assault is made, the alleged suspect is “normally kept confined”, namely to “protect the safety and security of the alleged survivor, suspect, or other guests or crew and to ensure that there is no contamination of evidence nor evidence destroyed, that may be subject to police investigations”.

75. In this context a likely question for the captain and Mr Panagopoulos on receiving Mr Williams’ email was whether the giving of an undertaking by the respondent would provide sufficient assurance that there would be no contact between the respondent and A or her family, and in particular her mother. The evidence of Captain Sullivan and Mr Panagopoulos was that these matters were considered by them before the meeting with A and her mother. The primary judge rejected that evidence, leaving the position that these matters were not considered.

76. Whether such matters arose for consideration by the captain and his senior officers also depended in part on whether the captain was required to give effect to the guidance or directive contained in Mr Williams’ email, and irrespective of whether he agreed with it.

77. As to whether Global Security’s recommendation was to be treated as an instruction to be complied with, the captain’s evidence was clear and not challenged. He did not regard the email as constituting a direction with which he had to comply. That understanding was wholly consistent with the “guidance” language of the email (J[257]), and the evidence of Mr Warder and Mr Williams that they could offer guidance where there was a security incident, but did not have the authority to direct as to what must be done (J[138], [262]).

78. Each of the captain and Mr Panagopoulos gave evidence that the proposed undertaking would not sufficiently assure that there was no contact between the respondent and A and her family (see [58]-[59] above). In the case of Mr Panagopoulos, that evidence was not challenged. The effect of the captain’s evidence, given in cross-examination, was that there was a need to ensure that there was no interaction between those persons, and that the ship was unable to prevent that from occurring unless the respondent was held in confinement. As the captain said in an answer which was not challenged: “It would have been difficult to observe him the whole time”. This evidence is considered further at [105] below when dealing with an aspect of ground 4.

Disposition of grounds 2 and 3

79. To assist an understanding of what follows, it is convenient to set out the primary judge’s reasoning for rejecting this evidence, which is at J[406], [407] and [409]:

[406] The evidence of Mr Panagopoulos and Captain Sullivan, however, was contradicted by Mr Sreedharan’s evidence, documented in a contemporaneous statement file note and email, which stated that the Captain told A and her mother that he had received “a directive” to release the Plaintiff and that he “has to” release the Plaintiff. He stated that the Captain also had to explain that the Ship was not a law enforcement authority. After hearing the reaction of A’s mother he described that the Captain changed his position to look after the safety of the Plaintiff. Mr Sreedharan’s account is supported by the documented accounts of both Ms Castro and Mr Lawrence (neither of whom were called to give oral evidence). [emphasis added]

[407] In the circumstances I do not accept the evidence of both Mr Panagopoulos and Captain Sullivan on this point. I accept the unchallenged evidence of Mr Sreedharan supported by Ms Castro and Mr Lawrence that the Captain advised that he intended to release the Plaintiff in accordance with the “directives” of Global Security but determined not to following the reaction of A’s mother. I am fortified in this conclusion by the Defendant’s failure to call or explain the failure to call A’s mother. As to Captain Sullivan’s claim that as to his observations made of A at the time, they were not recorded by other witnesses and A was not called or her absence explained. However, even if they were accurate I cannot be satisfied that A’s condition was attributable to her reaction bearing in mind evidence of her other ill health. The evidence of Mr Sreedharan was that the Captain made the decision for the security and safety of the Plaintiff whilst the Captain stated that it was for the safety and security of all on board. Captain Sullivan acknowledged that he did not consider that A’s mother would be able to carry out the threats but wished to avoid a confrontation. The Defendant did not submit that in the face of A’s mothers’ threat and what might emanate from it entitled Captain Sullivan to continue to confine the Plaintiff. Nor was this particularised in its Statement of Issues amongst the asserted grounds for confinement. I do not accept that the Plaintiff was a continuing threat to A or her family. Such an allegation was not put in cross-examination of the Plaintiff and nor was it suggested by Captain Sullivan at the time he spoke to A or her mother. It is inconceivable that he would have even proposed to release the Plaintiff had he believed that to be the case. The Defendant in submissions appeared to accept an absence of evidence in this respect describing its actions as precautionary and necessary to prevent a counter factual scenario. It accepted that apart from declining to provide a statement, the Plaintiff had otherwise been cooperative. [emphasis added]

…

[409] The Captain’s approach to the meeting with A and her mother as I have found it, supports that he did not consider continued confinement was reasonably necessary for the preservation of order and discipline or for the safety of the vessel for the persons or property on board when he indicated his intention. Had it been otherwise he would not have communicated it as he did on the evidence. To the extent he changed his mind, I accept that he did so to prevent an interaction between A’s mother and the Plaintiff and for the safety of the Plaintiff. [emphasis added]

