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[2026] NSWDC 58
General information, not legal advice.
District Court of NSW
2026-03-27
Waugh SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Alidi v State of New South Wales [2026] NSWDC 58
Hearing dates: 2 June 2025 – 5 June 2025
Date of orders: 27 March 2026
Decision date: 27 March 2026
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision: For both cases:
1. Judgment for the defendant.
2. Make no order as to costs, with the intention that each party bear their own costs of the proceedings.
Catchwords: TORTS – Battery – False imprisonment – Alleged unlawful search – Consent to search under s. 34A Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) – Consent to search under the common law – Power to search under s. 23(1) and s. 21 LEPRA
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 23, 29, 34A,
Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Collins v Wilcock [1984] 1 WLR 1172 Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 Croucher v Cachia [2016] NSWCA 132, (2016) 95 NSWLR 117 Fuller v State of New South Wales [2025] NSWDC 350 Gorman v McKnight [2020] NSWCA 20 McHale v Watson (1964) 111 CLR 384 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 State of New South Wales v Exton [2017] NSWCA 294 State of New South Wales v Le [2017] NSWCA 290 R v Lavery (1978) 19 SASR 515 Ruddock v Taylor (2005) 222 CLR 612 Williams v Milotin in (1957) 97 CLR 465 White v Johnston [2015] NSWCA 18
Texts Cited: D Rolph, JNE Varuhas, P Crossley and M Douglas, Balkin & Davis Law of Torts (6th ed, 2021, LexisNexis Australia)
Sappideen, Vines and others, Fleming’s The Law of Torts (11th ed., 2024, Thomson Reuters)
Category: Principal judgment
Parties: Plaintiff: Tshepo Alidi
Defendant: State of New South Wales
Representation: Counsel:
Mr A. Canceri (Plaintiff)
Mr T. Smartt (Defendant)
Solicitors:
Aussie Lawyers (Plaintiff)
McCabes (Defendant)
File Number(s): 2024/136623 & 2024/164941
Publication restriction: Nil
Mr Alidi (the plaintiff) has brought two separate cases in which he claims damages from the State of New South Wales (the defendant) arising out of two separate interactions he had with NSW Police officers in May 2023, the first on 25 May and the second 6 days later on 31 May.
The two cases were heard together, with the evidence in the one case being evidence in the other.
Liability and quantum were in issue in both cases.
The first interaction took place on Thursday 25 May 2023 at about 7:30 PM when Mr Alidi was approached by Constable Kumar and Constable King whilst he was sitting on a public bench outside the Randwick City Library at Maroubra. Part of this interaction was captured on the body worn video camera of Constable Kumar. If there was body worn video footage from the camera of Constable King (and there is in fact some doubt that there was), it was not available to the court. During the interaction, Constable Kumar conducted a pat down search of Mr Alidi. He did not find any prohibited items or substances. Constable Kumar then gave Mr Alidi a “move on” direction which he complied with.
Mr Alidi claims damages for battery and for false imprisonment in regard to the pat down search conducted by Constable Kumar on this occasion. Mr Alidi no longer presses his pleaded claim for assault or for aggravated damages.
The defendant asserts that it has a complete defence to Mr Alidi’s claim:
Either because:
(a) Mr Alidi consented to the pat down search in fact, (b) OR Mr Alidi has a legal onus to prove lack of consent which he did not discharge - this is said to raise a legal issue about where the onus of proof of consent lies;
(a) because Constable Kumar suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control (s.23(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), “LEPRA”); (b) or because Constable Kumar suspected on reasonable grounds that Mr Alidi had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug (s.21(1)(d)) of LEPRA).
The second interaction took place on Wednesday 31 May 2023 at about 10:13 AM when Mr Alidi was approached by (the same) Constable King and Constable Dover whilst he was walking along Anzac Parade at Maroubra near the intersection with Moverly Road. Most of the interaction was captured on the body worn video cameras of both Constable King and Constable Dover. During the interaction, Constable King conducted a pat down search of Mr Alidi. He did not find any prohibited items or substances.
Mr Alidi claims damages for battery and for false imprisonment in regard to the pat down search conducted by Constable King on this occasion. Mr Alidi no longer presses his pleaded claim for assault or aggravated damages.
The defendant asserts that it has a complete defence to Mr Alidi’s claim either because Mr Alidi consented to the pat down search, or alternatively Constable King was authorised to conduct the pat down search because Constable King suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control (s.23(1) of LEPRA).
As I have mentioned, Mr Alidi did not give evidence at the hearing, although he was present in court and Senior Constable King gave oral evidence and was cross-examined. Constable Dover did not give evidence at the hearing.
I will address the issues raised by the parties concerning liability for each interaction and then the question of damages. Before doing that, however, it is necessary to understand the legal context.
The form of trespass to the person known as battery is constituted by any direct physical contact with the person of another. The gist of the action is the interference with the plaintiff’s right to corporeal integrity, that is a ‘violation of the protection which the law throws round the person’. This is reflected in the proposition that ‘battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity’. The suffering of harm or special damage is not a necessary component of the action. The analytical starting point in any battery claim is ‘[t]he fundamental principle, long established, that every person’s body is inviolate … the effect of this principle is that everybody is protected not only against physical injury but against any form of physical molestation’. Thus, any touching of another person, however slight, may amount to a battery. In turn the breath of this ‘principle reflects the fundamental nature of the interest so protected’. Such is the importance placed on the fundamental interest in physical integrity that even the ‘most trifling and transient physical assault’ may give an action ‘sounding in damages (and if appropriate aggravated or exemplary damages)’.
“Liability for assault or battery shall not be imposed if acts complained of were committed with the consent of the plaintiff. … But the question remains whether it is for the plaintiff to prove absence of consent or whether the onus is on the defendant to prove consent to the alleged trespass.”.
This is the very question of onus raised by the defendant in these proceedings. The defendant submits that it is an element of the tort of battery that a plaintiff must prove an “absence of consent”. This is said to be for the reasons given by Leeming JA in White v Johnston [2015] NSWCA 18 at [94] – [130]. The plaintiff submits that consent provides a defence, and as such must be proved by the defendant. The plaintiff relies upon the judgment of McHugh J in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 310-311.
The controversy was acknowledged and the competing authorities listed by Bell P, as the Chief Justice then was, in Gorman v McKnight [2020] NSWCA 20 at [73]. The competing views and cases are discussed fully in Balkin & Davis Law of Torts at paragraph 3.6 p.63-65. The learned authors said, writing in 2021, that the matter remains to be resolved definitively. That appears still to be the case. They argue that the weight of authority supports the view expressed by McHugh J in Marion’s Case that consent is a defence that the defendant must establish.
