In State of New South Wales v Le  NSWCA 290, the NSW Court of Appeal (“the Court”) has overturned a decision by the NSW District Court that saw a man stopped by transport police awarded damages of $3201 for “false imprisonment”. The Court found that “the officers were justified in the steps they took in stopping and detaining the respondent” [at 23] and allowed the appeal.
The State of NSW (“the State”) required leave to appeal from the District Court judgement, as the amount involved was less than $100,000. The State argued that “the case raised an issue of general public importance as to the powers of police officers to detain persons for the purpose of checking that they have a valid Opal card for travel on public transport” [at 1]. They also tendered a document which suggested that fare compliance has been decreasing and that they estimated they had lost $54.2 million to fare evasion in the first six months of 2016. The Court accepted this argument and allowed the appeal on the conditions that the State paid the reasonable costs of the respondent in the case.
The respondent in the case was stopped by transport offices at Liverpool railway station in January 2016. He was asked to produce his Opal card, and then his senior/pensioner concessioner card. The respondent produced both cards, and was then asked for photo identification. The respondent disputed the need to supply photo identification, but supplied his date of birth. The transport officer then said the respondent would need to wait until they confirmed who he was, and used his radio. According to the judgement, the respondent then said “this is my train by the way guys. Can I …” and the following exchange took place:
“OFFICER: That’s fine. Until we finish here you’re not leaving.
LE: Am I under arrest?
OFFICER: No you’re not, you’re being detained.
LE: What for?
OFFICER: To confirm that this is you, that this card isn’t stolen.” [at 9]
Shortly afterwards he was told that he was free to go. According to the Court decision, “[a]t the point where the officer expressly told him “you’re not leaving”, it is reasonable to infer that he was then being non-consensually detained. That exercise of power required justification.” [at 9]
The State argued that the detention was justified under clause 77C of the Passenger Transport Regulation 2007 (NSW) (which was repealed on 1 September 2017 and replaced with the Passenger Transport (General) Regulation 2017 (NSW)). The relevant clauses excerpted in the case were:
77C Concession tickets
(1) A person must not travel, or attempt to travel, on a public passenger vehicle or train on the authority of a concession ticket unless the person is entitled to the concession ticket.
Maximum penalty: 5 penalty units.
(2) The driver of a public passenger vehicle or an authorised officer may direct a person:
(c) who makes a concession ticket available for inspection under this Division,
to produce to the driver or authorised officer evidence (for example, the person’s pensioner or student concession card) that the person is entitled to the concession ticket.
(3) A person who is given such a direction must immediately comply with it.
Maximum penalty: 5 penalty units.
The Court considered whether this clause entitled the officers to ask the respondent to produce his driver license in order to determine his entitlement to the concession ticket. The Court found that the word “for example” did not suggest the officers were limited to enquiring for the two named cards, and that the word “evidence” allowed a broader scope.
The Court found that:
“the conferral of a power (under cl 77E) to request a ticket for inspection, subject to a penalty for non-compliance, necessarily implies a power to make the request and, if necessary, stop the person to allow the request to be made and responded to. The same reasoning applies to cl 77C(2). Accordingly, the steps taken by the officer to direct the production of evidence demonstrating entitlement to the concession ticket carries with it the implied power to detain the person whilst those steps were undertaken. The fact that subcl (3) requires that the person must “immediately comply” with the direction demonstrates that the time of the relevant detention will be quite short. A failure to comply will form the basis for taking other steps, including arrest, in relation to the commission of an offence. That stage was not reached in the present case.” [at 19]
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State of New South Wales v Le  NSWCA 290
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