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[2025] NSWDC 350
District Court of NSW
2025-09-05
Waugh SC DCJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fuller v State of New South Wales [2025] NSWDC 350
Hearing dates: 18, 19, 20 and 21 March 2025
Date of orders: 5 September 2025
Decision date: 05 September 2025
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision: 1. Judgment for the defendant.
2. Plaintiff to pay the defendant’s costs of the proceedings.
Catchwords: TORTS – Trespass to person – False imprisonment, battery – Trespass to goods – Alleged unlawful search – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21 – power to stop, search and detain a person without a warrant if police officer suspects on reasonable grounds that the person has in their possession or under their control a prohibited drug
Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 99(1)(a)
Cases Cited: Azar v Director of Public Prosecutions [2014] NSWSC 132; (2014) 239 A Crim R 75
Emde v State of New South Wales [2025] NSWCA 41
George v Rockett (1990) 170 CLR 104
Hrdavec v State of New South Wales [2022] NSWCA 52
Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 517
Lule v State of New South Wales [2018] NSWCA 125
Prior v Mole [2017] HCA 10; (2017) 261 CLR 265
Reyes-Carrion v State of New South Wales [2025] NSWDC 28
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Madden (2024) 113 NSWLR 509
Category: Principal judgment
Parties: Plaintiff: Christopher Fuller
Defendant: State of New South Wales
Representation: Counsel:
Mr A Canceri (Plaintiff)
Mr J D Brezniak (Defendant)
Solicitors:
Aussie Lawyers (Plaintiff)
Norton Rose Fullbright (Defendant)
File Number(s): 2024/00193553
Publication restriction: Nil
At about 9.15 p.m. on Saturday, 13 January 2024 Mr Fuller was on the footpath opposite the building known as “Kendall” at 43 Morehead Street, Redfern and in the process of unlocking a Lime bike when he was approached by Constable Marshall Fletcher, a police officer stationed at Redfern. The events that then took place were captured on Constable Fletcher’s body worn video recorder.
At the time, Mr Fuller was with his life partner Mr Jacobsen, who was also on the footpath and in the process of unlocking another Lime bike. He was approached by Senior Constable Jonathan Feneley. The events that took place between Senior Constable Feneley and Mr Jacobsen were captured on Senior Constable Feneley’s body worn video recorder.
Constable Fletcher’s video is time stamped. The recording started at 21:16:37 and finished at 21:25:09. During that 8 minutes and 32 seconds, Mr Fuller alleges that he was falsely imprisoned, suffered a battery and a trespass to his goods.
Constable Fletcher’s video shows that Mr Fuller was subjected to a search of his person and possessions.
Ultimately, no complaint was made about how Constable Fletcher went about conducting his conversation with Mr Fuller and undertaking the search. The real question is whether the search was justified. The defendant bears the onus of establishing that it was.
The defendant asserts that the search was justified by s 21 of the Law Enforcement (Powers a**nd Responsibilities) Act 2002 (NSW), commonly abbreviated to LEPRA, and more particularly by s 21(1)(d).
“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.”
The phrase “suspects on reasonable grounds” is used repeatedly throughout LEPRA, including in s 99(1)(a) which concerns the power to arrest without warrant. Section 99(1)(a) provides that “A police officer may, without a warrant, arrest a person if – (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence”.
The authority of a police officer to “stop, search and detain” previously found in s 357E of the Crimes Act 1900 (NSW) was considered by the Court of Criminal Appeal in R v Rondo [2001] NSWCCA 540, (2001) 126 A Crim R 562. At the time, s 357E provided:
“357E
A member of the police force may stop, search and detain:
(a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or
(b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence.”
“(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.”
In Lule v State of New South Wales [2018] NSWCA 125, Macfarlan JA (Beazley P and Barrett AJA agreeing) summarised the legal principles applicable to s 99(1)(a) of LEPRA at [62]-[72]. In my view the same principles apply to s 21(1).
In Lule, Macfarlan JA said at [63]-[64]:
“63. Section 99(1)(a) of LEPRA requires the arresting police officer to have a subjectively held suspicion that the person to be arrested is committing or has committed an offence (George v Rockett at 112). It is common ground that in the present case the arresting officer, Constable Thomas, had this state of mind. The section also requires that the suspicion be held “on reasonable grounds”. This involves an objective test; that is, whether a reasonable police officer in the position of the arresting officer would, or perhaps could, have held that suspicion. As stated in George v Rockett at 115, “[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown”. Their Honours at 115 referred with approval to Kitto J’s statement in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21 that:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it ...”
See also Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [4], [24], [73] and [98]-[100].
64. “Reasonable grounds” must be determined objectively by undertaking “an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question” (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [10]-[11]). The existence of reasonable grounds for a belief (and therefore of a suspicion) “depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15(8)] per McColl JA, referring to O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, 310 and 303).”
Macfarlan JA referred to Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 at [4], [24], [73] and [98]-[100]. In Prior v Mole the relevant legislation was s 128(1) of the Police Administration Act 1978 (NT). It used the phrase “reasonable grounds for believing”. All members of the Court cited George v Rockett (1990) 170 CLR 104 for the relevant principles.
In Prior v Mole at [4], Kiefel & Bell JJ said (omitting footnotes):
“The principles governing the exercise of a power that is conditioned on the existence of reasonable grounds for belief are not in question. The lawful exercise of the power conferred by s 128(1) required that Constable Blansjaar in fact hold each of the beliefs referred to in sub-s (1)(a) and (b) and one or more of the beliefs referred to in sub-s (1)(c) and that the facts and circumstances known to Constable Blansjaar constituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. This is not to say that it requires proof on the civil standard of the existence of that matter. Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture.”
“First, the member must have an actual subjective belief in the existence of each of the specified matters. Belief is more than “suspicion”; it is not merely an “apprehension” or even a “fear”; it is an actual “inclination of the mind”. Second, the subjective belief of the member must be a belief that is formed by the member by reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the member in forming the belief. That is not to say that those circumstances might not include information provided to the member by someone else. Nor is it to say that the formation of the belief by reference to those circumstances might not involve an element of surmise or conjecture on the part of the member. Third, the objective circumstances by reference to which the belief is formed must be such as can be determined by a court to be “sufficient to induce that state of mind in a reasonable person”. Even if the formation of the belief might involve an element of surmise or conjecture on the part of the member, the sufficiency of the objective circumstances to induce that belief in a reasonable person must be capable of appearing to the satisfaction of a court.”
“Granted, the test of reasonable grounds for a belief is objective. But, depending on the circumstances, belief may leave “something to surmise or conjecture”. And, as was stated in George v Rockett, while the objective circumstances necessary to found reasonable grounds to believe must point sufficiently to the subject matter of that belief, they need not be established on the balance of probabilities.”