The legal principles concerning false imprisonment are discussed in Balkin & Davis Law of Torts in Chapter 3 at pages 88 – 106. For present purposes I draw out the following statements of principle. False imprisonment may be defined as a direct act of the defendant which confines the plaintiff within an area delimited by the defendant (3.28). The principal function of the tort is to provide a remedy for injury to liberty and damages are awarded to vindicate personal liberty, rather than as compensation for loss per se (3.28). It is actionable without proof of special damage (3.28). The structure of the tort is straightforward and mirrors that of battery: the plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case (3.30). The plaintiff carries the burden of establishing no more than imprisonment (3.30). If the plaintiff shows that the defendant, by a direct act, caused him or her to be imprisoned, the onus shifts to the defendant to negative the case for liability (3.30). The rule is that the imprisonment must amount to a total restraint of the liberty of the person, for however short a time, and not merely be a partial obstruction of the person’s will, whatever inconvenience it may cause. This is a question of fact (3.31). The precise place of imprisonment is not important to the question of whether there is an imprisonment. It can happen in a public street (3.32). The barriers need not be physical; a restraint effected by an assertion of authority is enough, although in such cases the plaintiff must feel under an obligation to submit to the instructions or dictates of the defendant (3.34). If, on the facts, the person went along with an officer voluntarily then there is no false imprisonment (3.34).
One of the cases cited in support of the proposition stated in the last sentence is State of New South Wales v Le [2017] NSWCA 290 at [5]. Both parties referred to that case in their submissions before me.
In State of New South Wales v Le, Mr Le was stopped by transport police at Liverpool railway station and asked to produce his Opal card. The card bore the endorsement “senior/pensioner” and Mr Le was asked to produce his pensioner or student concession card. He produced a pensioner concession card. He was then asked for photo identification, such as a driver’s licence. He did not supply any form of photo identification, but gave his date of birth when asked. There was a brief interlude while the officer checked his details over the radio. Mr Le was then told he was free to go. Four months later he commenced proceedings in the District Court claiming damages for assault and false imprisonment. The primary judge dismissed the claim for damages based on assault but gave judgment for the plaintiff for $3,201 as damages for false imprisonment. The Court of Appeal (Basten, Leeming and Payne JJA giving joint reasons) allowed the appeal and set aside the judgment. The Court of Appeal found that it was not until Mr Le was told “you’re not leaving” within a matter of seconds before being told that he was free to go that “it is reasonable to infer that he was then being non-consensually detained” (at [9]). From that point, the exercise of power to detain Mr Le “required justification” (at [9]). Their Honours determined that the transport police had an implied power to detain in the circumstances pursuant to the then Passenger Transport Regulation 2007 (NSW) (at [19]).
In that context, the Court said at [3]-[7]:
… What was involved in this case was a brief interruption of the respondent’s intended progress which might be described as a temporary detention. Detention is a concept with a range of meanings, but can be used in a sense distinct from arrest, which in turn is distinct from imprisonment and holding in custody. Detention, in that limited sense, involves a temporary deprivation of liberty.
Use of appropriate language is important to the proper application of legal principle. To characterise a particular course of conduct as involving some form of imprisonment tends to focus attention on the justification for the conduct, whereas the first question in this case is to identify the nature of the alleged detention.
A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock [1984] 1 WLR 1172 at 1180 (Robert Goff LJ and Mann J):
“Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful.”
There are two aspects of this passage which require clarification. First, read in context, it is clear that the characterisation of the conduct in the final sentence as “unlawful” means it was conduct requiring justification. Secondly, there may be no clear dividing line between the effect of the officer’s uniform on the one hand, and an implicit threat to use force in the event of non-compliance, on the other.
This latter point is often an important issue in particular circumstances. The test, however, is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer. The subjective state of mind of the complainant will not be determinative. In the present case, which involved a face-to-face confrontation in a public place, it is not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his or her liberty, as occurred in Meering v Grahame-White Aviation Co Ltd.
In State of New South Wales v Exton [2017] NSWCA 294 Basten JA (Meagher and Leeming JJA agreeing) at [42] cited the same passage from Collins v Wilcock [1984] 1 WLR 1172 at 1180 for the following observation: “Where there is no physical act of apprehension, but the person merely accompanies the officer, there may be an issue as to whether the conduct of the person involved a voluntary or consensual acceptance of a request, as opposed to submission to the authority of the arresting officer.”.
Basten JA also, at [44], set out the following statement of principle from the judgment of King J in R v Lavery (1978) 19 SASR 515 at 516 which his Honour said had been relied upon in subsequent cases as authoritative and had been adopted by courts of criminal appeal:
“A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily.”
In the present case, the defendant also submitted that as a matter of law Mr Alidi must prove not only “imprisonment”, but also “that the relevant officer caused him to be imprisoned with the intention to cause an imprisonment” (written submissions paragraph 7) and that on the facts Mr Alidi had failed to prove an intention to imprison on the part of the relevant officers (written submissions paragraphs 9).
The defendant cited 2 cases in support of the proposition that Mr Alidi had to prove an intention to cause imprisonment: Ruddock v Taylor (2005) 222 CLR 612 at [141] (Kirby JJ), and Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 at 743 (Clarke JA; Priestley JA agreeing).
In Ruddock, Kirby J said at [141] “…a plaintiff must prove that the defendant was a direct cause of the injury (154), as well as prove the existence of the requisite intent (155)”. In the footnote at 155, his Honour said “The requisite intent is an intention to cause the imprisonment: Williams v Milotin in (1957) 97 CLR 465 at 474; McHale v Watson (1964) 111 CLR 384 at 388”.
In Cowell, Clarke JA said at 743 “In the context of a trespass by way of false imprisonment it is the intention to detain which is important. If one couples that with the unlawfulness of the detention the tort is complete. There is no call to consider negligence. It is irrelevant. Similarly the lack of awareness that the detention is unlawful is irrelevant.”.
Sappideen, Vines and others, Fleming’s The Law of Torts (11th ed., 2024, Thomson Reuters) says about intention: “False imprisonment, a trespass, does not lie unless the defendant directly and intentionally caused a plaintiff’s bodily restraint. … It does not require the defendant intend to restrain the plaintiff unlawfully. If legal authority turns out to be lacking, it is irrelevant that the defendant did not know, or could not know, that it was lacking …” (p.43, the body of the text read with footnote 151).
In the present case, in respect of both interactions, the relevant act that Mr Alidi asserts resulted in his imprisonment or detention was the conducting of the pat down search. There is no doubt that in each instance Constable Kumar and Constable King intended to undertake the pat down searches which they in fact carried out. In my view that is sufficient to establish the requisite intent.
21 Power to search persons and seize and detain things without warrant
(cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37)
(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists—
…
(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
23 Power to search persons for dangerous implements without warrant in public places and schools
(1) A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person’s possession or under the person’s control.
I addressed the legal principles applicable to s.21(1)(d) of LEPRA in Fuller v State of New South Wales [2025] NSWDC 350 at [8]-[22].
In my view, the same broad principles apply to the operation of both s.23(1) and s.21(1)(d) of LEPRA.
As I mentioned at the outset, Mr Alidi claims damages for battery and for false imprisonment in regard to both pat down searches, one conducted by Constable Kumar on 25 May 2023 and one conducted by Constable King on 31 May 2023.
In both cases the plaintiff pleaded, and confirmed in closing submissions, that the alleged battery occurred by reason of the pat down search.
In both cases the plaintiff pleaded the relevant “imprisonment” as beginning from the time he was first approached by the police officers and lasting until he was allowed to leave. However as the hearing progressed and by the time of closing submissions, the plaintiff put each case on the basis that the imprisonment commenced at the time the pat down search commenced (T135-136; T102).
