SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor

1. [1]

   Two Indonesian nationals detained by the defendants from 26 February 2011 until 21 December 2011 bring an action for damages for false or wrongful imprisonment. They assert that a short period of their detention was unlawful. During that period they were in the custody of Stephen Michael Vasquez (the second defendant), a member of the Australian Federal Police or in the custody of those acting under the direction of the second defendant. By operation of statute, the Commonwealth of Australia (the first defendant) is liable for torts committed by members of the Australian Federal Police. [1]

2. [2]

   On 26 February 2011, members of the Australian Customs and Border Protection Service boarded “suspected illegal entry vessel 231” (SIEV 231) and took into detention a number of people, including the plaintiffs. The occupants of SIEV 231 were transferred to a Customs vessel and conveyed to Christmas Island for immigration processing and investigation. They arrived at Christmas Island on 6 March 2011. There is no dispute that, until their ultimate return to Indonesia on 21 December 2011, they were liable to be held in immigration detention as that expression is used in the Migration Act 1958 (Cth). The plaintiffs were treated as children by the Australian authorities until 30 June 2011. Until that point, they were held in a facility in Darwin designed for the accommodation or incarceration of children.

3. [3]

   On 30 June 2011, the plaintiffs were transferred from the Northern Immigration Detention Centre in Darwin to the Sydney Police Centre where they were charged with offences under s 233C(1) of the Migration Act. They were arrested at the Sydney Police Centre at around 10:15 am on 30 June 2011 and charged a short time later. Bail was refused at 2:15 pm and the plaintiffs were taken before a Magistrate at the Central Local Court. Neither plaintiff applied for bail and bail was refused. Thereafter the plaintiffs remained in custody (in a New South Wales adult gaol or remand centre) until, on the 8th and 13th of December 2011 respectively, the charges against each of them were discontinued. They were then returned to an immigration detention centre and removed to Indonesia on 21 December 2011.

4. [4]

   The plaintiffs submit that their arrest was unlawful and that they were wrongfully imprisoned as a result of their unlawful arrest.

5. [5]

   However, the plaintiffs concede that their detention was lawful after the Magistrate refused bail at around 2:30 pm on 30 June 2011.

6. [6]

   Further, until his submissions in reply at the end of the hearing, Senior Counsel for the plaintiffs accepted that the plaintiffs’ detention was lawful up until 10:15 am (when they were arrested and charged). However, in his submissions in reply, Senior Counsel submitted that the decision to arrest the plaintiff must have been made before they were transferred to Sydney and that, therefore, they were wrongfully imprisoned from 12:15 am on 30 June 2011 (that is, from the time that they were transferred from Darwin to Sydney). The plaintiffs submit that the transfer was for the purpose of arresting them, a process that was unlawful. The defendant objects to the plaintiff relying on this period when, in written submissions, they had relied only on the period between their being charged and the Magistrate refusing bail. The first question that must be resolved is whether the plaintiffs should be permitted to rely on the argument made in reply. The parties each made written submissions on that subject after the hearing.

Should the plaintiffs be permitted to rely on the period from 12:15 am on 30 June 2011 or be restricted to the period from 10:15 am on that date?

1. [7]

   The defendants object to the plaintiffs relying on the period commencing 12:15 am, which is the time of the removal of the plaintiffs from the facility in Darwin for the purpose of transferring them to Sydney. The objection has its genesis in the following written submission made on behalf of the plaintiffs:

2. [8]

   The reference to 10:15am is a reference to the time that the plaintiffs were brought to the Sydney Police Centre and arrested. It was not until his submissions in reply at the end of the hearing that Senior Counsel for the plaintiffs sought to rely on the period commencing at 12:15 am that morning. He explained the change in position by reference to the following exchange in the submissions of Queen’s Counsel for the Commonwealth:

3. [9]

   It was the reference in those submissions to the “die [being] cast” that provoked the change in the approach taken by Senior Counsel for the plaintiffs. [4] The submission is that if there had already been a decision to arrest, the illegality commenced prior to the plaintiffs’ arrival at the Sydney Police Centre.

4. [10]

   The defendant submits that allowing the plaintiffs to change their case at the very end of the hearing creates unfairness. Reliance is placed on the High Court’s decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.

5. [11]

   I have decided to allow the plaintiff’s to rely on the period commencing at 12:15 am. I can see no real prejudice to defendant for four reasons.

6. [12]

   First, paragraph 27a of the Further Amended Statement of Claim (FASOC) pleads and particularises the period of detention as commencing “on 30 June 2011 at approximately 00.15am”. Paragraphs 42-43 of the FASOC assert that “the period of detention … was without lawful justification”.