“98. When a statute prescribes that there must be “reasonable grounds” for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.
99. In explaining the connection between the “reasonable grounds” and the requisite “belief”, this Court in George v Rockett stated:
“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.”
100. Belief is not certainty. “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.”
“It has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence (George v Rockett (1990) 170 CLR 104 at 115; [1990] HCA 26). If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference.”
Summarising the issue by reference to the facts of the case, their Honours said (at [19]), “the first issue in the present case in relation to the time of arrest was whether Sergeant Pietruszka held a suspicion that the appellant had committed a sexual assault on the victim and whether he had reasonable grounds to hold the suspicion”.
In Emde v State of New South Wales [2025] NSWCA 41, in refusing leave to appeal, McHugh JA (Gleeson & Kirk JJA agreeing) said the following about s 99(1)(a) of LEPRA, at [65]-[66]:
“65. As to questions of principle, suspicion on reasonable grounds is a familiar concept. It has a long history in the context of powers to arrest and to issue warrants. Thus it was said in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112:
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson [[1942] AC 206]”.
66. The Court went on to explain at 115 that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.” The Court referred to Kitto J’s statement in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303: “A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.””
The suspicion that Constable Fletcher announced he had immediately before undertaking the search was that he believed that Mr Fuller may be in possession of prohibited drugs.
The question required to be addressed by s 21(1) of LEPRA then is: Did Constable Fletcher suspect on reasonable grounds that Mr Fuller had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited drug?
That question can in turn be broken down into the following questions:
Did Constable Fletcher in fact suspect that Mr Fuller had in his possession or under his control a prohibited drug at the time he required him to submit to a search?
If so, did he suspect on reasonable grounds that Mr Fuller had a prohibited drug in his possession or control?
Constable Fletcher gave oral evidence at the hearing and was cross-examined about the grounds for suspicion he had in his mind at the time. I will come to his evidence about that in due course.
In closing written submissions the defendant identified the following grounds, said to arise out of Constable Fletcher’s evidence:
(a) Mr Fuller and Mr Jacobsen’s attendance in a part of Redfern which Constable Fletcher knew to be a hotspot for drug activity, in circumstances where the men did not look like they were from the area; (b) the time at night Mr Fuller and Mr Jacobsen were in the area, given that it is a dangerous area at that time; (c) that Mr Fuller was observed by Constable Fletcher entering Unit 1107, which Constable Fletcher understood to be “running hot”, and was there for only a short period of time, which was consistent with Constable Fletcher’s experience of people purchasing drugs; (d) that Mr Fuller was from a location some distance from Redfern, which raised the question of why he was so far from home; and (e) Mr Fuller’s “deceitfulness” in his responses to Constable Fletcher, and that he did not disclose that he had in fact come from number 43 Morehead Street, which suggested to Constable Fletcher that Mr Fuller was attempting to obscure his “actual plans” which were to buy drugs.
Constable Fletcher gave evidence about his duties whilst stationed at Redfern in the 3 years leading up to 13 January 2024 and his experience with Morehead Street, Redfern in particular. None of this evidence was challenged in cross-examination, and I accept it.
Constable Fletcher had been stationed at Redfern police station for 3 years prior to 13 January 2024. He spent the first 2 years in general duties and the 3rd year in the proactive crime team. General duties and the duties of the proactive crime team are different. In general duties, the job entails reacting to emergencies and calls for police and lesser duties such as missing persons or missing property et cetera. By contrast, members of the proactive crime team are proactive in their approach to offences (primarily drug-related activity, property-related crime and antisocial behaviour) in the sense that they will have prior knowledge to offending or have a bead on some things and will proactively attempt to stop those offences before they are committed.
Throughout the time that Constable Fletcher was in the proactive crime team, he worked together with Senior Constable Feneley, who had already been in the team for some time. They worked almost every shift together.
On a usual day they would spend the first 2 hours or so of a shift in the station undertaking various activities. Constable Fletcher and Senior Constable Feneley would then commence patrols of the area, patrolling hotspots. Primarily they would patrol the Redfern suburb localised in Morehead Street and Walker Street, being their two main streets, then in Waterloo, in Raglan Street and George Street. Constable Fletcher said that they would go to Morehead Street in Redfern due to its high activity of drug-related offences and property-related offences from either their own experiences, recent intelligence or the station summary enquiry depicting that it had a spike in those offences, but mainly because of the large “analytical” and crime of the area of that place.
Constable Fletcher said that they would attend Morehead Street every shift. He estimated that on a cumulative basis over one shift they would probably be in attendance at Morehead Street for between 2 and 3 hours or above. This involved conducting say half-hour patrols and vacating the area, then coming back for another half an hour, with the total time adding up to over 3 hours he would say every shift.
Constable Fletcher explained that the buildings at numbers 43, 55 and 57 Morehead Street are colloquially known locally as the Three Sisters. He described them as very large housing development buildings, which housed lots of people seeking government housing, but that also attracted a lot of undesirable activity in those locations, which is quite significant and frequent for police to attend. In referring to “undesirable activity” he explained that he was referring to drug activity, property-related crime, and further offences being a large amount of domestic offences that “GDs” (which I take to mean general duties officers) would usually attend.
Constable Fletcher explained that when on duty around the three buildings he and the other proactive crime team officers would know specific levels of certain drug activity, certain people who are very familiar with property-related crime, and they would definitely know the locals of the location on a first name and last name basis, and the locals would get to know them as well.
He explained that the main demographic of the Redfern and Waterloo area where he worked was made up largely of Aboriginal people who were very tight-knit with each other. He described it as a low socio-economic status area where most people looked a little bit dishevelled, with poor hygiene and grooming standards.
According to Constable Fletcher’s observation he would say 43 Morehead Street was the worst of the 3 buildings, followed by number 55 being less worse and then number 57 being the least worst in terms of how dilapidated the buildings were, the environment of the building and the residents of the building and their activities in relation to offences, being drug and property offences.
According to Constable Fletcher there are two entrances to number 43 Morehead Street – one being in a cul-de-sac on Morehead Street, and the other being off Young Street.
Constable Fletcher and Senior Constable Feneley would usually wear plain clothes, unless it was for an operation, being a protest or a drug dog operation, where they had to wear full uniform.
Constable Fletcher, Senior Constable Feneley, Mr Fuller and Mr Jacobsen each gave oral evidence at the hearing and were cross-examined.
They each gave slightly different accounts of what happened in the lead up to the search.
Constable Fletcher said that he believed that he and Senior Constable Feneley were on an afternoon shift, starting at 3 pm and ending at 1am the following morning. He said they were wearing plain clothes and were using an unmarked car.