It follows that the relevant acts alleged to constitute both battery and false imprisonment were the conducting or carrying out of the pat down searches in each case.
In light of the above, the following questions arise for determination concerning the first interaction on 25 May 2023:
Did Mr Alidi consent to the pat down search?
Did Constable Kumar have a suspicion immediately before undertaking the search that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
If he did have that suspicion, on what grounds did Const Kumar hold the suspicion that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
Were those grounds “reasonable grounds” for holding the suspicion that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
Did Constable Kumar have a suspicion immediately before undertaking the search that Mr Alidi had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug?
If he did have that suspicion, on what grounds did Constable Kumar hold the suspicion that Mr Alidi had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug?
Were those grounds “reasonable grounds” for holding the suspicion that Mr Alidi had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug?
The following questions arise concerning the second interaction on 31 May 2023:
Did Mr Alidi consent to the pat down search?
Did Constable King have a suspicion immediately before undertaking the search that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
If he did have that suspicion, on what grounds did Constable King hold the suspicion that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
Were those grounds “reasonable grounds” for holding the suspicion that Mr Alidi had a dangerous implement unlawfully in his possession or under his control?
I will address each of those questions in turn.
It is admitted on the pleadings that on 25 May 2023 at approximately 7:30 PM Mr Alidi was sitting on a public bench located outside Randwick City Library in Maroubra when he was recognised and approached by Constable Kumar and Constable King. The officers did a bail compliance check on Mr Alidi and did not find that he was in breach of his bail conditions. Following a short conversation with Mr Alidi they conducted a pat down search. The search did not result in any prohibited items or substances being located by the police officers. The police officers proceeded to issue Mr Alidi with a move on direction and he left the location.
The body worn video footage of Constable Kumar shows that he conducted the pat down search. The video starts at 19:33:46 without sound. The sound starts at 19:34:41 with 2 beeps. The video ends at 19:37:07.
It was a Thursday evening. The video shows that it was already dark.
When the video starts Constable Kumar can be seen holding up his MobiPol device and the screen is lit up. I therefore infer that he was using it. A MobiPol device is about the size of a large mobile phone. Mr Alidi is sitting on the bench. He appears to be listening and then talking and gestures with his right arm.
After a short period of time it becomes clear that the person Mr Alidi was talking to was Constable King as he comes into picture. Both Constable Kumar and Constable King are standing. There is a large black bag on the bench next to Mr Alidi together with some other items. Mr Alidi has a disposable coffee cup in his left hand, which he puts down on the bench at about 19:34:03.
At about 19:34:03 one can see part of the screen on the MobiPol device showing a picture of a person on a black background. It is not possible to identify the person as Mr Alidi from the video. However the screen shown in the video looks similar to the screenshot shown in Exhibit 1. Constable Kumar said in cross-examination that it looked like it.
At about 19:34:09 one can see Constable King take a latex glove out of his pocket.
At about 19:34:11 one can see that the screen of Constable Kumar’s MobiPol device goes dark. I infer that he stopped using it about then.
At about 19:34:15 one can see Constable King putting on latex gloves.
At about 19:34:22 one can see Constable Kumar preparing, or just starting the process of, putting on latex gloves.
At about 19:34:24 one can see both Constable King and Constable Kumar putting on latex gloves. Mr Alidi is watching on, with his hands over on his knees or close to them.
At about this time one can see Constable King speaking and Mr Alidi looking in his direction. Mr Alidi looks quite serious and is not smiling.
At about 19:34:32 Mr Alidi appears to pat the pockets of his pants and shake his head from side to side.
At about 19:34:39 both Constable King and Constable Kumar appear to be talking to Mr Alidi and motioning with their hands. Constable King appears to be pointing towards Mr Alidi’s large black bag on the bench next to him. Constable Kumar appears to be pointing towards either Mr Alidi himself or the bag.
At about 19:34:41 the sound starts with 2 beeps. From here, as well as the video, the court has the benefit of the transcript of the audio prepared by the parties (Exhibit 3).
Constable King: There’s nothing sharp in the bag?
Mr Alidi: Nothing. I have a boomerang. (Mr Alidi is in full view in the video when he says this. He looks serious. His voice sounds sombre.)
Constable King: I can see the boomerang.
Mr Alidi: It’s got a sharp edge. (Mr Alidi is in full view in the video when he says this. He looks serious. His voice sounds sombre.)
Constable King: But you’ve got no knife in there?
Mr Alidi: No knife, no. (As Mr Alidi says this he shakes his head. He looks serious. His voice sounds sombre.) (I note that Exhibit 3 records that Mr Alidi said “No knife, sir”. I believe the video records him as saying “No knife, no”.)
Constable King: “Okay. No dramas. I’ll have a look through the bag. Just stand up for me and put your hands onto that column.” (The video shows that Mr Alidi stands up immediately, raises his hands above his head and places them on the column Constable King and Constable Kumar had pointed to.)
Constable Kumar: “Stand here … Just to let you know, mate, my body worn camera is recording all your actions and our conversations, okay? Okay. Can you take off your … First, this jacket, please.” (I note that Exhibit 3 records that Constable Kumar says “Just come here, mate”. I believe the video records him as saying “Stand here” and then something indecipherable.)
Mr Alidi: “First jacket?”
Constable Kumar: “The jacket.”
Constable Kumar: “Yeah, just the jacket. Just take it off, please.”
(The video shows that Mr Alidi immediately begins to take off his jacket – which is more in the nature of an overcoat rather than a jacket - and Constable Kumar helped him. Whilst he is doing that Mr Alidi continues to face forward towards the column, turns to his right to answer Constable King’s questions and then turns back to the column, facing the column and putting his hands on the column above his head. He remains in that position whilst Constable Kumar stands behind him a short distance away conducting a search of the coat.)
Constable King: “What’s this here, Tshepo? Is that a flag? Oh your [inaudible]"
Mr Alidi: "Instead of … I use this to carry my bag and also walk me when my knees are –"
Constable King: “Yeah, yeah, I get it. Oh, my God. Your cans going everywhere.”
Mr Alidi: “No worries. No worries.”
Constable King: “Are you all right to pick them up?”
Mr Alidi: “No worries. No worries. Just do your job.”
Constable King: “You got a lot of cans see it, mate.”
Mr Alidi: “Yeah. Two a day will keep me going. Just, um, buying in bulk.”
Constable King: “Your bag’s all good. I’m just going to leave it here on the ground for you, all right, mate?”
Mr Alidi: “Yes sir.”
Constable Kumar: “What’s this one?”
Mr Alidi: “That is … under the skirt, these are pockets. You can pull the skirt off.”
Constable Kumar: “We can just lift it up?”
Mr Alidi: “Yes sir.”
Constable King: “I thought you said you had nothing in your pockets mate?”
Mr Alidi: “They’re keys.”
Constable King: “That’s still something.”
Mr Alidi: “There are a lot of keys, house keys.”
Constable Kumar: “What do you do with so many cards on you?”
Mr Alidi: “I beg your pardon.”
