August 30, 2022

Richard Walker had driven from his home in Darra to the Sunshine Coast hospital to meet with the palliative care team to discuss his father’s rapidly declining health.

To settle his nerves after arriving early, he drove to a nearby service station on the Nicklin Way at Kawana to buy cigarettes.

Wrongful Imprisonment At Roadside; Police Fail On Nuremberg Defence On leaving the 7-11 servo, he drove north before doing a U-turn back towards the hospital.

That manoeuvre caught the attention of traffic police who – deeming it a “burnout” – pulled him over to impound his vehicle for the “hooning” offence.

His pleas to be allowed to return to the hospital while detained from 10:00 am until 11:20am were denied by the two constables while they completed the vehicle seizure paperwork.

Believing his father was only hours from death, he offered the police officers his car keys several times so he could leave, but they were refused.

While all this was happening on a Wednesday morning in September 2014, a heavy collision occurred just opposite the protagonists – involving three cars and a truck – on the northbound carriageway .

Because of its severity the officers were also required to take charge of that scene until another police crew arrived.

After being released, Walker returned to the hospital. His father was unable to communicate.  He died two days later.

The “hooning” charges were dismissed in the Magistrates Court.

In March 2018, he filed proceedings in the District Court against the State of Queensland seeking damages for malicious prosecution and wrongful imprisonment.

Those claims were rejected by a jury in August 2019.

Appealing the dismissal of the wrongful imprisonment claim, he contended the trial judge had failed to direct the jury that the officers had only been entitled to detain him “for the time reasonably necessary for the purpose of impounding the vehicle”.

The appeal judges agreed that his detention while they completed the paperwork for the seizure was not justified by the relevant provisions of the Police Powers and Responsibilities Act.

“Every unauthorised detention by one person of another person is a trespass and constitutes the tort of wrongful imprisonment,” observed Justice Walter Sofronoff.

Noting that the power to impound the vehicle and to require the driver to remain at the scene were serious interferences with personal freedoms, the appeal judges ruled such powers could only be exercised for the specific purpose to impound a vehicle and nothing else.

They concluded Walker had been wrongfully detained on the roadside from 10:20 am until 11:20 am and remitted the matter back to the District Court for assessment of damages.

When the matter came before Judge Michael Byrne, he noted the police officers mistakenly believed they had no discretion as to whether or not they should impound a vehicle unless there were “exceptional circumstances”.

“Both believed that they had done nothing wrong by acting as they had been trained, a variation on the so-called Nuremberg defence,” he observed.

His Honour accepted Walker had suffered hurt , distress and embarrassment while detained on the roadside in full view of passing motorists.

He agreed he was entitled to aggravated damages due to the officers’ failure to inform him – after their check call to the hospital – that his father’s death was not imminent, their failure to apologise, their insistence on him having committed an offence of which he had already been acquitted and their teasing of Walker that his actions had indirectly caused the later accident.

“Each of those types of conduct was, in my view, improper and unjustifiable, both singularly and in combination, and goes beyond the bounds of ordinary human fallibility”.

Although the period of wrongful imprisonment was relatively short, “it was a period of time which was particularly precious to the plaintiff and a period of time during which he was susceptible to experiencing considerable distress and upset,” Judge Byrne ruled.

Walker’s damages ask was $120,000 including $50,000 for exemplary damages and $40,000 for aggravated damages.

Having found substantially in Walker’s favour on all the factual and legal points, the court’s award was a mere $30,000 which was said to be inclusive of aggravated damages.

Walker v State of Queensland [2022] QDC 168 Byrne QC DCJ, 5 August 2022

Categories: psychological injury

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