Carroll v R

Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 11
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Evidence Act 1995 (NSW) s 138, s 139
Inclosed Lands Protection Act 1901 (NSW) s 41B
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 36

Cases Cited: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Reyes-Carrion v State of New South Wales [2025] NSWDC 28
Williams v Keelty [2001] 111 FCRJ; [2001] FCA 1301

Category: Principal judgment

Parties: Brad Gerard Carroll (Appellant)
Rex (Crown)

Representation: Counsel:
E Gilson (Solicitor) (Appellant)
L Ernst (Solicitor) (Crown)
Solicitors:
Legal Aid NSW (Appellant)
ODPP (Crown)

File Number(s): 2025/33543

Publication restriction: Nil

JUDGMENT; ex-tempore (revised)

1. On 24 July 2025 at Waverly Local Court, the Appellant was found guilty by a magistrate of two counts of unlawful entry on inclosed lands contrary to s 41B of the Inclosed Lands Protection Act 1901 (NSW).

2. The facts found were that his consent to enter any premises controlled by Westfield had been withdrawn and he had been served with a notice of that fact. He admitted to police that he had been to Westfield on 16 June 2025.

3. The Appellant was convicted by the magistrate and dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. The conviction depended entirely on admissions made by the Appellant to Constable Blair on 16 June 2025. The evidence of those admissions was objected to on a number of grounds before the magistrate. The magistrate allowed the evidence finding, essentially, that the evidence was admissible because there had been on impropriety or unlawfulness involved in the obtaining of the evidence, and therefore ss 138 and 139 of the Evidence Act 1995 (NSW) (“Evidence Act”) were not engaged.

5. The Appellant appeals his conviction pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). His grounds of appeal revisit the objection to the evidence of the admissions upon the same grounds as were put to the magistrate. The Appellant contends that none of the conversation containing the admissions with the Appellant ought to have been admitted because they were the consequence of an improper or illegal use of the stop and search power.

6. The hearing before the magistrate proceeded on the evidence of Constable Blair. The evidence tendered, firstly on the voir dire, as to the admissibility of the evidence and subsequently on the hearing, established that the Appellant was observed by Constable Blair and another officer in the front passenger seat of a vehicle in Bondi on 16 January 2025. It turned out the other person in the car was the Appellant’s NDIS worker. Constable Blair knew the Appellant and had had a number of interactions with him in the past.

7. Constable Blair and the other officer then followed the vehicle where it stopped, and the Appellant was seen to get out of the car, walk into the garden at the front of 42 Flood Street Bondi. About two minutes later, he came back out empty handed, with the driver remaining seated in the driver’s seat. The car then drove away.

8. Constable Blair and the other officer stopped the vehicle a short time later and told the Appellant that there was a suspicion that he was in the possession of prohibited drugs, and that that suspicion was based on the fact that he had gone in and out of 42 Flood Street quickly, and that 42 Flood Street was known to Constable Blair as being a place of drug supply.

9. Thereafter the Appellant and the driver were both subjected to searches which found nothing.

10. Very early on in the course of the interaction, the Appellant volunteered to Constable Blair, when asked what he had been doing, he said that he had been shopping at Woolworths Bondi Junction and Westfield Bondi Junction, both premises from which Constable Blair knew he had been banned. It was based on those admissions that the Appellant was charged with the offences that came before the Court.

11. The Appellant’s contention was that the act of stopping the vehicle was unlawful and/or improper in that the power to do so under s 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) had not been engaged.

12. That provision provides that a police officer may stop, search and detain a vehicle if an officer “suspects” on “reasonable grounds” that the vehicle or the occupants possess or contain something unlawful.

13. Constable Blair said that he held such a suspicion in his evidence, and also at the time when he pulled the car over, spoke to the Appellant, he said, “I believe that he must have collected drugs from the unit complex.”

14. During their interaction, Constable Blair said his reason for suspicion was the going in and out of the 42 Flood Street grounds.