Constable King: “No, it’s all good. Just check here. There’s nothing in another pocket?”
Constable Kumar: “Just keys and keys.”
Constable King: “It’s all good.”
Constable King: “All good, Tshepo. I’m satisfied you don’t have a knife on you. All right, mate?”
Mr Alidi: “No worries. No worries.”
Constable King: “You can turn around now. I’ll just have a quick look through your bail conditions.”
The video shows that Mr Alidi put his hands on the column at about 19:34:55, and apart from a short time during which he took his hands down and removed his coat upon being told to do so by Constable Kumar, Mr Alidi stood facing the column with his hands above his head on the column until Constable King said to him “You can turn around now.” at about 19:37:05. The transcript (Exhibit 3) mistakenly records (and this is the last line of the transcript) that Constable King said “You can turn around here.”. I believe the video records Constable King as saying “You can turn around now.”. The video shows that at this point Mr Alidi took his hands down and turned away from the column in the direction of Constable King who also said “I’ll just have a quick look through your bail conditions”.
As I have mentioned, Mr Alidi do not give oral evidence.
In his oral evidence in chief:
Constable Kumar said that he remembered that he had a conversation with Mr Alidi before he searched him. When asked “what can you remember about the conversation?”, Constable Kumar said: ‘So it's, it's a usual habit of police officers to introduce themselves, so I spoke to him and introduced myself by way of name, rank and place of duty and, like, general greetings, "How're you doing?"’. Constable Kumar did not give any further detail of what he said to Mr Alidi.
Constable Kumar did not say that he asked Mr Alidi to consent to being searched.
In cross-examination:
Constable Kumar agreed that when he was putting on his latex gloves he was getting ready to perform a search of the plaintiff and by then he had well and truly anticipated exercising a police power. He agreed that by the stage of putting on his gloves he definitely had in his contemplation exercising the power to search Mr Alidi.
When asked if he was saying anything before the audio recording button had been pressed, Constable Kumar said “I just introduced myself to Mr Alidi, and after that I let Constable King have the conversation with him.”. Constable Kumar said he was just listening to the conversation.
Constable Kumar gave the following evidence (T 58 – 59:)
Q. You, prior to searching the plaintiff on 25 May 2023, did not seek his consent to being searched, did you?
A. I don't recollect the exact conversation that we had, but I think Mr Alidi was pretty compliant with all the conversation that we were having at the time.
Q. You were aware as at 25 May 2023 that you could ask for a person's consent. Would you agree with that?
A. Yes.
Q. There's a provision in LEPRA that mentions that, s 34A. Would you agree?
A. Yes.
Q. You would also agree that, if you were asking for consent, and it was given, that is something which would be recorded in your COPS event report. Correct?
A. I don't know.
Q. It's something that should have been recorded. Would you agree with that?
A. In general we usually write out the reasons and the suspicion, I think which was put down in the narrative.
Q. Then in the narrative, if you had sought consent and it was given, you would put in the narrative that fact, wouldn't you?
A. Maybe.
Q. I suggest to you that, if consent had been given, it would be important to put that down in the narrative. Would you agree?
A. Maybe.
Q. You hadn't put in the COPS event report for this particular occasion anything about consent being sought by the plaintiff. Would you agree?
A. In the narrative, no.
Q. If consent was sought from a person, that would be a very important matter to record by way of body-worn camera. Would you agree with that?
A. Yes.
Q. That wasn't done on this occasion, was it?
A. Not on my camera, no.
Q. You're saying that it's possible that it was recorded by Constable King's camera. Is that correct?
A. Yes.
Constable Kumar prepared a COPS event record of his interaction with Mr Alidi on 25 May 2023. The record was in evidence (exhibit E). It shows that it was created by Constable Kumar early the following morning, at 1:31 AM on 26 May 2023. It recorded that Mr Alidi had been searched with nothing found and that the “primary reason” for the search was “KNIFE/WEAPON USED/INTENDED TO BE USED” it stated under the words “DEFENDANT ATTITUDE WHILST COOPERATING WITHN POLICE”, “COOPERATIVE and SUPPORTIVE”. Against the words “Incident Type” is recorded “ACTUAL POWERS – PERSON SEARCH”. Nowhere in the COPS event record was it recorded or suggested that Mr Alidi had consented to the search.
In his oral evidence in chief, Constable King said that on 25 May 2023 when he and Constable Kumar saw Mr Alidi “…we went out and just had a chat with him”. Constable King was then asked if he remembered anything about that chat and said “No, nothing specific exactly, but would've just been a general chat to start with. I would've recognised him straightaway, if I didn't from the car, and just asked him what he was up to.”
In cross-examination, Constable King agreed that on 25 May 2023 he approached Mr Alidi and started speaking with him. Cross-examining counsel did not ask Constable King what he said to Mr Alidi or what Mr Alidi said to him.
In cross-examination, Constable King agreed that he searched Mr Alidi’s personal belongings and that before putting on his latex gloves he was anticipating exercising his power to search Mr Alidi. Constable King agreed that this would have been the occasion for him to activate his body-worn camera. He agreed that had it been activated he would have downloaded the footage when he got back to the station.
Constable King did not give evidence that either he or Constable Kumar asked Mr Alidi to consent to his person and property being searched.
Counsel for Mr Alidi submitted that consent was not proven by the defendant in circumstances where neither Constable sought consent from the plaintiff before carrying out the search, in breach of s 34A(1) of LEPRA. It provides that: “A police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.”.
Counsel submitted that putting aside s 34A(1), the evidence does not permit a finding that the plaintiff consented to the search for the following reasons: first, the plaintiff was not given a choice as to whether he was searched or not. For example, neither officer said to him “Do you consent to being searched?” Secondly, what was said by Constable King was in the nature of a command: “Just stand up for me and put your hands onto that.” The plaintiff got up and put his hands on the column, complying with the command of Constable King. Thirdly, there is an imbalance of power between two uniformed police officers and the plaintiff. This is a matter which informs the issue of consent.
Counsel submitted that in summary, the words used by the officers, especially when coupled with their office, amounted to a direction or command. This is not the case of a police officer asking a person very nicely whether they would permit a search to be carried out.
Counsel for the defendant submitted that Mr Alidi’s allegation of non-compliance with s.34A of LEPRA “invalidating otherwise valid consent” should be rejected because it had not been pleaded.
Counsel submitted that if s.34A applied, s 34A(1) was complied with on 25 May by Officer King saying in a relaxed tone “just stand up for me and put your hands on to that” and/or Officer Kumar saying in a relaxed tone “just come here, mate” (1:03 of the bodyworn).
In any event, counsel submitted that s.34A of LEPRA, which should be read with s.29, created an additional statutory authority for conducting a search, but otherwise did not change the common law.
Counsel submitted that when the body worn video footage commenced (without sound) what was said was “something happy and light because Mr Alidi is laughing and smiling a lot”. I do not accept that the video shows that Mr Alidi is laughing and smiling a lot, and in the absence of evidence from either Constable Kumar, Constable King or Mr Alidi about what was said before the sound recording started, I am not prepared to find that what was said was happy and light.
