A case of wrongful and unfair detention
On 26 Feb 2011, members of the Australian Customs and Border Protection Service boarded a “suspected illegal entry vessel 231” and took into detention a number of people including the two Indonesian plaintiffs. They were conveyed to Christmas Island Detention Centre on 6 March 2011 for immigration processing and investigation. The plaintiffs were detained for an overall period of nine months and 25 days (26 Feb., 2011 – 21 Dec., 2011).
The two plaintiffs were in the custody of the second defendant Stephen Michael Vasquez, a member of the Australian Federal Police. However, the Commonwealth of Australia (first defendant) is liable for torts (civil wrong) committed by members of the Australian Federal Police.
Prior to 30 June 2011, the plaintiffs had been transferred to the Northern Immigration Detention Centre for children in Darwin.
On 30 June 2011, at approximately 12.15 a.m., the plaintiffs were transferred from Darwin to Sydney Police Centre where they were subsequently charged with people smuggling under Section 233C(1) of the Migration Act 1958. They were arrested at Sydney Police Centre at 10:15 a.m. and charged a short time later. The plaintiffs were taken before a magistrate at Central Local Court where bail was refused at 2:15 p.m.
The two plaintiffs remained in custody in a New South Wales adult prison on the 8th and 11th December respectively, until the charges were discontinued and returned to an Immigration Detention Centre.
The plaintiffs were then returned to Indonesia on 21 December 2011.
The plaintiffs submit that their arrest was unlawful and that they were wrongfully imprisoned as a result of their unlawful arrest.
There were 4 issues before Hamill J in the Supreme Court of New South Wales:
1. Whether the plaintiffs were permitted to rely on the period from 12:15am on 30 June 2011 (when they were transferred to Sydney Police Centre) or be restricted to the period from 10:15am (when they were arrested at Sydney Police Centre) to establish an unlawful detention.
Senior Counsel for the plaintiffs had initially accepted that the plaintiffs’ detention was lawful up until 10.15am (when they were arrested and charged in Sydney). However, it was not until the end of the hearing that Senior Counsel for the plaintiffs then raised that they were wrongfully imprisoned from 12:15 a.m., as a decision to arrest them had already been made prior to the transfer from Darwin to Sydney.
The defendants objected to this.
The defendants relied on the High Court case of Aon Risk Services Australia Limited v Australia National University  HCA 27; 239 CLR 175 and submitted that they were not allowed to raise this point at the end of a hearing as it creates unfairness.
This case concerned an attempt to plead a different case very late in the proceedings.
However, Hamill J allowed the plaintiffs to rely on the period commencing at 12:15 a.m. for the following reasons:
- There was no significant prejudice to the defendants.
- The Further amended Statement of claim plead and particularised the period of detention as commencing on 30 June 2011 at 12:15 a.m.
- There was no application to amend the further amended Statement of claim or adduce additional evidence.
- Evidence of plaintiffs submissions were contained in annexures to an affidavit.
- Plaintiffs accepted that the argument was only put as ‘an alternative argument’ and that the ‘argument must be confined to what was pleaded in the Further amended Statement of Claim.’ The plaintiffs’ primary submission is still that they were wrongfully arrested at approximately 10:15 a.m.
Although Hamill J allowed the plaintiffs to rely on the period commencing at 12:15 a.m., his Honour accepted the primary submission instead of the “alternative” argument; that the period of wrongful imprisonment commenced at 10:15 a.m.
His Honour stated that there was no evidence that the plaintiffs had been arrested at 12:15 a.m. The fact that Serco (the detention services provider for the Department of Immigration and Citizenship) was authorised to arrange the transfer of people in immigration detention from one place to another, did not give rise to an illegality under the Migration Act.
Hamill J ultimately found that the plaintiffs were wrongfully imprisoned for a period of approximately four hours and 15 minutes (from 10:15 a.m. – 2:30 p.m. on 30 June 2011).
2. Whether the age of both plaintiffs is irrelevant (“red herring”).
Hamill J accepted that the plaintiffs were born in 1995 and 1996 and were under 18 years of age.
However, his Honour stated that the age of both plaintiffs was not ‘a matter of significance’ or ‘critical to the resolution of the case’ but it is not to say that “it is entirely irrelevant”.
His Honour emphasised that Criminal Defence counsel for the plaintiffs did not bring a case based on their detention in an adult prison after bail was refused, nor did they raise a claim of negligence against the Commonwealth or State authorities for treating the plaintiffs like adults when in fact they were children.
Since the case did not concern the former or latter, and even if the plaintiffs made mention of the ages of the plaintiffs, reliance was not placed on age to establish a decision.
3. Whether the arrest of the plaintiffs was unlawful.
Hamill J accepted that the arrest made at 10:15 a.m. was unlawful.
His Honour relied on section 3W of the Crimes Act 1914 (Cth) which set out the principles governing the “power of arrest without warrant by Constables”.
Section 3W provides:
(1) A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code ) if the constable believes on reasonable grounds that:
(a) The person has committed or is committing the offence;
(b) Proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
The plaintiffs also relied on the case of DPP v Carr  NSWSC 194; 127 A Crim R 151, where it was preferred that a summons be issued instead of exercising a power of arrest for minor offences where the defendant’s name and address were known and where there was no risk of the person departing and no reason to believe that a summons will not be effective.
This case emphasised the consequences of arrest powers at highlighting that it escalates the situation leading to the person resisting arrest and assaulting police.
