The New South Wales Court of Appeal in State of New South Wales v Le [2017] NSWCA 290 has found that transport police had the power to detain a passenger for the purpose of checking that he had a valid Opal card for travel on public transport.
The passenger had been stopped by transport police at a train station and asked to produce his Opal card. The passenger produced an Opal card which bore the endorsement “senior/pensioner”. The passenger was then asked to produce his pensioner or student concession card. After producing a pensioner concession card, the passenger was asked to supply photo identification, such as a driver’s licence. He did not supply any form of photo identification, but, when asked, gave his date of birth. While his details were being checked over the radio, the passenger said “this is my train by the way guys. Can I …” An officer replied that until they had finished “you’re not leaving.” The passenger asked if he was under arrest and was told that he was not but that he was being detained to confirm that the card was his and was not stolen. Within a matter of seconds, the passenger was told that he was free to go.
The passenger brought proceedings in the District Court of New South Wales claiming damages for assault and false imprisonment. At the trial the claim for assault was abandoned. The claim for false imprisonment was upheld and the passenger was awarded damages in the amount of $3,201. The State sought leave to appeal from the judgment.
The Court of Appeal (Basten, Leeming and Payne JJA) unanimously granted leave to appeal, and allowed the appeal and set aside the award of damages.
Nature of the detention
The Court said that the label of “false imprisonment” was inappropriate in the circumstances because what had occurred was a brief interruption of the passenger’s intended progress – a temporary detention. Detention, the Court explained, involved a temporary deprivation of liberty and was distinct from arrest, which in turn was distinct from imprisonment and holding in custody (at [3]).
The Court said that the first question which arose in the case was to identify the nature of the alleged detention as a person would not be detained in the relevant sense if his or her departure from a planned course was:
- voluntary; or
- at the request or direction of another person, consensual; or
- as a result of the exigencies of everyday events, such as being caught up in a crowd (at [4]-[5]).
The test to be applied was objective in the sense that the Court had to determine what a reasonable person in the particular circumstances of the passenger would have inferred from the officer’s conduct (at [7]).
Applying this test, the Court found that the passenger’s participation in the events had been consensual up to the time that he had been told that “you’re not leaving”. However, from the time those words had been spoken, the Court said that it was reasonable to infer that the passenger had been non-consensually detained (at [9]).
Justification for the detention
As there had been a non-consensual detention, the question then arose as to whether there was legal justification for it. The Court found that the detention was justified on the basis of cll 77C and 77E of the Passenger Transport Regulation 2007 (NSW) (since repealed).
Cl 77C which dealt with concession tickets relevantly provided as follows:
“(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.
…
(2) The driver of a public passenger vehicle or an authorised officer may direct a person:
…
(c) who makes a concession ticket available for inspection under this Division,
to produce to the driver or authorised officer evidence (for example, the person’s pensioner or student concession card) that the person is entitled to the concession ticket.
(3) A person who is given such a direction must immediately comply with it.
…
(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.”
Under cl 77E, a person was required to make his or her ticket available for inspection by an authorised officer on that officer’s request if the person, amongst other things, was on or had just left a public passenger vehicle, or was on a train or was in or had just left the restricted area of a station. The Court said that, for the purposes of cl 77C(2), it appeared that the Opal card had been made available for inspection to the officer on request pursuant to cl 77E (at [11]).
Two issues then arose as to the operation of cl 77C(2). The first issue was whether the officers had been entitled to direct the passenger to produce a driver’s licence or some other form of photo identification as “evidence” that he was entitled to the concession ticket (at [14]). The passenger argued that they were not because the production of either of the two concession cards (the person’s pensioner or student concession card) had exhausted the scope of the officers’ powers. However, the Court rejected this argument for the following reasons (at [15]):
- It appeared to substitute the word “either” for the phrase “for example” by requiring that either one or other card was sufficient.
- It gave no work to the word “evidence”, terminology which was not readily equated with a simple requirement to produce an appropriate concession card.
The passenger then argued that the Court should consider whether the request for further identification had been ‘reasonable’, according to some objective standard. This argument was also rejected for the following reasons (at [16]-[17]):
- The purpose of cl 77C(2) was to allow an officer to verify that the person who had produced a concession ticket was entitled to it. While the request for further information had to be made in good faith by an officer who did not know who the ticket holder was, where the production of the concession card did not allow that link to be made, it was not unreasonable for the officer to seek further evidence, which in this case had been provided in the form of a date of birth.
- The term “evidence” referred to a document or information sufficient to satisfy the relevant officer of the connection between the person being questioned and the entitlement to a concession ticket. While, arguably, the officer’s determination as to sufficiency could be challengeable on judicial review grounds, the Court was not entitled to form its own opinion, as opposed to testing the rationality and good faith of the opinion formed by the officer.
The second issue which arose as to the operation of cl 77C(2) – described by the Court as the “critical question” – was whether cl 77C(2) carried within it an implied power to stop and detain a person for the purpose of the giving of a direction and the production of evidence as there were no express words authorising an officer to require a person to stop, listen to the direction and remain until the inquiry had been completed (at [18]-[19]).
On this issue, the Court said that the conferral of a power under cl 77E to request a ticket for inspection, subject to a penalty for non-compliance, necessarily implied a power to make the request and, if necessary, to stop the person to allow the request to be made and responded to, and that the same reasoning applied to cl 77C(2). Therefore, the steps taken by the officer to direct the production of evidence demonstrating entitlement to the concession ticket carried with it the implied power to detain the person whilst those steps were undertaken (at [19]). The Court further said as follows (at [19]-[20]):
- The fact that cl 77C(3) required that the person “immediately comply” with the direction demonstrated that the time of the detention would be short and that a failure to comply would form the basis for taking other steps, including arrest if an offence had been committed, although that stage had not been reached in the case in question.
- To impose a tighter constraint on the powers conferred by cl 77C(2) would not give best effect to the purpose of the legislative scheme because it would force officers to move immediately to exercise their far more intrusive powers of arrest when confronted with non-compliance.
Accordingly, the Court concluded that the officers were justified in the steps they had taken in stopping and detaining the passenger in order to obtain production of his Opal card and evidence of his entitlement to a concession card.