7. [13]

   Second, there is no application to amend the FASOC or any application to adduce additional evidence.

8. [14]

   Third, the evidence upon which the plaintiffs rely in support of the period commencing at 12:15 am was contained in annexures to an affidavit of their solicitor filed on 16 January 2015. [5] In each case, that evidence is in the form of a “Request For Service” whereby Serco (the Detention Services Provider for the Department of Immigration and Citizenship) was requested to collect the plaintiffs at 12:15 am on 30 June 2011 and “transfer clients to the Sydney Police Charge Centre located at 151-242 Goulburn Street Surry Hills” and “transfer custody of clients to the [Australian Federal Police]”.

9. [15]

   Fourth, the plaintiff accepts that the argument put in reply is put as “an alternative argument” [6] and that the argument “must be confined to what was pleaded in the FASOC”. [7] The plaintiff’s primary submission remains that they were wrongfully arrested at approximately 10:15 am. [8]

10. [16]

    This is a very different case to AON v ANU where there was an attempt to plead a different case very late in the proceedings. There is no significant prejudice to the defendants. Accordingly, I propose to allow the plaintiff to rely on the period commencing at 12:15 am on 30 June 2011.

A red herring: the age of the plaintiffs

1. [17]

   As the matter was argued, the plaintiffs’ case concerns a very short period of detention, either 4 hours and 15 minutes or (as argued in reply) around 12.5 hours. The brevity of the detention is not a relevant consideration in determining whether the plaintiffs have established their cause of action in false imprisonment and the plaintiffs do not have to prove damages to establish that tort. However, it is important that I bear in mind that the plaintiffs, represented by capable and diligent legal representatives, do not rely on the fact that after the plaintiffs were transferred to Sydney, they were treated as adults and detained in an adult gaol for many months. When they were first arrested and while they were in Darwin, the plaintiffs were treated as children and accordingly incarcerated in conditions more appropriate (I use the qualifier advisedly) to their status as children. Why they were then treated as adults is mystifying and disturbing. In the course of argument, Queen’s Counsel for the defendants explained candidly that there was a conflict between the approach taken by the immigration authorities and that urged by the Australian Federal Police:

2. [18]

   As I understand it, there was in fact no “solid ground” for the stance taken by the Federal Police and the use of wrist X-rays as conclusive proof of age has been subject of criticism, not least by the Australian Human Rights Commission (AHRC). [10] However, as the AHRC pointed out in its report that the Crimes Amendment (Age Determination) Act 2001 (Cth) authorised the specification of the procedure as a prescribed procedure for the determination of age for the purposes of the Crimes Act 1914 (Cth). Wrist x-rays were specified by regulation as a prescribed procedure for the purposes of the Crimes Act in 2001. [11] According to media reports, Sir Al Aynsley-Green, Britain's founding Children's Commissioner, says the Federal Police's use of X-rays to assess the ages of Indonesian crew members of asylum seeker boats is ''unethical, inaccurate, not fit for [the] purpose proposed and potentially unlawful.'' [12] Nevertheless, it received the sanction of the federal legislature until the repeal of the relevant regulation. [13]

3. [19]

   I can put these matters aside because the plaintiffs do not bring a case based on their detention in an adult remand centre after bail was refused or on the basis of negligence based around the Commonwealth or state authorities treating them as adults. In fact, as best I can discern, the age of the plaintiffs is not a matter of significance in the way that the present cause of action is articulated and pursued. That is not to say that it is entirely irrelevant as the plaintiffs point to the fact that, before being arrested, they were incarcerated in a facility designed for children. Once the decision to arrest them was made, they were taken to the Sydney Police Centre, arrested and taken before the Local Court.

4. [20]

   The FASOC asserts that the plaintiffs were each under the age of 18. The further amended defence denies this. On the evidence before the Court, I am satisfied that SU(the first plaintiff) was born on 5 April 1995 and that BS (the second plaintiff) was born on 17 August 1996. Accordingly, each was under the age of 18 at all material times. However, this fact is not critical to a resolution of the case and was not subject to cross-examination or dispute at the hearing.

5. [21]

   The plaintiffs, while referring to their age on a number of occasions, do not place particular reliance on their status as children to establish the cause of action. The age of the plaintiffs, in the context of the arguments before the Court, is something of a red herring.

The arrest of the plaintiffs was unlawful

1. [22]

   Rather, the plaintiff’s case is built on the proposition that their arrest at 10:15 am on 30 June 2011 was unlawful and that therefore they were unlawfully detained or wrongfully imprisoned up until the point that the Magistrate refused bail.