Constable Fletcher said that he and Senior Constable Feneley first saw Mr Fuller and Mr Jacobsen in Young Street (which runs parallel to Morehead Street, behind the buildings at numbers 43, 55 and 57 Morehead Street). At that time he and Senior Constable Feneley were travelling southbound on Young Street and Mr Fuller and Mr Jacobsen were riding electric Lime bikes travelling north. He said that they kept watching them, observing them. Constable Fletcher watched them turn into 43 Morehead Street on their bikes. He saw them do this by going into the driveway and crossing the threshold of the premises in Young Street, but he did not see them go into the building. He and Senior Constable Feneley then drove up Redfern Street and into Morehead Street where they parked out the front of 43 Morehead Street. According to Constable Fletcher, they pulled up outside 43 Morehead Street at approximately 9 pm. He said it was definitely dark. He and Senior Constable Feneley then went into number 43 and spoke to the security guard who granted them access to the security room where they “canvassed the CCTV footage”. As they did this they observed Mr Fuller and Mr Jacobsen come into the building (at number 43 Morehead Street), speak to security, go into the elevator and press number 11, proceed up in the elevator, exit the elevator, turn left and then enter unit 1107. Constable Fletcher said he and Senior Constable Feneley “observed the males enter the unit upon the CCTV screen”. He and Senior Constable Feneley then had a discussion during which they discussed the suspected drug activity of the unit based on Senior Constable Feneley’s previous experiences, “to which he stated that he suspected that the unit was ‘running hot’, colloquially spoken”. When asked if they were the exact words he used, Constable Fletcher said that they were words to the effect of the ones Senior Constable Feneley used. Constable Fletcher said that he understood the phrase “running hot” to be a high level suspicion that the proactive crime team held upon certain units and people, being that “we” had a high level of suspicion of drug activity based on the high volume of people attending the unit, the duration in which the people attended the unit, being in particular short duration, are coming and going, and the cohort of people attending, being the nationality of the people, the socio-economic status of the people, and the age of the people coming and going, being a large variety.
After viewing the CCTV footage and having their discussion, Constable Fletcher said that he and Senior Constable Feneley left the building and remained on the premises within the threshold of the fence line.
From there, they saw Mr Fuller and Mr Jacobsen leave the building, walk up the steep driveway, leave the premises at 43 Morehead and approach their bikes.
In his evidence in chief, Constable Fletcher was asked to estimate the time between when the men entered the building of number 43 and when they departed it. His answer was that “When we observed them to enter the building I would say it would be no more than 10 minutes, 10 to 20 minutes. Definitely 10 being the minimum and definitely no more than 20 minutes.”. In cross-examination, Constable Fletcher accepted that it was a possibility that Mr Fuller and Mr Jacobsen were on level 11 for longer than 20 minutes, however he believed they were there from 10 minutes to 20 minutes. He did not agree that he saw Mr Fuller and Mr Jacobsen enter 43 Morehead Street probably around 8:40 or 8:45 pm.
Constable Fletcher and Senior Constable Feneley then approached Mr Fuller and Mr Jacobsen. As he did so, Constable Fletcher activated his police-issued body worn video camera which was attached to the beltline of his clothing. Constable Fletcher’s interaction with Mr Fuller after this was recorded on video. As I mentioned earlier, the recording started at 21:16:37.
The parties provided the court with an agreed transcript of what Constable Fletcher and Mr Fuller said as recorded on the video. In what follows I have also added in square brackets and italics some things that can be seen from the video. What each said leading up to Constable Fletcher’s announcement that he was going to undertake a search was as follows:
| Constable Fletcher: | Hey, fellas. How ya going? | | Mr Fuller: | Good, thank you. How are you? | | Constable Fletcher: | Good, thanks. Just Constable Fletcher from Redfern Police Station. Just letting you know that body worn video camera is activated, recording your conversation and actions. What’s going on tonight? | | Mr Fuller: | I just went and saw a mate over in number 55. | | Constable Fletcher: | 55? | | Mr Fuller: | Yeah. | | Constable Fletcher: | Okay, right. What’s going on? Who was your mate? | | Mr Fuller: | Tom | | Constable Fletcher: | Tom? | | Mr Fuller: | Tom Oates. | | Constable Fletcher: | Tom Oates. Okay. No worries. | | Mr Fuller: | Went and saw him. Was there for about 3 hours. Had a few drinks. | | Constable Fletcher: | 3 hours? Yeah, right. Yeah that’s all right. Not too bad. | | Mr Fuller: | And now just going to go straight back up to Oxford Street to drop these bikes off. | | Constable Fletcher: | Oh, sweet. Too easy. No worries. | | Mr Fuller: | Yeah. | | Constable Fletcher: | You boys from around the area or somewhere else? | | Mr Fuller: | No, Carramar. | | Constable Fletcher: | Carramar? Yeah, sweet. Youse known to the police at all? | | Mr Fuller: | No, not for anything bad. | | Constable Fletcher: | Okay, no worries. You mind if we just do some checks on you? | | Mr Fuller: | Yeah. Sure, buddy. There you go. [The video shows that at this stage Mr Fuller handed his ID to Constable Fletcher.] | | Constable Fletcher: | Sweet. Thank you. | | Mr Fuller: | You’re welcome. | | | [The video shows that there was then a pause in the conversation between Constable Fletcher and Mr Fuller.] | | Constable Fletcher: | No worries. How long have you known Tom for? | | Mr Fuller: | Oh, God. 3 years. | | Constable Fletcher: | 3 years? Yeah. | | Mr Fuller: | Yeah. | | Constable Fletcher: | Has he always lived here? Or has he lived – | | Mr Fuller: | No. No, he was only just recently placed here. Probably about 6 months ago. | | Constable Fletcher: | Okay, right. He’s over at 55? | | Mr Fuller: | Yeah, down on 55. [The video shows that as Mr Fuller said this he pointed to the right with his arm.] | | Constable Fletcher: | What level is he on there? | | Mr Fuller: | 9. Yes, 9. | | Constable Fletcher: | 9? | | Mr Fuller: | Yeah. | | Constable Fletcher: | There’s always good views from these housing buildings. For some reason, they got the best views in Sydney. | | Mr Fuller: | They’ve got a nice view, but what you have to go through to get there. | | Constable Fletcher: | Yeah, 100% yeah. Not really good. | | Mr Fuller: | I really hate coming here. But, you know, it’s not as bad as it used to be so. | | Constable Fletcher: | Yeah, 100%, 100%. | | Mr Fuller: | I used to work for Housing so. | | Constable Fletcher: | You do? Ah sweet, sweet. [The video shows that as Constable Fletcher said this he gave Mr Fuller what appeared to be his driver’s licence.] | | Mr Fuller: | Yeah. Cheers mate. |
In the above table, the last 2 entries are slightly different to the agreed transcript provided by the parties, but in my view represent more accurately what can be seen and heard on the video.
