No one likes getting busted for fare evasion. My 16 year old self still gets a cold shiver at the thought of the “grey ghosts” hopping onto the train at Glenbrook. A 16 year old can only afford either a movie ticket, or a train ticket, not both right?
A recent case decided by the Court of Appeal involved a consideration of police powers to “detain” passengers to check whether they were in fact entitled to a concession ticket.
Hoang Thanh Le got off a train at Liverpool station on 14 January 2016. He was then approached by police and asked whether he had a ticket. Mr Le started to record the conversation on his phone. He replied that he did not have a ticket, but in response to a later query confirmed that he did have an Opal card (producing the regrettable comment from the policeman “So why are you being a smart ass for?”)
Mr Le’s Opal card was a concession card. He produced his concession card. The police then asked him for some photo ID. Whilst the conversation to this point had hardly been cordial it was then that Mr Le began to verbally challenge the Police. He asked why he needed to produced photo ID (noting that he was not driving) to which the Police replied that he was trying to verify his ID and said that Mr Le was obliged to produce it.
Mr Le refused to give any further ID. At that point he was told “you’re gonna have to wait here while we confirm who you are”. Whilst his identity was being checked on the radio, Mr Le asked if he could leave but was told that he was being detained until the ID checks were finished. Eventually Mr Le’s identity was confirmed and he continued on his way.
Proceedings were brought by Mr Le in the District Court alleging false imprisonment. At first blush this seems ridiculous. Mr Le was not arrested and the whole exchange lasted about 4 minutes. The biggest inconvenience seems to have been that he may have missed his next train.
There is a broader principle at stake here though. As we have written about a number of times in this column, the Police do not have unlimited powers and it is in everyone’s interest (including the Police’s) to make sure that their powers are clear.
The relevant principle here is what was described by the District Court Judge as “a right to a bundle of rights which are commonly called “the right to silence”. It was Mr Le’s argument that the Police were not given the right to detain Mr Le to confirm his identity by either clause 77C of the Passenger Transport Regulation (which does give the Police the right to direct a person to produce “evidence (for example, the person’s pensioner…..card) that the person is entitled to the concession ticket”) or by the Police power’s act commonly referred to as LEPRA.
In the District Court the Judge found for Mr Le on the basis that there was no entitlement under the Passenger Transport Regulation for the Police to detain Mr Le to demand he prove his identity. The Judge also found that although the Police had an honest belief that he was entitled to stop Mr Le under LEPRA because he thought there may have been an offence being commissioned (ie Mr Le might have stolen the concession card for example), that belief was not objectively reasonable. Mr Le had therefore been falsely imprisoned.
The decision was hardly a massive triumph for Mr Le however has the Judge awarded him damages of $3,000 only.
The Court of Appeal viewed things very differently. It drew the distinction between being “detained” on the one hand and arrest and imprisonment on the other. It said that there was an implied power for Police to “stop and detain” a person for the purposes of having the person producing the “evidence” required. Mr Le’s judgment was overturned.
The whole episode has taken on a life of its own, and occupied many more people and much more time than the incident giving rise to it. What’s the moral? Don’t catch a train, they’re never on time anyway.