80. The applicant challenges the emphasised findings at J[406] and [407], which provide the basis for the emphasised finding at J[409]. In addressing those challenges, proper allowance must be made for the advantages of the trial judge, especially where they involve findings “which are likely to have been affected by impressions about the credibility and reliability of witnesses formed… as a result of seeing and hearing them give their evidence”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

81. In this case (as was also the position in Prouten v Chapman [2021] NSWCA 207), there is neither express reliance on demeanour nor express disavowal of reliance on demeanour in the primary judge’s rejection of this particular evidence of Captain Sullivan and Mr Panagopoulos. Nor, unlike the position in relation to the respondent’s evidence, does the primary judge make any general observation as to the reliability of the evidence of either of them (cf J[350]).

82. At J[406] and [407], the primary judge makes findings as to what Captain Sullivan said at the meeting; and at J[409] a finding as to his actual intention at the outset of the meeting. He does so by reference to evidence of Mr Sreedharan, which is described as “unchallenged” and as contradicting the evidence of Mr Panagopoulos and Captain Sullivan summarised at J[404] and [405].

83. If on analysis the matters expressly relied on did not justify the rejection of that evidence, this Court should in my view give effect to that conclusion and make findings based on the challenged evidence. To do otherwise would be to make an allowance for an advantage of the trial judge which is not referred to or implicit in his reasons for rejecting the evidence; and to do so in the above circumstances which make it unlikely that the captain would have changed his mind about the respondent’s continued confinement on the receipt of Mr Williams’ email.

84. Mr Sreedharan’s evidence was an undated 4 page statement which annexed a copy of his security incident statement dated 17 November 2016, and his evidence in cross-examination. His 4 page statement records in relation to the meeting with A and her mother that A’s mother “was not happy” when informed of Global Security’s “recommendation” that the ship release the respondent. It does not say that the captain said he intended to release the respondent or that he was required by Global Security to do so. Indeed the use of the word “recommendation” is not consistent with the primary judge’s findings as to what was said.

85. Mr Sreedharan’s security incident statement described Captain Sullivan as having informed A’s mother “that he has received directives from the office to release the suspect from isolation”. Whilst using the word “directives”, this evidence does not contain any statement as to what the captain intended to do (cf J[407]) or was compelled or felt compelled to do (cf J[406]). Mr Sreedharan’s evidence in cross-examination that the captain had informed A’s family “that he had been directed to” release the respondent took that written evidence no further.

86. That incident statement also gives as the reason for the happening of the “incident” involving A’s mother the captain’s having told her that “he has to release the suspect” (J[269]). It is unclear whether this answer records something in fact said or Mr Sreedharan’s one line summary of the message he understood the captain to be conveying. That lack of clarity and context leaves unexplained why the captain may have believed he “had” to release the respondent, if that is what he said.

87. None of this evidence in terms supports the specific findings made by the primary judge at J[406] and [407] as to what the captain said he intended to do and why. It follows that the finding at J[409] as to the captain’s state of mind immediately before the meeting – that he did not consider continued confinement was reasonably necessary – also is not supported by the evidence identified by the primary judge.

88. To the extent that Mr Sreedharan’s evidence supports a finding that Captain Sullivan informed A and her mother of the ship having received a directive from Global Security, it does not contradict, and indeed is consistent with the evidence of Captain Sullivan that he was “exploring the option” of releasing the respondent. One way of doing so was to test A and her mother’s likely reactions to the real possibility that the respondent could be released, and to do so by referring to a directive. That reference alone said nothing about whether the captain intended to release the respondent or regarded himself as bound to do so. For that reason, the making of such a statement by the captain did not contradict, and was not inconsistent with his evidence or that of Mr Panagopoulos (cf J[406]).

89. The statements of Mr Lawrence and Ms Castro take the matter no further. Neither “supports” a finding that the captain said that he intended to release the respondent in accordance with a direction. Mr Lawrence’s statement refers to Global Security having “requested” that the respondent be released, and contains no suggestion that the captain had made any decision (J[282]). Ms Castro’s statement describes the purpose of the meeting as being “to inform [A and her mother] about the decision made by Global Security to release the suspect”. That evidence is not consistent with any of the other evidence.

90. These conclusions make it strictly unnecessary to address the two matters described by the primary judge at J[407] as having “fortified” his conclusion that at the commencement of the meeting the captain intended to release the respondent and changed his mind because of the reaction of A’s mother. However, neither in my view provided evidentiary support for that conclusion.