Counsel submitted that the video shows: (i) Mr Alidi was smiling and laughing with the officers just before the search (see, eg, 0:02, 0:06-0:09); (ii) Mr Alidi says “no worries, no worries” in a relaxed tone when Officer King accidentally knocks his cans onto the ground (1:29); (iii) Mr Alidi volunteers to Officer Kumar that there are pockets under his skirt and told Officer Kumar without being asked that he could “pull the skirt off” (2:22); and (iv) at the end of the search, Officer King says “all right, mate?” and Mr Alidi says “no worries, no worries” (3:09).
Counsel submitted that it was highly relevant on the question of consent that the plaintiff had chosen not to give evidence in the case in circumstances where the plaintiff had an onus and the bodycam video footage did not record the whole interaction. The defendant put its submissions about onus and consent in a number of different ways in opening and closing submissions. I do not propose to attempt to summarise all of the ways the submissions were put. By the end of closing submissions, as I understood it, the defendant’s submission was distilled into the following propositions: (a) the plaintiff had the onus of proving in his claim for damages for battery that the touching took place without his consent; (b) the plaintiff had the onus of proving on his false imprisonment claim that he was detained; and (c) there was no detention if the plaintiff consented to the act said to cause the detention; (d) the plaintiff must therefore disprove consent to the act said to cause the detention, which in this case was the search.
The parties really did not join issue squarely on the significance of s.34A of LEPRA. Although counsel for Mr Alidi submitted that there had been a “breach” of section 34A, which I took to mean a failure to comply with section 34A, he did not contest the proposition that Mr Alidi may have given his consent in accordance with common law principles. Neither side referred to s.34A in their pleadings. The defendant did not plead in its defence that the search had been conducted lawfully under s.34A, and the plaintiff did not plead that the search was not conducted with his consent because Constable Kumar did not comply with s.34A.
In any event, I do not accept the defendant’s submission that s 34A(1) was complied with on 25 May by Officer King saying in a relaxed tone “just stand up for me and put your hands on to that” and/or Officer Kumar saying in a relaxed tone “just come here, mate”.
Sections 34A and 29 are in Division 4 of Part 4 of LEPRA.
Section 34A provides:
(1) A police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.
(2) A police officer must, before carrying out any such consensual search, provide the person with—
(a) evidence that the police officer is a police officer (unless the police officer is in uniform), and
(b) the name of the police officer and his or her place of duty.
(1) This Division applies to any search of a person carried out by a police officer under this Act, except as otherwise provided by this Act or the regulations.
(2) This Division also applies to any search of a person that is carried out by a police officer after obtaining the person’s consent to carry out the search. In that case—
(a) the purpose of the search is the purpose for which the police officer obtained consent to search, and
(b) a general consent to the carrying out of a search is not consent to carry out a strip search unless the person consents to the carrying out of a strip search.
Section 34A of LEPRA was inserted into the Act by Act 31 of 2014. According to the second reading speech for what was then called the Law Enforcement (Powers and Responsibilities) Amendment Bill 2014 in the Legislative Council on 28 May 2014, the relevant Minister said that section 34A “… will provide for consensual searches. Before conducting such a search police will have to ask the person for consent and provide certain information to them. The provision ensures police have explicit power to search a person with the consent provided.”.
Whilst one does not replace the text of the legislation with the text of the second reading speech, in my view s.34A and s.29 require a Police officer to do a little more than directing a person to do something “in a relaxed tone”. The requirement is to seek the person’s consent before carrying out the search, not to tell them to do something, however nicely, or to tell them they are going to do something, however politely, and then wait for the person to object, protest or refuse. As the second reading speech indicated, seeking a person’s consent would ordinarily mean asking them for it. That was not done here.
For those reasons I find that neither Constable Kumar nor Constable King had sought Mr Alidi’s consent within the meaning of s.34A before Constable Kumar conducted the pat down search.
That leads me to a consideration of the common law principles.
The common law principles were discussed and applied in State of New South Wales v Le [2017] NSWCA 290 and State of New South Wales v Exton [2017] NSWCA 294. I referred to those cases earlier – see paragraphs 19 to 23 above.
It is a question of fact whether Mr Alidi consented to the pat down search conducted by Constable Kumar, or whether his cooperation was, as it is put in the cases, voluntary or consensual in all the circumstances.
Those circumstances included that Mr Alidi was sitting on the bench when the 2 police officers approached him in uniform. He remained seated while they stood in front of him. He watched as one of them looked at his MobiPol handheld device. He watched as they stood before him putting on latex gloves. He remained seated until Constable King said to him “Just stand up for me and put your hands onto that column.”. When Constable King said this to him he stood up immediately, raised his hands above his head and put them on the column where both constables had pointed. He was told by Constable Kumar to “Stand here” – i.e. with his hands above his head on the column – which he did. When Constable Kumar told him to take his jacket off “please”, he did so immediately. When he had given his jacket to Constable Kumar, he immediately resumed the position he had been told to adopt – facing the column with his hands on the column above his head. He remained in that position until Constable King told him, once the search had been completed, “You can turn around now.”.
Mr Alidi’s immediate compliance with each directive – to stand up, to put his hands on the column, to stand there, to take off his jacket – provide strong indications that he considered he did not have any choice in the matter.
When Constable Kumar told him to “Stand here”, he also told Mr Alidi that his body worn camera was recording all of Mr Alidi’s actions and their conversations. This provided a further indication to Mr Alidi that what was happening was official police business, and he did not have a choice.
Neither Constable Kumar nor Constable King gave evidence that they had asked Mr Alidi to consent to the pat down search.
Constable Kumar made no mention in his contemporaneous COPS event record of the search being conducted with Mr Alidi’s consent. To the contrary, his COPS entry recorded that the police formed a “reasonable suspicion” and exercised “actual powers” in conducting a “person search”.
I take into account that Mr Alidi did not give evidence in his own case. As explained in Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 per Beech-Jones JA (Brereton & Mitchelmore JJA agreeing) at [46]-[48], two possible consequences may follow from a party’s failure to call a witness whom they might be expected to call. The first is that the Court may infer that the evidence of the witness who was not called would not have assisted that party’s case (a “Jones v Dunkel inference”). The other consequence is that the Court may have greater confidence in drawing an inference unfavourable to that party. A Jones v Dunkel inference has relatively weak evidentiary value. It does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party, and it does not enable a court to discount or diminish the value of the evidence that a party adduced. There is no obligation on a jury or a judge to draw any such inference.
Counsel for the defendant submitted that the video demonstrated, which I accept, that Mr Alidi did not protest and cooperated, and that he therefore consented. I do not accept that one flows from the other. It is necessary to consider all of the circumstances.
Having regard to all of those matters, I find that Mr Alidi did not consent to the pat down search conducted by Constable Kumar on 25 May 2023. In other words, the search was not voluntary or consensual.
I am satisfied that Constable Kumar did have a suspicion immediately before undertaking the search that Mr Alidi had a dangerous implement unlawfully in his possession or under his control for the following reasons.
In his evidence in chief Constable Kumar said that he “had … suspicion that he had a knife in his – on his person”.