2. [23]

   I accept that the arrest was unlawful. Section 3W of the Crimes Act 1914 (Cth) provides:

3. [24]

   None of the reasons in s 3W(1) justifying the use of the arrest power (as opposed to securing the plaintiffs’ attendance by summons) existed in the case of the plaintiffs. There is no evidence that anybody in authority turned their mind to the provision in s 3W. There is no evidence that anybody in authority (a constable or otherwise) believed on reasonable grounds that proceedings by summons would not achieve any of the purposes referred to in sub-paragraphs 3W(1)(b)(i)-(vi). No doubt, because the plaintiffs were at all times in immigration detention, those who brought the charges against them did not see any relevant distinction between arresting them and bringing the charges by way of summons. Section 3W is in mandatory terms and the failure to comply with its provisions means that the arrest of each of the plaintiffs was unlawful.

4. [25]

   Accordingly, I find that the arrest of the plaintiffs at around 10:15 am on 30 June 2011 constituted an unlawful arrest.

5. [26]

   The plaintiffs placed reliance on the observations of Smart J in DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 where his Honour referred to the preference of issuing a summons rather than exercising a power of arrest in the case of minor offences where the defendant’s name and address were known and there was no risk of the person absconding. His Honour said at [35]:

6. [27]

   While these remarks are unquestionably correct, they are of less significance in a case where the offender is already lawfully in custody. There was no additional “ignominy” as a result of the charging process and no “escalation of the situation” as a result of anger engendered in the plaintiffs. The question here is whether the unlawful arrest of the plaintiffs resulted in their detention ceasing to be lawful.

The lawful detention of the plaintiffs

1. [28]

   The first defendant was entitled (or obliged) to detain the plaintiffs under the provisions of the Migration Act for the entirety of their stay in Australia. At all relevant times they were unlawful non-citizens and ss 189 and 196 required them to be kept in immigration detention until they were removed from Australia under s 198, deported under s 100 or granted a visa.

2. [29]

   Queen’s Counsel for the Commonwealth relied on what he described as “this umbrella of legality”. He argued that the fact that the arrest was unlawful due to the failure to comply with the provisions of s 3W did not mean that the plaintiffs’ detention was unlawful. The defendants rely on the definition of immigration detention in s 5 of the Migration Act:

3. [30]

   It will be seen that the places where the detainee can lawfully be held include a police station or watch house and a remand centre or prison. The defendants contend that this means that the imprisonment of the plaintiffs at the cells at the Sydney Police Centre (or, if taken there, the cells of the Central Local Court) was part of their lawful immigration detention. They submit that the unlawfulness of their arrest was of no legal consequence.

4. [31]

   As the case was argued, that question turns on whether the place and nature of the plaintiffs’ imprisonment changed as a result of the illegal arrest or the decision to proceed by way of arrest rather than summons. The plaintiffs relied on the following statement by Roden J in Collins v Downs & Ors (Supreme Court (NSW), Roden J, 14 December 1982, unrep):

The plaintiffs’ residual liberty

1. [32]

   Even while the plaintiffs were lawfully in immigration detention, they enjoyed what has been described as a right to “residual liberty”: see, for example, R v Mersey Care NHS Trust; Ex parte Munjaz [2005] UKHL 58; [2006] 2 AC 148 at [42]. This concept holds that even though a person is otherwise lawfully detained, they still enjoy those civil liberties that were not taken away expressly or by necessary implication: Ex parte Munjaz at [42] referring to Raymond v Honey [1983] 1 AC 1 at 10G (Lord Wilberforce) and Miller v The Queen [1985] 2 SCR 613.

2. [33]

   In Soh v Commonwealth of Australia [2008] FCA 520 Madgwick J rejected a case of false imprisonment where a Korean national was held in migration detention in a New South Wales prison. His Honour rejected the contention that “officers placed under a duty to detain people in immigration detention should lack the power, when bona fide thought necessary, to arrange for a person not initially detained in a prison later to be so detained.” However, his Honour held that the Commonwealth was required to afford procedural fairness to an unlawful non-citizen who was to be transferred to a state prison. His Honour said at [82]:

3. [34]

   The case of Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 was concerned with whether leave should be granted to two convicted prisoners to issue proceedings for wrongful imprisonment arising out of their detention in segregation. Adams J held that the case was “at least arguable” and granted leave saying at [63]:

4. [35]