| Constable Fletcher: | As previously stated, my name is Constable Fletcher. Body worn video cameras activated. Recording our conversation, your actions. That's my ID. I'm going to submit you to a search because I believe you may be in possession of prohibited drugs. Do you understand? | | Mr Fuller: | Sorry? | | Constable Fletcher: | I believe you may be in possession of prohibited drugs. | | Mr Fuller: | Oh, go for it, buddy. | | Constable Fletcher: | Yeah, no worries. | | Mr Fuller: | What's the reason? | | Constable Fletcher: | Because I believe you may be in possession of prohibited drugs. Are you asking my reasoning for believing that? | | Mr Fuller: | Yeah. | | Constable Fletcher: | Because- | | Mr Fuller: | Just out of... Or is it the area? | | Constable Fletcher: | Well, it's the area. You don't really have anything really against your name, I'm going to be honest. But we know you haven't been to 55. We know you've been to another location. We know you haven't been 55. | | Mr Fuller: | I have been to 55. | | Constable Fletcher: | Well you haven't been in the last 20 minutes. | | Mr Fuller: | No, I was in this one. [The video shows that as Mr Fuller said this he pointed across the road to No. 43. Mr Fuller accepted this in cross-examination.] | | Constable Fletcher: | Yes, you’re correct. | | Mr Fuller: | On level 11. | | Constable Fletcher: | Yeah. Just turn and come over here for us, man? | | Mr Fuller: | Yeah. | | Constable Fletcher: | Just put your hands on the bar for us. You got anything in your pockets? Any sharps or anything like that? No, take your hands out of your pockets. |
The video continues whilst Constable Fletcher undertakes the search.
Constable Fletcher’s evidence in chief about his reasons for, or grounds for, submitting Mr Fuller to a search was as follows.
He said:
“After I conducted my checks, so I spoke to him and he provided me a version of his activities and the CNI check was conducted, I held the opinion that Mr Fuller would be in possession of prohibited drugs due to his attendance to the larger Redfern area, being its high numerical value of drug activity and property crime, the time in which he attended the Redfern area, being 9 o'clock, after dark, the specific location he attended, being level 1107 of 43 Morehead Street, his personal address being outside of the central metropolitan area - I can't recall the name, but it did not - was not familiar with me when he stated it - and his deceitfulness in his conversation we had relating, that he stated he was at 55 Morehead Street seeing a, I believe it was Mr Tom Oates of level 9-0 et cetera, for a period of three hours, when in fact we had seen him on the CCTV ten minutes, 20 minutes prior, and his deceitfulness in relation to that.”
“His attendance to the greater Redfern area, being that in my opinion, he did not - or he stood out from my observations, being that he was a well-groomed male, his attire was quite well-fitted, his behaviour, he wasn't acting out of character, the fact that he was, did not - he stood out from the local populous. That was my first observation for him, being in the Redfern area, being that it is a low socioeconomic location, there is a lot of drug activity, property-related crime, and people of the local populous are not dressed as well as he was at the time.”
“Himself being at the location at 9 o'clock at night after dark. It is well quite known to I would say most people of the Sydney metropolitan area that Redfern is a violent location. A large amount of robberies, stealings, and theft happen in the location, especially after dark when you're in attendance.”
“The specific location being 47 - sorry, 43 Morehead, correction - 1107, being that unit that had high suspicions by myself and Constable Feneley.”
“This stated to me that he was not from the area. He - I understand that 43 Morehead is government housing. Beyond that is residential properties owned by the locals in that location. He stated that he was from outside the area which raised questions as to what he was doing in the location to begin with, whether he was seeing a person or, like, why he was so far from home in relation to that.”
“His deceitfulness being stating that he was at - during our conversation, he stated that he was at 55 Morehead Street, being the one over from it, for three hours, seeing a Mr Tom Oates. In our conversation, I asked him, "Who were you there to see?" He said, "Tom," and quite further, which he related, in my opinion, he conjured up on the fly, stating he'd been there for three hours seeing Mr Oates at level 9, when in fact we had seen him just prior riding his bike and attending 43 Morehead Street on the cameras before leaving.”
“That essentially to me was that he was trying to cover up some sort of ulterior motive or have an alibi to what his actual plans were, which I believe was attending 1107 to purchase prohibited drugs.”
In cross-examination:
Constable Fletcher said that he did not speak to the security guard apart from about gaining entry to the security room to look at the CCTV footage.
He said that he went into number 43 Morehead Street shortly after watching Mr Fuller and Mr Jacobson enter. He agreed that he entered the foyer area after they had gone up in the lift.
He denied a number of times that he looked at the sign-in book.
He denied that he made up his evidence that he had watched the CCTV footage and saw Mr Fuller and Mr Jacobson go into unit 1107.
He denied that he knew from looking at the sign-in book that they had gone to unit 1106.
He agreed that 8:48 pm was “around approximately” the time he observed Mr Fuller and Mr Jacobson go into 43 Morehead Street.
He agreed that he carried out a location enquiry at 8.48 pm on his Police issued mobile (MobiPol) device about unit 1106. He agreed that his enquiry about that location was followed in quick succession by a number of further enquiries some, but not all, of which he conducted as a result of conducting that location enquiry.
He said that his evidence was not that unit 1107 had been running hot on this occasion, but that it had been running hot in general.
He said that before 13 January 2024 he was not aware that unit 1107 was running hot. He said Senior Constable Feneley informed him of his interactions with the unit and his observations, which he then took on board. But before that, he was not aware of any persons living in the unit itself and before 13 January 2024 he was not aware that the particular unit was running hot. He agreed that he learned that from his discussion with Senior Constable Feneley on 13 January 2024.
He denied that he had decided that he was going to stop and search Mr Fuller before he approached him.
He denied that he did not see Mr Fuller and Mr Jacobsen ride their Lime bikes to 43 Morehead Street. He confirmed that he saw them on Young Street.
Senior Constable Feneley said that he and Constable Fletcher first saw Mr Fuller and Mr Jacobsen at about 9 pm when they observed them entering the building at 43 Morehead Street. At this time he and Constable Fletcher were in their unmarked car at the top of the driveway into 43 Morehead Street. Senior Constable Feneley said he saw Mr Fuller and Mr Jacobsen enter the front entry of 43 Morehead Street from the Morehead Street side, go into the elevator lobby and go up in the elevator. He said that he and Constable Fletcher then went in through the same doors at 43 Morehead Street and went to security. When asked in evidence in chief what then happened, he said “So I'm not 100% sure if we viewed CCTV footage and viewed the two males going into unit 1107 or whether we physically saw them go into 1107, but we saw them go into 1107. Yes. The unit 1107.” Senior Constable Feneley said he then conducted checks on the tenant of unit 1107 on his MobiPol device. An Audit Report for his device shows that he conducted those checks at 20:56 and 20:57, that is at 8.56 and 8.57 pm. He knew the tenant of unit 1107 through his previous experience over the years he had worked at Redfern. He had interactions with the tenant regarding prohibited drugs. When he conducted the check on the tenant a warning came up which stated that he was involved in the supply of prohibited drugs. Senior Constable Feneley says that he conveyed this information to Constable Fletcher. After their discussion, he and Constable Fletcher waited a short while in their car to see if Mr Fuller and Mr Jacobsen would come out after a short period. Senior Constable Feneley thought that he and Constable Fletcher waited 5 minutes or so and then continued patrolling in the vicinity of 43 Morehead Street in their car in case they came out. Senior Constable Feneley said that after about 15 minutes or so, he and Constable Fletcher were in their unmarked car when they saw Mr Fuller and Mr Jacobsen at the top of the driveway of 43 Morehead Street. They then got out of their car and approached Mr Fuller and Mr Jacobsen.
