This case concerns the powers of police to restrain the driver of a motor vehicle while they are impounding or immobilising that vehicle. The case is interesting because as a result of the trial judge’s erroneous jury directions, the actual issue raised on the pleadings was never considered by the jury, namely whether the applicant had, objectively, been restrained for the time reasonably necessary “to impound a motor vehicle”. Instead, the jury was only asked to consider whether the defendant had been restrained for the time reasonably necessary as deemed by the police. As a result of these incorrect directions, the Court of Appeal held that there had been a miscarriage of justice and entered judgment in favour of the applicant.
Sofronoff P and Morrison and Philippides JJA
23 June 2020
Mr Walker, the applicant, was charged for “hooning” offences. The basis for the charge was that Mr Walker had performed a burn out. Mr Walker had performed a U-turn and while he accepted that the car momentarily lost traction, he denied that that he had performed a burn out. At the time of the alleged offence, Mr Walker was returning to the hospital where his father was about to be admitted to palliative care. .
After Mr Walker was pulled over by two police officers, he was advised, by Senior Constable Ahrens, that he would be issued an infringement notice and that his car would be impounded for 90 days. Despite explaining to the police officers that his father was in a critical condition in the hospital, Senior Constable Ahrens required Mr Walker to wait for the arrival of the tow truck driver so that he could serve Mr Walker with the necessary documents. Mr Walker was told that if he attempted to leave, he would be arrested. .
After a Magistrate dismissed the charge against him, Mr Walker brought a claim for false imprisonment and malicious prosecution against the State of Queensland. He alleged that for the two hour period that the police officers required him to wait at the scene he was falsely imprisoned. –. Both claims were dismissed by a jury. Mr Walker appealed only against the dismissal of his claim for damages for false imprisonment. .
Section 75 Police Powers and Responsibilities Act 2000 confers powers upon police officers with respect to impounding or immobilising motor vehicles. The key provision on appeal was s 75(1)(b), which empowers police officers to require a driver of a motor vehicle, if it is stationary, to remain at the place where it is stopped for the time reasonably necessary. .
Acknowledging the intrusive nature of these powers, Sofronoff P noted that, in accordance with the introductory words of the provision, the only purpose for which it may be used is to impound a motor vehicle. .
Section 78 provides for notice to be given that a vehicle has been impounded. Section 78(2)(a) provides that “[a]s soon as reasonably practicable, a police officer must give a written notice in the approved form (impounding notice) of the impounding … [to] the driver of the motor vehicle”. Section 78(7) provides that the notice “must be given personally to the driver”. .
Decision of the Court of Appeal
The central issue on appeal was the learned trial judge’s directions to the jury. The Court of Appeal (Sofronoff P with Morrison and Philippides JJA agreeing) held that the trial judge’s directions (see –) contained “serious errors of law ”. . At the heart of the errors was the lack of direction given to the jury about the limited purpose of the powers contained in s 75, namely that the powers may only be exercised by police officers in order to impound a motor vehicle. The jury was not directed to consider whether the restraint of Mr Walker was required by the police officers in order to effect the impoundment of his car. .
In summing up, the trial judge said:
“So question 10:
Has the defendant proven the Officer Ahrens required the plaintiff to remain at the roadside for the time reasonable necessary?” .
Sofronoff P explained that this question lacked the pivotal words “for the purpose of impounding the plaintiff’s vehicle”. . The Court noted that this error was compounded by further directions of the learned trial judge. –. The directions were such that the jury were given an erroneous understanding that (i) whether a period of restraint was “reasonably necessary” was a matter to be assessed by the police officer and; (ii) “mere convenience” could justify restraint. –. The trial judge and both counsel had also incorrectly proceeded on the basis that personal service of the impoundment notice would justify the police detaining Mr Walker at the scene to allow for service of the documents. .
The Court of Appeal explained that the power in s 75 cannot be used to require a driver to remain solely for the reason that it is more convenient for the police officer to serve the documents at that point in time. Further, the Court held that the determination of whether the period of restraint was “reasonably necessary” is assessed objectively. .
Although the applicant’s counsel did not object to the directions, the Court held that the effect of the directions was such that “the jury was never directed to consider the actual issues in the case and, as a result, there has been no trial of the issues between the parties”. –. Instead, the jury was asked to consider whether the defendant had established a defence which the law does not provide. The actual issue raised on the pleading was never considered, namely whether the applicant had been restrained “to impound a motor vehicle” and, if so, whether he had been restrained “for the time reasonably necessary”. As the trial was not conducted according to law, the Court held there had been a miscarriage of justice. . The Court entered judgment in favour of the applicant. .
A Hughes of Counsel