The fact that he held that suspicion is consistent with the fact that before undertaking the search Constable Kumar looked at the warnings on his Mobi Pol device, which were “18/05/2023 POI MAY CARRY KNIFE IN BACKPACK”; “06/04/2023 WALKED INTO SURRY HILL POLICE STATION WITH AXE”; and “24/03/2023 POI MAY CARRY KNIVES. ONE LOCATED IN RIGHT BACK POCKET. USE CAUTION”. It is also consistent with the fact that the transcript of what was said in so far as it was recorded on Constable Kumar’s body worn video camera confirms that both he and Constable King were searching for a knife. It is also consistent with the contemporaneous COPS event record created by Constable Kumar. There Constable Kumar recorded in summary form that the “primary reason” for the search was “KNIFE/WEAPON USED/INTENDED TO BE USED”, and in more detail in the narrative that “Police conducted checks on the PN which revealed that he had recent warnings for carrying a knife and an axe …” and “Due to the PN’s history for drug and knife, the time and the PN’s recent warnings on possession of knife, police formed the reasonable suspicion that the PN was in possession of a knife.”.
Constable Kumar gave unchallenged evidence that Constable King told Mr Alidi reason he was being searched was because Constable King suspected Mr Alidi to be in possession of a knife. This was not recorded on body worn camera footage, however, the video that is available records at the conclusion of Constable Kumar’s pat down search Constable King told Mr Alidi that he was satisfied he did not have a knife on him. Constable King’s statement, recorded on the video, provides strong contemporaneous evidence of the fact that he and Constable Kumar were looking for a knife. The fact that they were looking for a knife is consistent with holding the suspicion that he had a knife.
I do not accept the plaintiff’s submission that Constable Kumar did not in fact hold the suspicion because he accepted the proposition in cross-examination that he was inquiring into “the possibility” that Mr Alidi might have been in the possession of a dangerous implement unlawfully. It is necessary to take into account all of his oral evidence together with the contemporaneous records.
In his evidence in chief, Constable Kumar said that the basis for his suspicion that Mr Alidi had a knife was that Mr Alidi had 3 recent warnings on his COPS profile which were “for knife being found on, on him, for which he was charged as well”. Constable Kumar knew this because he looked at the warnings on his Mobi Pol device. I have already quoted the content of those warnings – see paragraph 87 above. Constable Kumar said that he also took into account his “previous interaction where I had seen a sledgehammer in his possession, syringes in his backpack, him confessing or making admissions on consuming cannabis”. The reference to seeing Mr Alidi with a sledgehammer is a reference to Constable Kumar’s earlier evidence about a “third incident”, in the month of March. Constable Kumar said “we were conducting high visibility patrols and we just stopped to have a conversation with Mr Alidi on the junction of Maroubra Road and Anzac Parade. … I observed him to be sitting on an electric wheelchair and during our conversation I found that he was in possession of a sledgehammer”. Reference to having syringes and making admissions was a reference to Constable Kumar’s earlier evidence about a further incident in May. Constable Kumar said that “again we were conducting high visibility patrols in the Maroubra area … This is a Housing commission area in Maroubra. And roughly around midday we observed Mr Alidi to be walking in one of the streets and that’s when we stopped and decided to have a chat with him. … Mr Alidi was searched. During the search he did disclose about consuming cannabis a few days ago, and also we found some capped syringes in his backpack …. I believe there were three or four. Not exactly. I’m not really sure.”.
In cross-examination, Constable Kumar agreed that he acted on the warnings that were on the MobiPol device. When asked if there was anything else he said “and my experience”. I took this to be a reference to his experience with Mr Alidi, described in his evidence in chief.
In closing submissions counsel for the defendant identified the grounds as the entries in the Mobi Pol device and having found Mr Alidi previously with a sledgehammer (written submissions paragraphs 16 and 14).
In my view, having seen Mr Alidi with a sledgehammer in March did not provide reasonable grounds for suspicion that he had a knife on the evening of 25 May. By then it was 2 months later, but more importantly a sledgehammer is a rather large implement. It would not have fitted inside the bag Mr Alidi had with him on 25 May and he could not have concealed it in the clothes he was wearing. If he had a sledgehammer again on 25 May, Constable Kumar and Constable King would most likely have seen it without searching Mr Alidi’s bag or person.
Similarly, in my view, Constable Kumar’s previous experience of having seen Mr Alidi with some capped syringes and admitting that he had consumed cannabis did not provide reasonable grounds for suspicion that he had a knife.
The position is different, however, in relation to the warnings that Constable Kumar read on his MobiPol device. The first warning was quite recent – it was created on 18 May 2023 and warned that Mr Alidi “MAY CARRY KNIFE IN BACKPACK”. The third warning, although 2 months previous (created on 24 March 2023) also warned that Mr Alidi “MAY CARRY KNIVES”, and specifically “ONE LOCATED IN RIGHT BACK POCKET”. The warning included “USE CAUTION”.
In my view, both of those warnings provided reasonable grounds for Constable Kumar’s suspicion that Mr Alidi had a knife in his possession or control.
The second warning (created on 6 April 2023) that Mr Alidi “WALKED INTO SURRY HILL POLICE STATION WITH AXE” is less significant, because as with a sledgehammer one would have expected Constable Kumar and Constable King to be able to see an axe without the need for a search. Nevertheless the nature of the article concerned (an axe) does lend some weight to taking the other 2 warnings seriously.
Counsel for Mr Alidi submitted that the MobiPol device warnings were not enough to provide reasonable grounds for the suspicion because they were historical matters. Counsel accepted that the 18 May warning could be categorised as recent, however submitted that there also has to be something happening in real time - for example a report from a member of the public that they may have seen the plaintiff brandishing a knife or playing with some sort of knife.
I do not accept this submission. It is not necessary for something to be happening in real time. The 18 May warning was recent enough to provide reasonable grounds, particularly in the context of the other 2 warnings.
For all of those reasons I find that Constable Kumar suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control before conducting the pat down search on 25 May 2023.
In his evidence in chief, Constable Kumar was asked the question “Did you have a reasonable suspicion that he had anything else in his possession or not?” to which he answered “Possibly drugs”. In answer to the question “Then moving to drugs. Did you have a suspicion that he had drugs in his possession?” he answered “I suspected yes.”.
In cross-examination, Constable Kumar gave the following evidence:
Q. I suggest to you that you did not, in fact, suspect that the plaintiff had in his possession a prohibited drug, did you?
A. I suspected?
Q. I suggest to you that you did not have that suspicion at that time?
A. Initially, no.
Q. In fact, your evidence is that you - and I'm using your word. You were looking into the possibility that he was in possession of drugs?
A. Yes.
Q. You use the word "possibly"; correct?
A. Yes.
Q. You were just acting on a hunch that he might have been in possession of drugs; would you agree with that?
A. Yes.
Constable Kumar did not record in the contemporaneous COPS event record he created that he formed the suspicion Mr Alidi had in his possession or under his control a prohibited plant or a prohibited drug. The narrative details recorded that the police conducted checks which revealed he had recent warnings for “drug consumption”. Constable Kumar accepted in cross-examination that this was not correct - there was no warning for “drug consumption”. Otherwise the COPS event records that the police issued Mr Alidi “a move on direction for his behaviour and possible drug purchase in the area”.
