Barker v Commonwealth of Australia [2016] QSC 310

Geoff Barker had approximately 7 standard drinks at the bar before arrival at the airport in Port Moresby to board the Air Niugini flight PX025 to Brisbane in November 2011.

The specialist pipeline welder denied he had 3 more drinks on the flight but accepted he drank a “coffee cup of whiskey and coke” poured for him by his travelling companion from a duty-free bottle purchased at the airport. According to witnesses, on arrival at Brisbane shortly before 5 pm, his speech was slurred, “his face was red, his eyes were bloodshot and watery and he appeared unsteady”.

As passengers deplaned via stairs to the tarmac, ground staff intercepted him to ask that he and his companion wait while they spoke to the crew concerning his on board conduct. Two Border Force officers arrived to be followed by three Australian Federal Police about 10 minutes later. Parker was required to stay put while one of the officers boarded the aircraft to interview crew.

On his return, Barker, who had a negative reaction to the AFP representatives’ arrival, unleashed a torrent of abuse and threats resulting in a decision that he be arrested.

The arrest, was effected by Sgt Gary Turnbull taking hold of his right arm and officer Chris Denyer the left, forcing him to the ground before cuffing his wrists behind his back. In the course of that manoeuvre, Barker’s left leg and ankle were injured to an extent that necessitated police driving him to the Royal Brisbane Hospital for treatment.

Barker did not challenge the officers’ entitlement to make an arrest but alleged his detention at the foot of the stairs leading from the tarmac to the terminal prior to that time was unlawful and that the force used during the takedown manoeuvre was so unreasonable it constituted an assault.

The recovery from his broken leg and 2 surgeries to his ankle to repair a displaced ligament required extensive rehabilitation and resulted, he claimed, in a serious impact on its capacity to carry on his business.

The lawsuit was defended by the Commonwealth of Australia as the party responsible for the conduct of Border Force and AFP personnel.

When the matter came before Brisbane’s Supreme Court 5 years later, Turnbull and Denyer testified that Parker “immediately resisted” by “wildly trying to escape their grip”. Barker’s account was that there was no resistance only that he arched his back as his approached the bitumen, to unsuccessfully avoid the head strike that left him groggy afterwards from the impact.

Unfortunately for Barker, treatment records from his numerous medical consultations over the next few weeks referred to him having no memory of events from top of descent as the aircraft began its arrival into Brisbane.

Although Justice David Jackson thought Sgt Turnbull’s evidence “was disconcertingly given in long rehearsed answers” but as it did not contradict that of other defence witnesses the inevitable unreliability of his recollection meant that Turnbull’s account was preferred over that of the passenger.

Taken with the weight of evidence from all other witnesses at the time of and shortly before the arrest, the court was compelled to a conclusion that the takedown was reasonable and did not involve excessive force. Thus no assault had occurred.

While the period of detention prior to the arrest was capable of being an “unlawful imprisonment” entitling Barker to compensation, “all the witnesses apart from the plaintiff swore that upon being requested to remain on the tarmac, the plaintiff did so voluntarily”. In the absence of any contention that Barker insisted on being able to leave after being “told to remain on the tarmac and to sit down”, Justice Jackson concluded “there is no serious case of false imprisonment in these facts”.

Interestingly, Barker’s arrest was for “disorderly conduct” rather than failing to observe a direction of the crew while on board the flight.

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