Hamill J stated that there was no evidence that anyone in authority turned their mind to this Section 3W and no evidence that any constable or otherwise, believed that proceedings by summons would not achieve any of the purposes in 3W.
His Honour concluded that section 3W “is in mandatory terms” and failure to comply will result in an unlawful arrest.
Additionally, the plaintiffs were already in lawful custody so it was impossible for authorities to have believed plaintiffs would be at risk of departure.
4. Whether the unlawful arrest of the plaintiffs resulted in their detention ceasing to be lawful.
The defendants were allowed to detain the plaintiffs under sections 189and 196 of the Migration Act 1958 (Cth) for the “entirety of their stay in Australia”.
The defendants argued that the fact that the plaintiffs were unlawfully arrested did not mean that the plaintiff’s detention was unlawful.
Hamill J stated that this issue turns on the question of 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.
Defendants submitted that the imprisonment of the plaintiffs in the Sydney cells was ‘part of their lawful immigration detention’ and that the unlawfulness of the arrest has no legal consequence.
The plaintiffs submitted that the nature of the plaintiffs’ detention changed from 10:15 a.m. as they were imprisoned in a cell at Sydney Police Centre because of an arrest that was not legally justified.
Another point that had to be considered was whether the plaintiffs’ right to residual liberty had been infringed.
The defendants relied on the definition of ‘immigration detention’ under Section 5 of the Migration Act 1958 (Cth) in order to prove that detention was lawful even if the arrest wasn’t. Immigration detention means being held by, or on behalf of, an officer;
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a state or a territory; or
(iii) in the station or watch house.
Further, the Supreme Court relied on the following cases to determine whether the plaintiffs’ residual liberty had been infringed:
- Soh v Commonwealth of Australia  FCA 520 – where Madwick J rejected a case of false imprisonment of a Korean national who was held in migration detention in a NSW prison. His Honour rejected the fact that officers who have a duty to detain people in immigration detention should lack the power to arrange for a person not initially detained in a prison later to be so detained. However this case emphasises that the Commonwealth is required to afford procedural fairness to an unlawful non-citizen who was to be transferred to a state prison. Immigration detainees have the protection of Australian law as well as liabilities under it.
- Sleiman v Commissioner of Corrective Services  NSWSC 304 – whether leave should be granted to 2 convicted prisoners to issue proceedings for wrongful imprisonment arising out of detention of segregation. Leave was granted – “though much of a prisoner’s liability is taken, some of it is retained and that, though it might not be great yet is important and will be protected.”
- Miller v The Queen  2 SCR 613 – infringement of a prisoner’s residual liberty may support the writ of habeous corpus. Approved by NSWCA in Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.
- Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs  HCA 36; 219 CLR 486 – unlawful non-citizen left an immigration detention centre without permission and was charged with ‘escaping immigration’ under the Migration Act. He argued that conditions in the centre were so intolerable and went beyond anything necessary for immigration purposes and thus, was not held in ‘immigration detention.’ However, the majority in the High Court held that the conditions of detention were immaterial to the legality of detention.
- Bennet v Superintendent, Rimutaka Prison  NZCA 286;  1 NZLR 616 – it was concluded that habeous corpus was not available to release prisoners from maximum security/non-voluntary segregation in an isolation cell where they were subject to a lawfully imposed sentence. The court’s opinion was that “a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention for the purposes” of the writ of habeous corpus.
- State of New South Wales v TD  NSWCA 32; 83 NSWLR 566 – Court of Appeal upheld a judgment for prisoner who had been detained in gaol instead of being detained in a hospital as required.
- Ruddock v Vadarlis  FCA 1392 – there is a distinction between the elements of the remedy of habeous corpus and false imprisonment.
Hamill J stated that what would have occurred had the plaintiffs not been arrested unlawfully, is not determinative of the question of liability.
His Honour held that the plaintiffs were not held in the cells at Sydney Police Centre as a result of being in immigration detention. Instead, they were detained to be ‘charged, arrested and dealt with as remand prisoners.’
Hamill J noted that the nature of the plaintiffs’ detention was different.
His Honour accepted that the cases mentioned support the acceptance of residual liberty in Australia. He identified one of the residual liberties that plaintiffs should enjoy is the right to be dealt with according to the law which includes the right not to be arrested contrary to the provisions in 3W.
Hamill J subsequently held that the plaintiffs were wrongfully imprisoned.
1) ‘Alternative arguments’ raised in reply after a hearing can be accepted, so long as there is no significant prejudice, plaintiff accepts it is only an ‘alternative argument’ and there is evidence of such an argument in either statement of claim, affidavit, attached as annexures etc.
2) Section 3W of the Crimes Act 1914 (Cth) is in mandatory terms and the failure to comply with its provisions means that the arrest of each of the plaintiffs was unlawful.
3) In order to determine whether the unlawful arrest of a plaintiff resulted in their detention ceasing to be lawful, the following points need to be considered:
i. Whether the incarceration of the plaintiff was a direct result of the decision to unlawfully arrest them; and
ii. 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.
iii. Whether a plaintiff’s residual liberty has been infringed (i.e. the right to be dealt with according to the law).
4) Brevity (length) of detention is not a relevant consideration in determining whether plaintiffs have established their cause of action in false imprisonment.
5) Plaintiffs do not have to prove damages to establish the tort of false imprisonment.
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