Towards the end of the shift, Senior Constable Feneley created a COPS event record for both his search of Mr Jacobsen and Constable Fletcher’s search of Mr Fuller. COPS is the Computerised Operational Policing System. I will refer to some of the details on that record later. Senior Constable Feneley said that he prepared the record and Constable Fletcher did not have any involvement in doing that. Constable Fletcher gave evidence to the same effect.
Mr Fuller’s evidence in chief was as follows. Mr Fuller said that he and Mr Jacobsen arrived at Morehead Street on the Lime bikes at roughly 6:50 pm. They were on their way to visit his friend Tom Oates at 57 Morehead Street. Mr Fuller said that he had received a text message from Mr Oates earlier and Mr Oates had given him the address. When they arrived in Morehead Street, instead of going to number 57, Mr Fuller said they “rocked up” at number 43 at the other end of the complex. Mr Fuller says that he pulled out his phone and called Tom who directed them to the other end of the complex, which was building 57. Mr Fuller said he and Mr Jacobsen left their bikes at number 43 and walked to number 57. When they went to number 57, they passed the security, walked in and signed the visitor log book after showing their ID to the concierge. They went to Mr Oates’ unit on level 9 and stayed there till around 8:30 pm. He said they were there for roughly an hour and a half. Whilst he was there, Mr Fuller said that he had a few drinks and played some Xbox. Mr Fuller said that after leaving Mr Oates’ unit he and Mr Jacobsen walked over to number 43 Morehead Street. He said that he did that because he received a text message from his mate Cam, short for Cameron, who lived at Carramar but happened to be at number 43 at his partner’s address. Mr Fuller said that Cam asked for some cigarettes, so he and Mr Jacobsen went down to number 43 to just give him some smokes and go have a smoke with him on the balcony. Mr Fuller described the process of getting into number 43 as follows: “buzzed the security who let me through the main door, then he sighted my ID, signed the log book, put in the name of the person who’s - the residence is under so in this case it was Blair because it was his place and then put down the address of the unit and then wait for whoever to come down like came down and then we got let through”. He said the address of the unit number he put down in the book was 1106. He and Mr Jacobsen then went up to level 11 in the lift and went inside unit 1106. The only other person inside the unit was Cam. Mr Fuller said that they basically just went straight to the balcony and just lit up some cigarettes. He said he spent about 15 minutes on the balcony. Otherwise whilst he was in the unit he grabbed a glass of water, sat down and played with the 3 new kittens belonging to Cam’s partner. When asked “How long were you inside unit 1106 for?”, Mr Fuller said “Maximum 20 minutes”. After that he and Mr Jacobsen went downstairs and went to their bikes, which were directly opposite number 43 Morehead Street. It was then that they were approached by Constable Fletcher and Senior Constable Feneley.
Shortly after the cross-examination of Mr Fuller commenced, it was interrupted whilst Mr Fuller’s counsel was permitted to ask some further questions in chief. At this time Mr Fuller was shown two pages of text messages said to be between himself and Cam. The text messages were marked for identification and ultimately the messages sent by Mr Fuller to Cam (which were identified by white writing on a blue background) were admitted into evidence as Exhibit 6. When giving his evidence in chief at this stage, Mr Fuller said that he got to Cam’s “at 8.35 ish”.
In cross-examination Mr Fuller said the total time he was on Level 11 “Could have been” 25 minutes, “It was a short visit.”.
In his evidence in chief Mr Jacobsen said that he and Mr Fuller rode to “57”. He could not remember the name of the street. He said when they got to Redfern they parked their bikes, went to Tom’s building and signed in at the concierge. He thinks that they were buzzed through and went up to Tom’s place where they hung out for a while – roughly 2, 3 hours. He could not say either roughly or exactly when they left Tom Oates’s place, but it was dark outside. He said they went to visit Cam who was at his partner’s place a few blocks up because Cam had sent a message to Mr Fuller about visiting. He said that the procedure to get into Cam’s building was the exact same as to get into Tom’s building. He said there was a security door that you get let through when you buzz, and then once you go through, there is a concierge security behind the glass and a logbook. You sign into that logbook and put down your date, your name, who you’re there to see and what apartment. They then buzz you through another security door and you take the lifts. He remembered that the number of the unit he attended was 1106. He remembered meeting the kittens and all 3 going out onto the balcony where they had a couple of cigarettes, and then he and Mr Fuller left. He said “we weren’t there very long at all”. He said they entered through the front of the building on Morehead Street.
In cross-examination, Mr Jacobsen confirmed that he was only at 43 Morehead Street “for a short period of time”. He described how he got from number 57 Morehead Street to number 43 as follows: “… when we left Tom's we came down to the bottom of the building and we left through the back exit for some reason and went to the, opposite, like the back sort of the building, the back street, walked up to 43 up the back driveway and then - so there's like, kind of a like a, a rear driveway and a little car park, then the building, and then it has like a, like a space, a laneway kind of thing that goes to the side of the building and then in front of it is there. And that's the front of the building. So we kind of walked around the side of the building and to the front, so, if that makes sense.”. He said they entered through the front of the building on Morehead Street.
Mr Jacobsen said that he and Mr Fuller had been to visit Tom Oates at his place in Morehead Street together a number of times before - maybe a handful of times, 5 or less; 3, 5.
I have mentioned that Constable Fletcher’s bodycam video recording commences at 21:16:27.
There was in evidence a printed copy of an “Audit Report” of the activity on Constable Fletcher’s MobiPol device from 20.30 to 22.00. It showed that:
At 21:48 Constable Fletcher carried out a “Location Enquiry” for “1106, 43 Morehead St”.
At 20:49 Constable Fletcher carried out a number of further enquiries (party enquiries, RTA enquiries and a legal process enquiry).
At 20:50 Constable Fletcher carried out an RTA enquiry in respect of a person by the name of Cowen.
At 21:18 Constable Fletcher carried out his first enquiry that expressly related to Mr Fuller - an RTA enquiry.