91. As the first of those matters addresses the subject matter introduced by the second, it is convenient to start with the second. It is not correct that Captain Sullivan’s evidence as to his observation made about A’s reaction to being told that the respondent may be released was not recorded by any other witness. The captain’s evidence was that A “looked sick when I informed her of the guidance I had received”. Mr Panagopoulos’ evidence was that A “vomited when hearing [the respondent] would be released”. The correctness of the captain’s observation was not challenged in cross-examination. Nor was Mr Panagopoulos’ description of A’s reaction to what was said.

92. The first matter involves the drawing of adverse inferences, in reliance on the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, as to what was said at the meeting and observed as to A’s reaction. It is not obvious that those principles would have been engaged: in the case of A’s mother, because the applicant was not shown to have been aware of what evidence she might give on the relevant subject; and in the case of A, because the course of the evidence did not raise as an issue whether she reacted as described by the captain or Mr Panagopoulos.

93. For these reasons, grounds 2 and 3 are made out.

94. Accepting this evidence of Captain Sullivan and Mr Panagopoulos, the captain’s position in relation to the respondent’s continuing confinement following the meeting on 17 November was as summarised at [68] above, and included his “initial reasons” for confining the respondent as described at [43] above. That is, he continued to believe that the respondent’s confinement until the ship returned to Sydney was reasonably necessary to maintain the safety and security of passengers on the ship, and specifically of A and her family, the other persons involved in the incident, and the respondent. In this context the safety and security of passengers included A’s emotional well-being; and a significant risk to safety and security of those passengers was that of contact and any resulting conflict involving the respondent and A’s family. That was particularly so because of A’s mother’s reaction at the meeting, which was “highly charged and emotional”. The captain was also concerned to “preserve evidence” by preventing communications between the respondent and potential witnesses.

95. Three matters remain to be dealt with. The first is the subject of ground 1, and the second and third are within the subject matter of ground 4.

Disposition of ground 1

96. Ground 1 is that the primary judge erred in refusing to consider as circumstances justifying the respondent’s detention “the risk of [the respondent] interacting with A or her mother and the possibility that [the respondent] would interfere with investigations”. More generally, the primary judge’s reasons (J[407], [410]) suggest that the applicant may have been limited in the matters on which it could rely as justifying the respondent’s confinement to those set out in its statement of issues. There is no support for that suggestion in the transcript of the underlying proceeding, and no argument was made by the respondent that there was any procedural unfairness resulting from the applicant’s reliance on matters not described in any statement or schedule of issues.

97. Although the reasons for judgment refer to a “defendant’s amended schedule of issues” (J[407], fn 925; J[410], fn 931), the only relevant document in the material before this Court is undated and headed “Defendant’s Schedule of Issues”. In addition, the transcript refers to an “amended schedule of issues” which is there described by the applicant’s counsel as “addressing the question of quantum issues”.

98. That transcript indicates that issues concerning the matters on which the applicant relied as making it necessary to confine the respondent were addressed by reference to the amended pleadings and the particulars supplied in support of those pleadings.

99. The hearing commenced on 20 April 2020. At that time, the applicant sought to further amend its defence to plead more clearly its reliance on the defence of justification. That amendment was initially opposed. Following a request for and supply of particulars, the amendment was consented to on the morning of 21 April 2020.

100. Particulars were sought of the matters which were said to make it necessary for the “preservation of order on the vessel” that the respondent be confined. Those matters were described as “threats” to such order, and as identified in the particulars included: the respondent having any level of possible or actual engagement with relevant witnesses; the safety and wellbeing of A; the safety and wellbeing of any potential witnesses; and the contamination or destruction of any potentially relevant evidence.

96. These particulars were sufficiently broad to encompass the matters that are the subject of ground 1, which should be upheld.

Disposition of ground 4

102. There are two particular respects in which the primary judge held that it was not reasonably necessary to continue to confine the respondent beyond midday on 17 November.

103. First, at J[408], his Honour was not satisfied that, following receipt of the Global Security recommendation, it continued to be reasonably necessary for the ship to confine the respondent in order to “observe” his movements. In particular, his Honour suggested that the existing CCTV monitoring facilities could have been used to observe the respondent’s movements, making it unnecessary to confine him to a cabin.

104. Secondly, at J[412] the primary judge expressed the view that the respondent’s continuing detention in conditions “akin to solitary confinement for the remainder of the journey back to Sydney” was not reasonable in the circumstances.