   His Honour examined the decision of the Canadian Supreme Court in Miller v The Queen in which it was held that infringement of a prisoner’s residual liberty may support the writ of habeas corpus. His Honour noted at [52] that the decision had been approved by the New South Wales Court of Appeal in Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 (a proposition that is not free of controversy) and that the significance of this lay in the “endorsement [in Prisoners A-XX Inclusive] of the significance of the concepts of residual freedom and prison within a prison for the analysis of the character of unlawful detention in the prison context and the rejection of the alternative view, arising from a simpler age, that liberty is all or nothing”. Adams J also considered the decision of the High Court in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486:

5. [36]

   In Prisoners A-XX Inclusive, the Court of Appeal considered a case where fifty inmates “sought relief designed to ensure that they would have access to condoms while in gaol” [624B]. The main issue in the appeal concerned whether the writ of habeas corpus “will run where the conditions of detention of a prisoner are so harsh or ‘intolerable’ as to be unlawful” [627D] as opposed to the traditional case where habeas corpus “is available to secure the liberty of a person improperly detained”. Sheller JA (with whom Meagher and Powell JJA agreed) noted the distinction between two types of cases:

6. [37]

   Sheller JA discussed the conflict between the decision in Miller v The Queen and that in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 in which the House of Lords rejected the proposition that a prisoner enjoyed a form of residual liberty. While it was ultimately unnecessary to decide the issue, his Honour held that the judgment of Le Dain J in Miller v The Queen “provides powerful authority” in support of the proposition that “a prisoner enjoys a right of ‘residual liberty’ vis a vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison” [633E].

7. [38]

   It should also be noted that since the judgment in Prisoners A-XX Inclusive, the House of Lord decided Ex parte Munjaz. Lord Steyn (dissenting with Lord Brown in the outcome) adopted at [42] the decision in Miller v The Queen and declined to follow Hague. However, Lord Bingham (who formed the majority with Lords Hope and Scott) said at [30] that “the approach to residual liberty which appears to have prevailed in Canada does not, as I understand, reflect the jurisprudence of the European Court.” However, his Honour appeared to accept that a prisoner (or patient in that case) maintained “residual liberty to which he is properly entitled”.

8. [39]

   In State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 the Court of Appeal upheld a judgment for a prisoner (forensic patient) who had been detained in a gaol when the court order under the Mental Health Act 1990 (NSW) required her to be detained in a hospital. The State conceded that the detention was unlawful but submitted that she had already been deprived of her liberty by virtue of an earlier order and that it was not therefore liable for the tort of wrongful imprisonment (Bathurst CJ at [2]). This argument was rejected (Bathurst CJ at [5], Barrett JA at [94], Sackville AJA at [108]-[109]. Basten JA (with whom Hoeben JA agreed) concluded:

9. [40]

   As the defendants point out, there is (or may be) a distinction “between the elements of the remedy of habeas corpus and those of false imprisonment”: see Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [69] (Black CJ, dissenting in the outcome). It is also noted that cases such as Collins v Downs (a strike out application) and Sleiman v Commissioner of Corrective Services (leave to issue a proceeding) were only concerned with whether the particular cause of action was arguable. While so much may be accepted, the cases generally support the view that the concept of residual liberty has been accepted in Australia. I do not understand the defendants to seriously contest this proposition.

Was the plaintiffs’ right to residual liberty infringed?

1. [41]

   The plaintiffs contend that the nature of their detention changed from 10:15 am (or possibly from midnight the morning before). The decision to arrest the plaintiffs meant that they were taken to the Sydney Police Centre and detained in a police cell. They were imprisoned there for a purpose (arrest) that was not legally justified. This would not have occurred if they had been issued with a summons. It is conceded that there is no evidence as to precisely what would have happened had a summons been issued – presumably Serco would have arranged for the plaintiffs to be transferred to an immigration detention centre in Sydney and taken to Court when required by the summons. It would then have been for the Magistrate to determine what order, if any, needed to be made with respect to bail. There was no submission by the Commonwealth that a summons would not have been an effective way of securing the attendance of the plaintiffs at court. Whether they were arrested or summoned, those responsible for their incarceration would have been required to bring them to Court in accordance with direction from the relevant authority.

2. [42]

   The defendant submits that even if it is accepted that the arrest was unlawful, the detention of the plaintiffs was still legally justified because they remained at all times liable to be kept in immigration detention. Section 5 of the Migration Act defines immigration detention as including detention in a police station.