As I have mentioned, Constable Kumar’s unchallenged evidence was that Constable King told Mr Alidi that he was being searched because Constable King suspected that he was in possession of a knife. Neither Constable Kumar nor Constable King gave evidence that either of them told Mr Alidi that they were conducting a search because they suspected he had a prohibited drug.
Having regard to Constable Kumar’s own evidence in both examination in chief but particularly in cross-examination, I am not satisfied that Constable Kumar did have a suspicion immediately before undertaking the search that Mr Alidi had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
Strictly speaking it is unnecessary to address this question because I have found that Constable Kumar in fact did not have the suspicion.
In any event, the grounds he put forward in his evidence in chief were (a) “first off was … his way of talking with us and his way of movement”; (b) “second one was based on work previous interaction with Mr Alidi, we finding syringes in his backpack and him … making admissions that he consumed cannabis a few weeks ago or a few days ago”; (c) “And there were more events placed by our officers from the safe unit while searching to – with whom as well Mr Alidi had made admissions of consuming cannabis, which was in the same, I think a few days ago or week ago”; (d) “the spot where he was sitting was pretty close to Pacific Square where we have ATM machines just on the footpath accessible to the general public, and it’s a very general modus operandi the where people go to those ATM machines, they withdraw cash and may procure drugs with those”.
In cross-examination, Constable Kumar agreed that Mr Alidi was not actually at Pacific Square, but instead was outside the library. Constable Kumar agreed that before going up to Mr Alidi outside the library, he had not seen Mr Alidi go to the ATM machine or meet up with someone very quickly on the street. Constable Kumar said that Mr Alidi appeared to him to be unsteady on his feet when he got up from the bench and had been sitting on and took 2 steps across to the column he put his hands up against. Constable Kumar said that at times Mr Alidi was mumbling or rambling a few words, but for the most part his speech was pretty clear.
Once again, it is unnecessary for me to address this question because I have found that Constable Kumar did not have the suspicion.
However, even if I had found that Constable Kumar did have the suspicion, I would not have found that the grounds he gave were reasonable grounds.
I say that because Constable Kumar accepted in cross-examination that for the most part Mr Alidi’s speech was clear. That conclusion is borne out by the available body worn camera video once the sound was being recorded. It was not reasonable for Constable Kumar to form the view that Mr Alidi was unsteady on his feet before undertaking the search because for the whole time that Mr Alidi was engaging with the police officers up to the time that he was directed to stand up and put his hands onto the column, Mr Alidi was sitting on the bench. He was not on his feet at all. Finding capped syringes in Mr Alidi’s backpack on a prior occasion might provide reasonable grounds for suspecting that he still had capped syringes in his backpack, but not that he had a prohibited drug or plant in his possession. The fact that he had admitted using cannabis on a past occasion similarly would not provide a reasonable ground for suspecting that he had cannabis or some other prohibited drug in his possession or control on that night. It was not reasonable to suspect that Mr Alidi had drugs in his possession simply because there were automatic teller machines on a public street in a different location when there was no suggestion that Mr Alidi had been seen withdrawing cash or speaking to someone else near the machines.
I summarised what happened at the start of these reasons.
Most of the interaction was captured on the body worn video cameras of both Constable King and Constable Dover The recordings from both cameras were in evidence together with transcripts of what was said.
The general tenor of the whole interaction shown on the videos is one of calm, respectful and non-confrontational communication. In the initial stages Mr Alidi’s response may perhaps be described as being consensual or voluntary. However by the time Constable King announced that he was going to subject Mr Alidi to a general search for a knife, things had changed. By then the pat down search to come was not consensual or voluntary.
The change can be seen from the following extract from the transcript of Constable King’s video.
Constable Dover: So you haven’t got any knives or anything like that on you now?
Tshepo Alidi: No no, I got nothing, I promise.
Constable King: Can we check your pockets, mate?
Tshepo Alidi: Aw man, I’m not even wearing underwear, man.
Constable Dover: We don’t plan on checking that far.
Constable King: Oh I don’t plan, I don’t plan on going down that far, yeah.
Tshepo Alidi: Maybe, uh, maybe that’s a knife
Constable King: I’ll just have a check in your pockets, alright?
Tshepo Alidi: Yeah, yeah, yeah.
Constable Dover: You’ve been charged with possession of a knife twice and you walked into the cop shop with an axe.
Tshepo Alidi: I walked with an axe?
Constable Dover: So we’re just going to search you and ensure you haven’t got…
Tshepo Alidi: Watch watch this guy. Watch this guy.
Constable King: He’ll be alright.
Constable Dover: …any dangerous implements on your person, okay?
Tshepo Alidi: Yeah. I mean, for the public. Come on.
Constable King: What’s in your… Don’t… Just…
Tshepo Alidi: Yeah, yeah, yeah, yeah.
Constable King: You’ve been charged with knife stuff. I don’t want your hands in your pockets. Come on, Tshepo.
Tshepo Alidi: Yeah, man. Do your thing. Do your thing.
Constable King: Alright. My name’s Constable King. I’m from Randwick Police. You’re just going to be subject to a general search for a knife, okay?
Tshepo Alidi: Yes, sir.
Constable King: Um, just during the search I just, ask for your cooperation, okay?
Tshepo Alidi: Yep.
Officer King: Is there anything on you now? Anything sharp? Any knives?
Tshepo Alidi: Nothing nothing.
Constable King: Any prohibited things?
Constable King: Nup? Alright. Just keep your hands in front, alright?
The question at [00:01:03.03] “Can we check your pockets, mate?” started as a request to provide consent, which then led to what might be described as some banter or negotiation, which then led to a more insistent question at [00:01:09.11] “I’ll just have a check in your pockets, all right?” and the response at [00:01:13:12] “Yeah, yeah, yeah”.
Things changed however when Constable Dover announced at [00:01:21.10] / [00:01:26.08] “So we’re just going to search you and ensure you haven’t got any dangerous implemen**ts on your person, okay?” and when Constable King at [00:01:34.00] gave his name and station and said “You’re just going to be subject to a general search for a knife, okay?”. Whilst framed as questions, these were more truly in the nature of statements of intention or directives. In context, Mr Alidi variously saying “yeah, yeah yeah*, yeah”*, “Yeah man. Do your thing. Do your thing.” were expressions of his resignation to the process and recognition that he had no choice in the matter.
That conclusion is supported by Constable King’s own evidence. He agreed in cross-examination that his understanding was that he was exercising his police power to stop and search Mr Alidi.
There are the added circumstances that both Constable King and Constable Dover were in uniform and had arrived in a Police car.
Having regard to all of those matters, I find that Mr Alidi did not consent to the pat down search. It was neither consensual nor voluntary.
I am satisfied that Constable King did have a suspicion immediately before undertaking the search that Mr Alidi had a dangerous implement unlawfully in his possession or under his control for the following reasons.
In his evidence in chief Constable King said prior to searching Mr Alidi he suspected that he had a knife in his possession.
In cross-examination Constable King denied that he was “looking into the possibility” that Mr Alidi was in possession of a dangerous implement. Constable King said “No, he was searched because he – we believed he had an implement on him.”.
