Court finds it is lawful to detain evidence of Opal card concession

State of New South Wales v Le [2017] NSWCA 290

On 14 November 2017 the NSW Court of Appeal held that Mr Le was lawfully detained by police for the purpose of producing evidence of his Opal concession.

This case is authority for the principle that:

1. Drivers of public passenger vehicles or authorised officers designated by Transport for NSW have the power to request not only a person’s Opal concession, but proof of the person’s entitlement to concession; and
   
   
2. Drivers and authorised officers are entitled to detain persons for the purpose of checking their entitlement to concession.

Background

On 14 January 2016, Mr Le was stopped by police officers at Liverpool railway station and asked to produce his Opal card. He produced his ‘Senior/Pensioner’ Opal card and a pensioner concession card. He was then asked to produce photo identification, but refused. He was informed he was not free to leave. When asked, he provided his date of birth. The police officer checked Mr Le’s details over the radio and, after satisfying himself that Mr Le was entitled to the concession, informed Mr Le that he was free to go. In total, Mr Le was detained for approximately 4 minutes and 15 seconds.

District Court decision

Mr Le commenced proceedings in the District Court claiming damages for false imprisonment and assault.

At trial, the police officers gave evidence that they requested photographic ID pursuant to clause 77C(2) of the Passenger Transport Regulation 2007 which states that “the driver of a public passenger vehicle or an authorised officer may direct a person…who makes a concession ticket available for inspection under this Division…to produce to the driver or authorised officer evidence (for example, the persons pensioner or student concession card) that the person is entitled to the concession ticket”.

On 9 March 2017 the primary judge, Dicker SC DCJ, gave judgment for the plaintiff in the sum of $3,201 for false imprisonment. His Honour found that r. 77C(2) did not permit authorised officers to request evidence other than the pensioner or student card itself, and that therefore Mr Le was unlawfully detained.

The State sought leave to appeal from that judgment.

Court of Appeal decision

On 16 November 2017 the Court of Appeal, comprised of Basten JA, Leeming JA and Payne JA delivered judgment for the State of New South Wales.

The Court of Appeal found that the purpose of r. 77C(2) is to “allow the officer to verify that the person who has produced a concession ticket is entitled to it” and that as such, where the production of the concession card did not allow that link to be made: “it was not unreasonable of the officer to seek further evidence”.

The Court also held that r. 77C(2) carries with it an implied power to stop and detain a person for the purpose of carrying out the exercise which it envisages, namely the giving of a direction and the production of evidence. It was therefore lawful for the police officers to take steps in stopping and detaining Mr Le to obtain production of his Opal card and evidence of his entitlement to a pensioner concession card.

The Court allowed the appeal and set aside the District Court judgment.

Implications

The Court of Appeal’s decision is sensible. It confirms that police and authorised officers have the necessary powers to ensure that a passenger who presents a concession is entitled to the concession.

The court is not prescriptive as to what will satisfy police and authorised officers of an entitlement to concession. In Mr Le’s case, he was unable to present a driver’s licence and the officer was satisfied with his date of birth. Police and authorised officers retain the discretion to interact with passengers to best meet their individual needs.

That passengers are required to wait whilst police and authorised officers make the necessary inquiries. The court envisages this as a temporary disruption to travel, which is part of day to day life.

The Passenger Transport Regulations 2007 were repealed and replaced this year, however the 2017 regulations include provisions identical to s. 77C. This decision still applies.