3. [43]

   The defendant relied on the High Court’s decision in Ruddock v Taylor (2005) 222 CLR 612 where the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ; Callinan J agreeing, McHugh and Kirby JJ dissenting) held at [24] that the question (in that case) of the lawfulness of the cancellation of the plaintiff’s visa should not be conflated with the true question in an action for false imprisonment, namely whether the detention itself was unlawful. Further, the first question is not determinative of the other. In Ruddock v Taylor, the plaintiff was a British subject who had lived in Australian since 1966 on a transitional permanent visa. In 1996, he was convicted and sentenced to imprisonment for a number of sexual offences against children. As a result his visa was (wrongly) cancelled and the High Court twice quashed the decision to cancel the visa. On each occasion the plaintiff was held in immigration detention. The action for false imprisonment arose as a result of those periods spent in immigration detention. The plurality stressed at [27] that s 189 of the Migration Act required the relevant officers to detain the person where the officer knows the person is an unlawful non-citizen but also where the officer reasonably suspects that the person has that status. At the time of the detention, the visa was cancelled and the officer reasonably held the belief required by the section. The fact that “the subject matter of the belief” was “legally inaccurate” did not alter the fact that the officer held the belief. Nor was it determinative of the question of whether the belief was reasonably based.

4. [44]

   This is a very different case. In the present case there is no doubt that the plaintiffs were, at least until the time of the decision to arrest them, lawfully in immigration detention. Further, in the present case, there was no evidence of any officer holding the reasonable belief required by s 3W of the Crimes Act. Nor could there have been such evidence. There was no sensible basis upon which an officer could have formed the opinion that “proceedings by summons against the person would not achieve one or more” of the purposes referred to in s 3W(1)(b). The Commonwealth did not submit that there was any reason that a summons would have been ineffective.

5. [45]

   Counsel informed me that the particular issue that arises in the present case has not previously been considered.

6. [46]

   While the plaintiffs concede that they cannot establish what would have occurred had they not been arrested unlawfully, this is a matter that may sound in damages. It is not determinative of the question of liability.

7. [47]

   What is clear is that the incarceration of the plaintiffs in the cells at the Sydney Police Centre was a direct result of the decision to (unlawfully) arrest them. It is not to the point that a police station is one of the places where a person might lawfully be held in immigration detention pursuant to s 5 of the Migration Act. The plaintiffs were not detained in the cells at the Sydney Police Centre as a result of being in immigration detention. They were there to be arrested, charged and dealt with as remand prisoners. In this respect, the legal nature of their detention was different. One of the residual liberties that the plaintiffs enjoyed was the right to be dealt with according to the law. This included the right not to be arrested contrary to the provisions in s 3W. Nothing in the Migration Act alters the requirements for a lawful arrest.

8. [48]

   Accordingly, they were wrongly imprisoned and there will be a judgment for each of the plaintiffs.

The period during which the plaintiffs were illegally detained

1. [49]

   The plaintiffs’ primary submission is that the period of wrongful imprisonment commenced at 10:15 am. The alternative argument is that the period commenced ten hours earlier when Serco collected them from the immigration detention centre and took them to Darwin Airport for transfer to Sydney. The FASOC asserts in paragraph 27a that “on 30 June 2011 at approximately 00.15am the First Plaintiff was arrested by Serco officers at the Children’s Detention Facility at the behest of the second defendant”. It makes the same allegation in relation to the second plaintiff.

2. [50]

   There is no evidence that either of the plaintiffs were arrested at that time. There is no dispute that Serco was authorised from time to time to arrange for the transfer of people in immigration detention from one place to another. The fact that they did so, under authorisation from an officer under the Migration Act, does not give rise to any illegality. I accept that the form of the request – that is, to take the plaintiffs to the Sydney Police Charge Centre and to transfer custody to the AFP – gives rise to an inference that a decision had been made to arrest the plaintiffs once they arrived in Sydney. However, that fact that does not mean that the legal nature of the plaintiffs custody changed at that point.

3. [51]

   I accept the plaintiffs’ primary submission and reject the alternative submission.

4. [52]

   Based on the concession made by the plaintiffs’ legal representatives, I am bound to accept that the period of wrongful imprisonment concluded at 2:30 pm when the Magistrate refused bail.

5. [53]

   Accordingly, I find that the plaintiffs were wrongfully imprisoned for a period of around 4 hours and 15 minutes, that is from 10:15 am until 2:30 pm on 30 June 2011.

Orders

1. [54]

   In each case I make the following orders:

   1. (1)

      Judgment for the plaintiff.

   2. (2)

      Question of costs reserved.

   3. (3)

      Plaintiff to file and serve any additional evidence in relation to the question of damages and costs on or before 26 February 2016.

   4. (4)

      Defendant to file and serve any additional evidence in relation to the question of damages and costs on or before 11 March 2016.

   5. (5)

      Parties to file and exchange written submissions on damages on or before 18 March 2016.

   6. (6)

      The matter will be listed for submissions on damages and costs on a date to be arranged in consultation between my Associate and the legal representatives of the parties.