The fact that he held the suspicion is consistent with his announcement, recorded on his bodycam video, that he was going to search Mr Alidi for a knife. His concern that Mr Alidi had a knife is also indicated by the fact that he said to Mr Alidi, immediately prior “You’ve been charged with knife stuff. I don’t want your hands in pockets. Come on, Tshepo.”.
Q. How does being in possession of a knife justify a search?
A. Being in possession of a knife in a public place is illegal without a reasonable excuse.
Q. What did you take into account on this occasion when forming your suspicion?
A. We had the two recent charges of the knife possession within those two to three-month period. There was the warnings on his profile that he had that axe that he walked into the police station with. And I believe there was a warning for a knife possession as well. And his mental instability from the previous events that we - I've attended and that I overlooked through crime summaries, it would've been just for community safety and to the fact whether or not he just didn't know that it wasn't allowed or not, as it says on the body-worn, you know, having a chat saying, "You know you're not allowed to have that knife in your possession".
Q. How is mental instability relevant to having a knife?
A. Just the community safety, obviously. If he doesn't know that he's not meant to have it for whatever safety reasons, if he thinks he can have it for whatever other reasons. It's just that - and it's illegal. It shouldn't be in his possession.
In cross-examination, Constable King agreed that there was really no change in information between 25 and 31 May.
Whilst Constable King did not refer to it in his evidence (which he was giving on 4 June 2025, 2 years after the event) there was something else I infer he took into account on the day because it happened in front of him and was recorded on Constable Dover’s bodyworn video recorder, and partly on his own. The something else was the following exchange (according to the transcript of Constable Dover’s video):
Constable Dover: You got charged with a knife the other day. Custody of a knife.
Tshepo Alidi: Yeah, the case is on the 12th, the 12th of July.
Constable Dover: What happened? You had something in your bag.
Tshepo Alidi: No. It’s a surgical. It comes as a set. It’s called, um, what do they call them? Precision crafting tools.
Constable King: Yeah, well we’ve been through this. You know you can’t have a knife or a sharp object in a public place.
Tshepo Alidi: No, now gentlemen. You have to have a definition of what a knife is. You have to… I mean, given, for example, a lady has a filing tool for the nails.
Constable Dover: You’re on bail now.
Tshepo Alidi: I am. 6 to 8. Curfew. I mean, a filing tool, honestly, you’re gonna tell me that’s a knife?
Constable King: No.
Tshepo Alidi: Yeah. So this is what I use to shave my moustache. Remove my little bit of callus.
Counsel for Mr Alidi submitted that in circumstances where Constable King conceded in cross-examination that there was no change in the information pertaining to Mr Alidi between 25 and 31 May, reliance on the same information as before, in circumstances where that information did not yield a result upon the prior search, cannot constitute reasonable grounds.
Counsel submitted that the court should not draw an inference that Constable King took into account specifically what Constable Dover said to Mr Alidi “you got charged with a knife the other day” as something new to Constable King because this was a reference to one of the 2 “recent charges of … knife possession”. Counsel submitted that this was not something new to Constable King for 2 reasons: firstly because he had not said that in evidence; and secondly because Constable King already knew about the charge – being the charge for an offence on 18 May 2023 – because, whilst Constable King did not look at his Mobi Pol device on 31 May, he had consulted it on 25 May during his previous encounter with Mr Alidi and at that time he had looked at the Court attendance notice in relation to that charge.
Having regard to those submissions, I would not go so far as to infer that Constable King took into account what Constable Dover said about being “charged with a knife the other day” as a new piece of information. However, I do infer that Constable King took into account what was said, as recorded on the video and extracted above.
Constable King was obviously aware that the search Constable Kumar had conducted on 25 May 2023 did not yield a result, because Constable King was there. Nevertheless, the information relied upon to conduct that search was not spent, so that some or all of it could not be relied upon 6 days later. Much of the information was still recent and relevant 6 days later. It was still reasonable to take it into account.
Further, Constable King took into account additional matters. Constable King’s evidence that his grounds included that he also took into account his view about Mr Alidi’s “mental instability” from his own observations and looking “through crime summaries” was not challenged. Nor was his evidence about what he took from the “chat” (recorded on the bodyworn video) challenged. That is that he had a concern about “the fact whether or not he just didn't know that it wasn't allowed or not”. It was reasonable to take those things into account.
For all of those reasons I find that Constable King suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control before conducting the pat down search on 31 May 2023.
In Case number 2024/00164941 which concerns the pat down search conducted by Constable Kumar on 25 May 2023:
I have found that Mr Alidi did not consent to the search.
I am satisfied that Constable Kumar was authorised to conduct the search under s.23(1) of LEPRA because he suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control.
Mr Alidi’s claim should be dismissed and there should be judgment for the defendant.
In Case number 2024/00136623 which concerns the pat down search conducted by Constable King on 31 May 2023:
I have found that Mr Alidi did not consent to the search.
I am satisfied that Constable King was authorised to conduct the search under s.23(1) of LEPRA because he suspected on reasonable grounds that Mr Alidi had a dangerous implement unlawfully in his possession or under his control.
Mr Alidi’s claim should be dismissed and there should be judgment for the defendant.
Ordinarily costs would follow the event, however I was informed by counsel for the defendant (T130-131) that if the State successfully defended both matters it did not seek costs against the plaintiff.
On that basis I will make no order as to costs in each case, to the intent that each party bear their own costs of the proceedings.
The plaintiff sought general damages of $1500 and exemplary damages of $2500 for false imprisonment and $1500 general damages and $5000 exemplary damages for battery.
The defendant submitted that the plaintiff should be awarded nominal, contemptuous or derisory damages of zero dollars.
The right protected by the tort of battery is the right to bodily integrity. The suffering of harm or special damage is not a necessary component of the action. It is based on the fundamental principle that everybody is protected not only against physical injury but against any form of physical molestation. See paragraph 14 above.
The principal function of the tort of false imprisonment is to provide a remedy for injury to liberty and damages are awarded to vindicate personal liberty, rather than as compensation for loss per se. See paragraph 18 above.
The defendant cited a number of defamation cases in support of its submission. The principal interest protected by the tort of defamation is the plaintiff’s reputation, which is quite different to the rights protected by the torts of battery and false imprisonment.
Exemplary damages are intended to punish and deter similar conduct in the future. They are awarded for conscious wrongdoing in contumelious disregard of another’s rights.
In my view, it would not be an appropriate case for exemplary damages.
In all the circumstances, it makes little sense to attempt to assess damages for battery and for false imprisonment separately and I would have assessed the plaintiff’s damages at $2,000.
The plaintiff sought the same damages as for the search on 25 May 2023.
I would have come to the same conclusions and would have assessed damages at $2,000.
For those reasons I make the following orders in each case:
Judgment for the defendant.
Make no order as to costs, with the intention that each party bear their own costs of the proceedings.
Alidi
State of New South Wales [2026] NSWDC 58
(1988) 13 NSWLR 714
(2016) 95 NSWLR 117
(1964) 111 CLR 384
(1992) 175 CLR 218
(1978) 19 SASR 515
(2005) 222 CLR 612
(1957) 97 CLR 465