In his oral evidence:
In examination-in-chief, Constable Fletcher said he could not recall what his location enquiry at 21:48 for “1106, 43 Morehead St” was about. In cross-examination, he said he thought it was unrelated to Mr Fuller’s matter based on the audit report. He did not accept that he had seen the sign-in register and saw that Mr Fuller and his companion had signed in to visit the person at 1106, 43 Morehead Street.
In cross-examination, Constable Fletcher accepted that the enquiries he carried out at 21:49 led on from his enquiry at 21:48 about 1106, 43 Morehead Street.
In cross-examination, Constable Fletcher did not agree that he made the enquiry at 20:50 in respect of a person by the name of Cowen as a result of carrying out the initial location enquiry for 1106, 43 Morehead Street.
The printed copy of the “Audit Report” for Senior Constable Feneley’s MobiPol device from 20:55 to 21:20 showed that:
At 20:56 Senior Constable Feneley made a number of enquiries (party enquiries, and RTA enquiry and a legal process enquiry) about the tenant of 1107, 43 Morehead Street, and another at 20:57.
There was then no activity recorded for Senior Constable Feneley’s MobiPol until 20:15, when Senior Constable Feneley made a number of RTA enquiries that appear to be unrelated to the plaintiff’s case.
At 20:17 Senior Constable Feneley made a number of enquiries (party enquiries and a legal process enquiry) about Tom Oates.
At 20:18 Senior Constable Feneley made a number of enquiries about Mr Jacobsen.
Towards the end of their shift, Senior Constable Feneley created a COPS Event record for his search of Mr Jacobsen and Constable Fletcher’s search of Mr Fuller. The description of what happened was created at 00:30 on 14 January 2024.
Allowing for the abbreviations and acronyms used in the document, Senior Constable Feneley recorded that:
“At 9.15 pm on 13 January 2024, Police sighted Mr Jacobsen and Mr Fuller enter 43 Morehead Street, Redfern and attend unit 1107. Police are aware that the tenant is associated with drug related activity. Mr Jacobsen and Mr Fuller later exited and Police introduced themselves before speaking with them. Mr Jacobsen and Mr Fuller appeared to be very sweaty. Mr Jacobsen and Mr Fuller stated that they had been to see a friend at 55 Morehead Street and had not attended 43 Morehead Street. Police conducted checks on the friend they stated they were seeing which revealed associations with drug related activity including supply. Checks on Mr Jacobsen revealed an extensive drug related history.
Police suspected that Mr Jacobsen and Mr Fuller were in possession of prohibited drugs. Police informed Mr Jacobsen and Mr Fuller of their suspicions and intention to search them. Police searched Mr Jacobsen and Mr Fuller with nothing adverse located. …”
Constable Fletcher announced twice at the time that he believed Mr Fuller may be in possession of prohibited drugs. His statements about this were captured on his body worn video camera. I set out earlier precisely what he said. This evidence is contemporaneous to the event and is consistent with his oral evidence.
In the COPS event record created by Senior Constable Feneley about 3 hours later it was recorded that the reason for the search was “suspected possession of illegal drug”. In this record Senior Constable Feneley incorrectly recorded that he himself carried out the search. Nevertheless the two officers were working closely together before and after the search and the COPS event is another contemporaneous record of the reason for the search.
In his oral evidence:
In his evidence-in-chief Constable Fletcher gave evidence that the moment before he told Mr Fuller he would submit him to a search he “held the opinion that Mr Fuller would be in possession of prohibited drugs”.
In cross-examination, Constable Fletcher disagreed with the proposition that when he announced that he was searching the plaintiff he did not actually hold the suspicion that he was in possession of prohibited drugs.
He also disagreed with the proposition that at that particular moment he thought it was “a possibility and no more”.
In closing oral submissions, counsel for Mr Fuller said that in relation to whether Constable Fletcher subjectively held the suspicion, the plaintiff was not submitting that Constable Fletcher was dishonest. Counsel submitted that on the basis that Constable Fletcher considered only “the possibility” that the plaintiff was in the possession of a prohibited drug, as opposed to reaching a positive state of mind that he was in possession of a prohibited drug, his state of satisfaction was formed “capriciously”. Ultimately, counsel for Mr Fuller submitted that it would seem that the court was able to find that the suspicion was honestly held and counsel did not push “too heavily” the submission about acting capriciously.
In circumstances where the question is subjective, the concession that the plaintiff was not submitting that Constable Fletcher was dishonest is significant.
In my view, in light of the general legal principles I set out earlier, a question of whether Constable Fuller was acting “capriciously” does not arise under s 21(1) of LEPRA. Such a question may arise under s 99(2)(b) of LEPRA: State of New South Wales v Dennis [2025] NSWCA 118 at [59] per Kirk JA (Mitchelmore JA agreeing).
Having regard to all of those matters I accept Constable Fletcher’s evidence on this question.
For those reasons, I am satisfied that Constable Fletcher did in fact suspect that Mr Fuller had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited drug before requiring Mr Fuller to submit to the search.
I have already set out the grounds, said to arise out of Constable Fletcher’s evidence, identified by the defendant in written closing submissions (paragraph 27(a) – 27(e) above) and Constable Fletcher’s evidence-in-chief about those grounds (paragraph 51 above).
It is first necessary to resolve any controversies between the parties about what Constable Fletcher’s grounds for suspicion in fact were. I will do that by reference to grounds (a) to (e) identified in the defendant’s written closing submissions. I will then consider whether they provided objectively reasonable grounds for his suspicion.
I will start with the most controversial ground. In the defendant’s closing written submissions this ground was said to be “(c) that Mr Fuller was observed by Constable Fletcher entering Unit 1107, which Constable Fletcher understood to be “running hot”, and was there for only a short period of time, which was consistent with Constable Fletcher’s experience of people purchasing drugs”.
Two aspects of this ground were said to be controversial. The first concerned a question of whether Mr Fuller went into Unit 1107 at all. Both he and Mr Jacobsen gave evidence that they went into Unit 1106, not Unit 1107. The second concerned the length of time Mr Fuller and Mr Jacobsen were inside the building.
The plaintiff submitted that the court should find as a matter of fact that Constable Fletcher and Senior Constable Feneley did not observe the plaintiff and Mr Jacobsen enter unit 1107, and that consistently with the evidence of the plaintiff and Mr Jacobsen, they only entered unit 1106. The plaintiff submitted that the evidence of the plaintiff and Mr Jacobsen should be accepted about them going into unit 1106. If that evidence is accepted, then, it was submitted, the court must necessarily reject the evidence of Constable Fletcher and Senior Constable Feneley about seeing them go into unit 1107.