105. As to the first of these matters, the captain was cross-examined as to the other steps he might have taken to avoid or “control” any conflict or incident involving contact between the respondent and A’s mother in the event that the respondent was not confined. He explained that there were “maybe 16” security guards to monitor and safeguard the 3000 passengers on the ship. It was suggested that if the respondent was free to use all of the facilities of the ship, the captain could nevertheless have taken steps to control any conflict that arose. He rejected that suggestion, saying that “[w]e can’t follow every single individual around the ship all the time” and that he could not confine people to particular places within the ship. The cross-examiner accepted that answer which, to make sense, is to be understood as addressing the ship’s ability to follow any individual around the ship all the time. Furthermore, doing so would not necessarily prevent contact, and therefore the possibility or likelihood of conflict. That being the position, in circumstances where he “needed to be sure that they didn’t meet”, the captain decided the safest thing was to confine the respondent.

106. The primary judge suggested that the ship’s CCTV facilities could have been used to observe and monitor the respondent’s movements around the ship. That possibility was not put to the captain in cross-examination. However, in answer to a question directed to whether the ship “could have observed to see whether [the respondent] complied with your request”, the captain answered, consistently with the evidence referred to above, that “it would have been difficult to observe him the whole time”. The cross-examiner accepted the correctness of that answer, which also indicated that it was necessary to confine the respondent if the objective was to ensure that there was no relevant contact or conflict. The primary judge erred in not being so satisfied.

107. As to the second matter, the primary judge’s “view” expressed at J[412] that the respondent’s confinement was “akin to solitary confinement” is not supported by any reasoning, or analysis of the evidence, which indicates otherwise.

108. Although the rooms in which the respondent was confined were small, and at least one of them was windowless, the evidence shows that the conditions of his confinement were the subject of consideration and oversight by the captain, as well as the consular officer Mr Allen, and that the respondent’s welfare was monitored, by a ship security officer every half hour or so as recorded in the log, by occasional visits of Mr Sreedharan and by Mr Allen’s daily telephone communications.

109. Neither the ship’s log nor any of the consular records suggests that the conditions were “akin to solitary confinement”, assuming that expression to describe being locked up alone for long periods of time. The respondent’s experience appears to have been significantly different. His welfare was regularly checked, both by security officers and the ship’s medical staff. In addition, he was given the opportunity to make twice daily visits to the crew deck, where he had access to the open air and the opportunity to smoke. He also had 24 hour access to food and non-alcoholic beverages, as well as the opportunity to acquire necessary clothing from the ship’s gift shop.

110. Finally, the evidence indicates that Mr Allen and the captain took an active interest in the respondent’s welfare during the period after 16 November. There is no criticism of the respondent’s living conditions in the consular records or a report of any complaint by the respondent to the consular officers about that subject. Nor is there any such complaint recorded in the ship’s confinement log.

111. For these reasons, the primary judge’s finding that the continuance of the conditions of the respondent’s confinement beyond midday on 17 November was unreasonable is not supported in the evidence and should be rejected.

112. Grounds 1 to 4 should be upheld, and a finding made that the justification defence was made out for the whole of the relevant period.

Conclusion

113. It follows that the appeal on liability should be allowed. Grounds 5 to 9 do not arise and need not be addressed, either in substance or in relation to whether they should be the subject of leave to appeal.

114. Accordingly the following orders should be made:

1. Grant leave to appeal on grounds 1 to 4.

2. Allow the appeal.

3. As to the proceedings in the District Court: -

1. Set aside the judgment for the plaintiff ordered on 22 December 2020.

2. Set aside the order for costs made on 19 February 2021.

3. Dismiss the statement of claim.

4. Order the respondent/plaintiff pay the applicant/defendant’s costs of the proceeding.

4. Order the respondent pay the applicant/appellant’s costs of the appeal.

115. LEEMING JA: I agree with Meagher JA.

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Amendments

29 June 2022 - At [28]: Insert “& 58” after “57”

At [30]: Amend pinpoint reference to Temperley’s Merchant Shipping Acts (7th ed, 1976, Stevens & Sons) from “1456” to “1455”

At [30]: Omit “5th ed” in reference to Halsbury’s Laws of England

At [33], 3rd sentence: insert “of” after “plea”

At [45]: remove references to primary judgment J[220]-[221].

At [48]: Amend “Crimes Act 2000 (ACT)” to “Crimes Act 1900 (ACT)”

At [50], 3rd sentence: amend “retained” to “detained”

At [106], final sentence: "not being satisfied otherwise" amended to "not being so satisfied"

Decision last updated: 29 June 2022