Intoxicated, slurring and aggressive - Barker v Commonwealth of Australia [2016] QSC 310

Background

The plaintiff was intoxicated, aggressive, swearing, slurring and using abusive language when he arrived on a flight at Brisbane International Airport. He was asked to remain in the vicinity of the aircraft after landing and was arrested by AFP officers a short time later. During his arrest, the plaintiff sustained injuries to his left leg and ankle.

In proceedings in the Supreme Court of Queensland, the plaintiff claimed the torts of false imprisonment, assault, battery and negligence.

Judgment

There was a dispute on the evidence as to the plaintiff’s level of intoxication and actions in seeking to resist the arrest. Jackson J noted that the plaintiff’s account of events differed in substance from all other witnesses. He found that the plaintiff was heavily affected by alcohol at the time of the arrest and that his evidence was largely a reconstruction.

The plaintiff did not challenge the lawfulness of his arrest. His claim for false imprisonment was limited to the period in which he was directed to remain on the tarmac until the time of his arrest. The evidence of witnesses was that upon being requested to remain on the tarmac, the plaintiff did so voluntarily. He did not ask whether he was free to leave. He did not insist on being allowed to leave. He was not told that he could not leave, although he was requested to remain by AFP representatives in apparent authority. Jackson J found that there was no serious case of false imprisonment on the facts. The plaintiff was reasonably requested and then directed to wait while AFP representatives investigated the complaint that had led to the request for their their attendance. The directions given did not of themselves amount to a false imprisonment by overbearing the plaintiff’s will.

The plaintiff alleged that the force used during his arrest was excessive, causing an injury to his left leg. Considering the evidence as to the plaintiff’s actions and that of the AFP officers, section 14B of the Australia Federal Police Act 1979 (Cth) and the common law including Majindi v Northern Territory (2012) 31 NTLR 150, 165 [44]; Slaveski v Victoria [2010] VSC 441; Johnson v Northern Territory of Australia [2016] NTSC 49, Jackson J found that it could not be concluded that the force used by the AFP officers in carrying out the plaintiff’s arrest was unreasonable or unnecessary.

In the alternative, the plaintiff alleged that the injury to his left leg was caused by the negligence of the AFP officers. Jackson J found that the plaintiff claim in negligence was misconceived as there was no duty of care owed to him; Dowse v New South Wales (2012) 226 A Crim R 36, 51 [52]; State of Victoria v Richards (2010) 27 VR 343, 346 – 348 [14] 1 [17].

Implications

The decision by Jackson J upholds the statutory authority given to law enforcement to use reasonable force in the execution of its duties. The force that is reasonable will depend upon the factual matrix of each individual matter, and the existence of an injury is not in itself determinative that the force used was excessive.