The plaintiff submitted in written submissions that if the plaintiff did not as a matter of fact go into unit 1107, then the officer’s mistaken belief, based on his direct observation of the event in CCTV footage, cannot form part of the grounds for the suspicion to be assessed. Counsel submitted that taking that approach would be consistent with State of New South Wales v Madden (2024) 113 NSWLR 509 and Reyes-Carrion v State of New South Wales [2025] NSWDC 28. Developing the point in oral closing submissions counsel submitted that if the court decided that Mr Fuller attended unit 1106, and not unit 1107, it must then leave out of the equation in terms of assessing whether the grounds are reasonable or not the alleged fact that the plaintiff and his partner attended unit 1107. The Court would still be left with the other grounds put forward by Constable Fletcher.
The plaintiff submitted that that if Constable Fletcher and Senior Constable Feneley did not observe the plaintiff and Mr Jacobsen go into unit 1107, then it cannot form a reasonable ground for suspicion.
The plaintiff submitted that you cannot possibly have relied upon something that you say you saw, but you in fact did not see.
The defendant submitted that Mr Fuller and Mr Jacobsen gave evidence that they attended unit 1106 and the 2 officers gave evidence that they entered unit 1107. The court does not need to determine the true state of affairs – it is Constable Fletcher’s state of mind that is relevant and the evidence is that the officers (both of them) believed that they observed the men enter unit 1107.
The defendant relied upon Azar v Director of Public Prosecutions [2014] NSWSC 132; 329 A Crim R 75 at [27] (Adamson J) and Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 517 at [14]-[19] (per McColl JA) and at [54]-[59] (per Basten JA). The defendant emphasised propositions (4) and (8) at [15] in the reasons of McColl JA. Her Honour said there:
“(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112; 251); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo (2001) 126 A Crim R 562 at [53](b) per Smart AJ (Spigelman CJ and Simpson J agreeing); Hussien v Chong Fook Kam (at 949); O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
…
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O’Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope.”
“It is important in this, as in other fields of legal discourse, to be careful not to judge the “reasonable grounds” issue with the benefit of hindsight. As I have earlier explained (see [15](8)), a reasonable belief may be based on information which turns out to be wrong. That much was accepted in the appellant’s case when the charges against him were withdrawn. However a court must be careful not to assess the question whether the arresting officer had reasonable grounds for his or her suspicion or belief prior to the arrest through the prism of ipso facto acquired knowledge.”
The defendant submitted that Constable Fletcher’s suspicion could be reasonably grounded on his observation of the men attending unit 1107 so long as the court was satisfied that Constable Fletcher believed he saw the men entered unit 1107, even if that observation proved incorrect.
The defendant also submitted that it is sufficient if the court finds that Constable Fletcher believed that he saw the men enter unit 1107 and that the other information available to him at the time did not make it clear to him that he was obviously wrong.
In my view, it is not necessary for the defendant to prove as a matter of fact that Mr Fuller went into unit 1107. That is because the facts and circumstances, or information, on which the suspicion was based do not need to be established on the balance of probabilities. The facts and circumstances known to the police officer can include, and often do include, things they have been told by someone else. The facts and circumstances known to the police officer can leave something to surmise or conjecture.
However, in this case Constable Fletcher’s evidence is that he saw Mr Fuller go into unit 1107. He gives evidence that this was one of the facts and circumstances he relied upon to form the suspicion that Mr Fuller had a prohibited drug in his possession or control.
In those circumstances, the question for the court is whether it accepts Constable Fletcher’s evidence on those matters. If the court accepts his evidence, then it must consider whether those matters provided “reasonable grounds” for suspicion. If the court does not accept his evidence, there is no need to proceed to the next question of whether they constituted “reasonable grounds” for his suspicion.
It follows that with the issue having been raised I must determine whether to accept Constable Fletcher’s evidence that he saw Mr Fuller go into unit 1107 and that this was one of the facts and circumstances he relied upon to form the suspicion that Mr Fuller had a prohibited drug in his possession or control.
I accept Constable Fletcher’s evidence on these matters for the following reasons:
Senior Constable Feneley also gave evidence that he saw Mr Fuller and Mr Jacobsen go into unit 1107. Whilst Senior Constable Feneley was not sure whether they saw that happen on CCTV footage or whether they physically saw them go into unit 1107, Senior Constable Feneley was confident both he and Constable Fletcher had seen the two men go into unit 1107.
Both Constable Fletcher’s and Senior Constable Feneley’s evidence is consistent with the contemporaneous COPS event record, prepared by Senior Constable Feneley, which states that they had “sighted Mr Jacobsen and Mr Fuller enter 43 Morehead Street, Redfern and attend unit 1107”.
Both Constable Fletcher’s and Senior Constable Feneley’s evidence is consistent with the fact that at 20:56 Senior Constable Feneley made a number of enquiries about the tenant of unit 1107 on his MobiPol device. There is no dispute that this occurred at a time when Mr Fuller and Mr Jacobsen were inside the building.
The plaintiff conceded in closing submissions that prior to stopping and searching Mr Fuller, Constable Fletcher knew that unit 1107 was linked to drug-related activity. On the evidence, Constable Fletcher’s knowledge about that could only have come from speaking to Senior Constable Feneley whilst Mr Fuller and Mr Jacobsen were inside the building.
It was recorded by Constable Fletcher on his body worn video camera that Mr Fuller told him on the night that he had been to level 11.
There was no objective evidence before the court that Mr Fuller and Mr Jacobsen signed the visitors’ book to visit unit 1106. A copy of the visitors’ book was not in evidence.
The white text messages on a blue background sent by Mr Fuller admitted into evidence as Exhibit 6 provided some objective evidence that he was going to “swing past” to see his friend Cam.
Counsel for the plaintiff submitted that the court should find that Constable Fletcher performed a location enquiry on his Mobi Pol device about unit 1106 at 20:48 because he had looked at the visitor sign in book and seen that the plaintiff had signed in as a visitor for unit 1106. Constable Fletcher denied this in cross-examination. He denied looking at the visitor sign in book at all. Constable Fletcher said he could not remember what his location enquiry was about. He said he thought it was unrelated to Mr Fuller’s matter based on the audit report.
In my view, in all the circumstances the evidence of Mr Fuller and Mr Jacobsen about where they went does not provide a sufficient basis to reject Constable Fletcher’s evidence about what he says he saw and what he says he took into account.
In written closing submissions counsel for the plaintiff submitted that the court should find that Constable Fletcher and Senior Constable Feneley saw the plaintiff and Mr Jacobsen enter 43 Morehead Street at least 30 minutes prior to their interaction at 9:16 pm. In oral closing submissions the plaintiff submitted that they were in the building for a period greater than 20 minutes and closer to 30 minutes.
I am not sure that much was made of the precise timing in the end.
In any event, Mr Fuller’s evidence was that it was a “Maximum 20 minutes”, “could have been 25 minutes”, “it was a short visit”.