15. In his evidence, Constable Blair also identified some other grounds for his alleged suspicion. They were, firstly, his understanding of the Appellant’s criminal record. Secondly, his understanding of prior exercises of stop and search powers by the police on the Appellant. Thirdly, an interaction involving a drug dog on a train. Fourthly, the Appellant’s previous interactions with Constable Blair where he said he formed the opinion that the Appellant was drug affected. And, finally, what was loosely described as other “intelligence.”

16. As was accepted before me on behalf of the Crown by Mr Ernst, it is clear that the central and primary ground relied upon by Constable Blair was the combination of his understanding of 42 Flood Street being a known place for the supplier of drugs, and the fact that the Appellant went in and out of it in a very short time, which looked to him to be consistent with a quick purchase of drugs from within the unit.

17. Accepting that Constable Blair did suspect that the Appellant had purchased drugs in Flood Street, the question then becomes did he have reasonable grounds for that suspicion.

18. I recently tried to explain my understanding of the legal test imposed by s 36 in a case called Reyes-Carrion v State of New South Wales [2025] NSWDC 28, between paras [50] and [55].

19. I concluded the proper approach to be that the question of whether grounds were reasonable or not for the purpose of s 36 is that it is an objective question for the Court to determine, the answer to which will be binary. Either the grounds constitute reasonable grounds, or they do not. If an officer forms a suspicion based on grounds that are not reasonable, then the suspicion will not be a relevant suspicion to engage the power because it will have taken into account irrelevant matters or misunderstood the statutory test.

20. That does not mean that a judge, having concluded that a particular officer or officers held a particular suspicion, decides the matter by asking him or herself whether those particular grounds would cause the judge to hold that suspicion. That may well be a matter about which reasonable minds may come to different conclusions. It was that approach that Healy J was considering in Williams v Keelty [2001] 111 FCRJ; [2001] FCA 1301 at 166 where he said:

“A court is not entitled to substitute its own opinion on the question of the opinion of the issuing officer.”

21. Some of the confusion in this area of law comes about because the statutory test is often stated in a shorthand way as a “reasonable suspicion.” As if there is one state of mind being considered. Looked at in this way, it is easy to see how one could identify the answer as being one about which reasonable minds might differ, and thus only be impeachable by the very onerous test described in cases such as Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, but to reason a matter in that way is, in my opinion, to ask the wrong question and thus get the right answer to that question but fail to engage with the actual statutory test.

22. This is the point. The suspicion itself does not have to be reasonable. That is not the first question. What needs to be first identified is a subjective state of mind amounting to a suspicion. That suspicion might be unreasonable, it might be reasonable, it does not matter. Once that suspicion is accepted by the Court, the separate and distinct question of whether that suspicion was based on reasonable grounds must be considered. In doing so, a judge is not deciding whether he or she would have, on those particular grounds, held the same suspicion. Rather, the judge is required to consider the grounds objectively to determine whether those grounds constitute, as a matter of law, “reasonable grounds for the suspicion.” If a court determines those grounds were not reasonable grounds, then the officer could not lawfully reach the suspicion required by the statute and the power was not engaged.

23. As I have said, in this case it is clear from the evidence of the officer and also from the way the submissions were put to me, that there was a primary ground relied upon, and that ground was the combination of his knowledge of the 42 Flood Street location, together with the Appellant going in and out of that property quickly. The question becomes, is that a reasonable ground, firstly on its own and secondly combined with some of the other grounds said to have been relied upon by the officer.

24. In my view the combination of the grounds being the known propensity of 42 Flood Street to be a drug supply area, and the Appellant going in and out of it quickly does not constitute a reasonable ground for a suspicion.

25. This is because the explanation for a person going in and out of those premises may well be entirely innocent. 42 Flood Street comprises a very large amount of separate units. A person might live there and be dropping in to pick up something from their own house. Or the person might be visiting a friend, and the friend is not home. Accordingly, just because a location is known to be involved with drugs and a person drops into them, in the absence of anything else is not a reasonable ground. It may well be different if a particular property is visited, but as I have said, 42 Flood Street is made up of very many units. If this conclusion be wrong, then it would mean that anyone who lived in the vicinity of premises known for the supply of drugs could be stopped and searched ad infinitum by police officers which, in my view, only demonstrates why that ground on its own is not a reasonable ground.

