I (successfully?) challenged an illegal COVID ticket and why that shows that all fines should be cancelled
About a year ago, I received an illegal COVID fine for sitting by myself in Redfern Park. I challenged it in court and prevailed. That experience, however, made it clear to me just how grossly imbalanced the system is. I had every resource one could ask for - legal training, advice, time, money - but the experience was still intimidating, dangerous, and opaque.
Here’s how it happened.
The background
On August 19th 2021, I was sitting by myself in Redfern Park (less than a kilometer from home). It was a sunny day and I was trying to get the most of my recreation time. I was preparing to teach in the coming days (criminal evidence, ironically) and so I had a book and my laptop out.
I was lost in thought and didn’t realise that the park was quickly clearing out. I looked up and two police officers were hovering above me. They said I had to leave.
I asked why and they said it was because I wasn’t exercising. Even though I had a pretty good idea of what the law was, I (embarrassingly) believed them - the law must have changed (it hadn’t - solo outdoor recreating was legal at the time). I told them that I was just finishing and would start exercising soon. I also said, why don’t I just exercise while reading, which I acknowledge was somewhat cheeky. I note here that areas like Bondi Beach were not being policed this way, with several news stories about people out by themselves in the sun.
Anyhow, they moved almost immediately to ask me for my ID. I didn’t think there was grounds for asking me for that unless they didn’t believe that I lived close by. So, I asked them simply why they wanted my ID. They wouldn’t give me a reason and kept demanding my ID. Eventually, the officer in charge (O’Brien) told me I was under arrest and to stand up and turn around. I complied and he pulled my University of Sydney staff ID out of my pocket. He asked me what I was a doctor of. I said, “sort of law” (I said sort of because I don’t have a PhD in law, but rather psychology as applied to law and a JD). Almost immediately, he said, okay you are getting a fine. I had to think it might have had something to do with my colleague being assaulted by the police a few months earlier.
I looked over at the other officer and asked if he was okay with this. He said yes.
They gave me the fine and then waited for me to leave. I asked whether I could stay and exercise now and they said no (I still don’t understand their reasoning there). They watched me until I left.
Challenging the ticket
When I received the ticket in the mail, I used the NSW Revenue portal to challenge it, saying I did not think what I was doing was illegal. I thought that would be the end of it because the fine was clearly mistaken. Here’s part of the response I received:
The reasonable excuses set out in this Part are reasonable excuses for an area of concern. A person may leave the persons place of residence to obtain goods or services if the goods or services. A person may leave the persons place of residence to do the following no further than 5 kilometres from the place of residence undertake exercise.
The officer had requested your ID on 3 occasions, which you had refused, with you stating you had been doing push up [sic] in-between reading pages from your laptop. The officer has stated you have failed to comply with the current Health orders by not staying at home, and leaving your residence with no reasonable excuse.
This is patently inconsistent with the public health order in force that I linked earlier, which made it a reasonable excuse when:
5 Undertaking exercise or outdoor recreation if—
(a) the exercise or recreation is undertaken at a place—
(i) within the local government area in which the person resides or the person’s temporary accommodation is located, or
(ii) no further than 5 kilometres from the person’s place of residence or temporary accommodation…
It doesn’t take any background in statutory interpretation to see that the addition of “or outdoor recreation” does no work in this provision if it doesn’t mean something other than exercise (and NSW Health would later make this explicit).
So, I notified the state that I would challenge the fine in court. Afterwards, I spoke to a colleague and an excellent representative from Redfern Legal Centre. Both informed me that my stubbornness was perilous because I risked having a criminal record. They also helped prepare me for court, telling me that I should ask for the police’s body worn camera footage and for the specifics of the offence. As it was, the court notice simply referred to sections 7-10 of the public health order without saying which I allegedly breached. This vagueness is what the Redfern Legal Centre is attempting to challenge, however the state seems to not want such a precedent.
On the day of court (November 29, 2021), I turned up to the extremely crowded courthouse. Many people were unmasked and it was clear this was much more dangerous than sitting in the park. After about an hour, I was called into the courtroom and pled not guilty. I told the registrar I wanted the footage and the particulars, and she ordered a new appearance about two months later, and said I would be served those things before then (I wasn’t).
Cut to two months later. I still hadn’t heard a peep from the police or prosecutor’s office, and my next appearance was only a few days away. So, I called the court to see if they had received anything. They hadn’t. Then, I called the phone number on the court order for Revenue NSW. They told me to call the police. So, I called the general police line. After bouncing me around for a while, they eventually connected me with the police station where the officer who issued the ticket worked. And, they eventually connected me to him.
I explained what happened to the police officer and he said “Mate, I gave out a lot of tickets then”. I told him I could email him the public health order that was in effect and he could compare it to the ticket. To my surprise, he agreed. About an hour later he replied to say that he would recommend the ticket be withdrawn. What a twist: the most unreasonable person in the story had become the most reasonable.
At my appearance a few days later (again, in a crowded courthouse with many unmasked people), the prosecutor withdrew the ticket.
What does this all mean?
I can’t imagine how anyone without assistance is meant to find justice in this situation. And, I think there are thousands of people who either paid an illegal ticket or have an illegal ticket still hanging over their head.
I have a pretty good understanding of criminal law and procedure, but I was intimidated by these police officers. They were aggressive and rude. But, they had an air of authority and in the moment I believed they were probably right. I mean, this was their main job that day - how could they misunderstand the law so fundamentally? I’d like to think I’d stand up for myself more next time.
The process to challenge the ticket was also incredibly difficult to navigate. No part of the documentation I received explained what part of the order I breached or provided any specifics. And I still don’t understand how whoever did that second review got it so wrong. It seems likely at least that they are under orders to find any way they can to reject these applications.
Then there’s the courthouse itself. It’s a dangerous place to be during a pandemic. And, they make everyone who is self-repped go after those with lawyers, so people without means are, on average, going to be there longer.
What’s the fairest way forward?
Clearly, the current system for challenging COVID fines is shockingly imbalanced against accused people without means (as it is in every area of criminal law). The state seems to be withdrawing these fines only when you actually take them to court and demonstrate that you have the means to defend yourself.
My experience suggests there are almost surely many people who had either paid these illegal fines or have them outstanding on top of the many other debts we have accrued the past few years.
The state’s efficiency mechanism, the pre-trial review by Revenue NSW has shown that it fundamentally misunderstands the law, and has done so over and over again. And how much would it cost now to review all the fines issued these past few years?
The fairest and most efficient way forward is to issue a blanket forgiveness on all COVID tickets.