26. Turning then to the other grounds not stated by the officer at the time but stated by the officer in his evidence about which there is considerable attack on the officer’s credit as to whether he relied on these matters at all. For the present purposes, accepting that he did rely on those grounds at the time, the first was what he said to be his knowledge of the Appellant’s criminal history. As it turned out, the Appellant’s criminal history was a very inconsequential possession of prescription type drugs many years earlier. Accordingly, reliance on that criminal record, whatever the position may be with reliance on criminal records generally, could not possibly be a reasonable ground. The second was that the officer was aware that the Appellant had been involved in a number of stop and searches where other officers had held suspicions that he possessed drugs. The officer also knew that those searches had produced no evidence of the Appellant possessing drugs. In my view, if that factor points in any direction, it points against a suspicion that the Appellant was holding drugs. It cannot be right that police officers can rely on the fact that other officers on previous occasions had apparently suspected a person of offences and stopped and searched that person, if for no other reason than such an approach must amount to a self-fulfilling prophecy, being that the more a person is stopped and searched the more reasonable it becomes for police officers to have a basis to do it again. That inverts the intention of the legislation.

27. Constable Blair then said that he had interacted with the Appellant on a number of occasions and had formed the view that he had been drug affected on those occasions.

28. This evidence about this was incredibly vague and at a high level, and I am not prepared to give his opinion any weight, especially in light of the fact that it is clear that the Appellant suffers from mental health issues which obviously could mask or present as drug influenced, as could the taking of various prescribed drugs for those same mental health issues. In any event, the evidence given by Constable Blair was at such a high and vague level that I would not give it any weight.

29. Constable Blair also referred to what he understood was the history of the intelligence as to the Appellant’s history with drugs. It was not at all clear what that intelligence was, other than the reference to his criminal record and the earlier stop and searches and the interactions where he appeared drug affected, all of which I have already dealt with. As to the incident with the drug dog on a train, again, it was so vague as to be valueless. In any event, again no drugs were found on the Appellant on that occasion.

30. For all those reasons, and without dealing with the submission made that the magistrate ought not to have accepted the grounds put forward by Constable Blair in his evidence, over and above the Flood Street situation were actually relied on by him, I conclude that the grounds said to have been relied upon by Officer Blair did not individually or together amount to reasonable grounds for the purpose of s 36. Therefore, the stop power exercised was not properly engaged, and therefore the admissions obtained following that purported exercise of power should have been ruled either illegally obtained, or probably more correctly improperly obtained, thus engaging the discretion under s 139.

31. Mr Ernst, on behalf of the Crown, has not suggested that, in the event I came to that conclusion, that the discretion should be exercised in favour of the Crown. I think that concession is well made in light of all the circumstances which I have described and taking into account the offence for which the Appellant was ultimately charged, being the entering Westfield without permission.

32. In those circumstances, I do not need to deal with the second ground of appeal which is that the Appellant ought to have been cautioned, but I will do so briefly.

33. Whatever the proper construction of s 139 of the Evidence Act might be in other circumstances, and it is difficult, I have already determined that the exercise of power under which the Appellant was being detained was not valid, and therefore subs (6) of s 139 is not engaged. Therefore, under s 5 the Appellant was deemed to be under arrest, and he should have been cautioned before he made the admissions.

34. Even if I am wrong as to the first question, that is the exercise of the stop power, and even if therefore a cautioning under s 139 was not mandatory, I consider in all the circumstances it was appropriate for the police to have cautioned the Appellant before they started asking him questions, but I do not need to take that aspect of the matter any further.

35. So, for all those reasons, I uphold the appeal and set aside the orders of the magistrate as to conviction. If it does not automatically follow, that means I also set aside the sentence.

**********