Mr Jacobsen’s evidence was that “we weren’t there very long at all”, “for a short period of time”.
Senior Constable Fletcher’s evidence was that they were in the building “definitely 10 (minutes) being the minimum and definitely no more than 20 minutes”, although he accepted that it was a possibility that they were on level 11 for longer than 20 minutes.
Ground (c) in the defendant’s closing submissions about the grounds of suspicion identified part of the ground as Mr Fuller “was there for only a short period of time”.
However, Constable Fletcher does not appear to have identified that as a fact or circumstance he relied upon when giving his evidence.
In those circumstances I do not need to address the issue of timing any further.
In the defendant’s closing written submissions this ground was said to be “(a) Mr Fuller and Mr Jacobsen’s attendance in a part of Redfern which Constable Fletcher knew to be a hotspot for drug activity, in circumstances where the men did not look like they were from the area”.
Constable Fletcher’s evidence about this ground was not challenged. I have already referred to it.
In closing written submissions, the plaintiff conceded that the location 43 Morehead Street is well known for its association with crime, in particular drug-related activity. The plaintiff conceded that Morehead Street is a place where criminal activity occurs, but submitted that the court would accept that there are people living in the blocks of units that have no association with criminal activity.
This ground was said to be “the time at night he and Mr Jacobsen were in the area, given that it is a dangerous area at that time”.
Constable Fletcher’s evidence about this ground was unchallenged. I have already referred to it.
This ground was said to be “(d) that Mr Fuller was from a location some distance from Redfern, which raised the question of why he was so far from home”.
Once again, Constable Fletcher’s evidence about this ground was unchallenged and I have already referred to it.
The defendant gave particular emphasis to this ground. It was said to be “(e) Mr Fuller’s “deceitfulness” in his responses to Constable Fletcher, and that he did not disclose that he had in fact come from number 43 Morehead Street, which suggested to Constable Fletcher that Mr Fuller was attempting to obscure his “actual plans” which were to buy drugs”.
Counsel for the defendant submitted that this was one of the more important, if not the most important grounds and that it “tipped the scales”.
Counsel for the plaintiff submitted that the video camera footage I refer to below indicates that Constable Fletcher closed his mind off to an innocent explanation. Counsel also referred to Mr Fuller’s evidence in cross-examination that “I told the police where I'd been for the majority of my time in this area and within that complex. The fact that I went from one building to another just seemed irrelevant because I was not there for long enough, and that was not where I was for the majority of the night.”. Counsel also submitted that the plaintiff did not deny that he attended 43 Morehead Street.
It is not necessary that I make a finding about whether Mr Fuller was actually being deceitful. What is relevant is what Mr Fuller told Constable Fletcher and what Constable Fletcher made of that in the context.
I have already set out Constable Fletcher’s evidence about what he considered to be the plaintiff’s deceitfulness about where he had been as being a ground for his suspicion. That he would have considered it a significant factor is logical and consistent with ordinary human experience. That he actually considered it significant at the time is borne out by his bodycam video footage. The transcript of Constable Fletcher’s body worn video starts with Constable Fletcher asking "How ya going?". Mr Fuller answered, "Good, thank you. How are you?". Then Constable Fletcher identified himself and asked "What's going on tonight?". Mr Fuller responded, "I went and saw a mate over in number 55". Constable Fletcher asked "55?". Mr Fuller confirmed that, "Yeah.”. I note that Constable Fletcher had not asked Mr Fuller where he had been; his question had been "What's going on tonight?" – a fairly general inquiry. Mr Fuller volunteered that he had been seeing a mate over in number 55. When Mr Fuller did, Constable Fletcher asked him just to make sure, "55?". Mr Fuller replied "Yeah". In my view the next thing that Constable Fletcher said is quite illuminating. He said, "Okay. Right. What's going on? Who was your mate?". The responses Constable Fletcher received to his questions appear to have heightened any suspicion he had because he had seen Mr Fuller come out of number 43 and Mr Fuller was saying he had been at number 55. The language Constable Fletcher used indicates that it was not the answer he expected to get, because he had seen Mr Fuller come out of 43. Constable Fletcher then asked Mr Fuller who his mate was, following up on the information Mr Fuller had given already. Mr Fuller told him it was Tom Oates. Then Constable Fletcher did not ask Mr Fuller how long he had been there or what he had been doing with Mr Oates, but Mr Fuller volunteered that he had been there for about three hours, had a few drinks. Then Constable Fletcher commented, "Three hours. Yeah, right. Yeah, that's all right. Not too bad". Then Mr Fuller said, "And now just going to go straight back up to Oxford Street to drop these bikes off". In this exchange Mr Fuller was explaining what he had been doing for the last three hours and what he was planning to do in the immediate future. Having regard to the words used and seeing and hearing how they were said on the bodycam video footage, in my view, and I find, Constable Fletcher was reacting to the information he was being given about where Mr Fuller had been which Constable Fletcher knew to be false. For the last three hours Mr Fuller had not been at number 55. Constable Fletcher had seen him come out of number 43.
Notwithstanding that ground (c) included the circumstance that Mr Fuller “was there for only a short period of time”, as I have mentioned already, Constable Fletcher did not mention this as a circumstance or ground he relied upon when giving his evidence. For that reason I do not take it into account as providing a reasonable ground for Constable Fletcher’s suspicion.
As for the other grounds, I am satisfied that Constable Fletcher did take those grounds or facts and circumstances into account in forming his suspicion.
The plaintiff submitted that if the court was against the plaintiff on the issue as to whether Constable Fletcher in fact held the relevant suspicion, then the grounds for Constable Fletcher’s suspicion, separately or in combination with each other, were not reasonable (written submissions paragraph 47).
The plaintiff submitted (written submissions paragraph 48) that the ground based on where Mr Fuller told Constable Fletcher he had been “boiled down” to the conclusion that “Constable Fletcher had spoken with the plaintiff whose initial account was inconsistent with his observations of the plaintiff. However, the plaintiff did not deny that he attended 43 Morehead Street.”. The first sentence is accurate, however it does not reveal the full significance in context of what Constable Fletcher regarded as Mr Fuller’s “deceitfulness”. The second sentence is literally true, however Mr Fuller’s reference to attending 43 Morehead Street came after Constable Fletcher had announced that he was going to submit Mr Fuller to a search.
The plaintiff submitted (written submissions paragraph 51) that “It cannot be that a person’s attendance at a location known for criminal activity, who does not give a complete account of where they had been, constitutes reasonable grounds for the requisite suspicion. The situation would be different if the plaintiff had briefly attended unit 1107 before leaving the location.”
In oral closing submissions the plaintiff submitted that there was evidence that unit 1107 was associated with drug activity but if one looks at the intelligence reports in evidence concerning that location and its occupant, according to the documentary case presented by the defendant, unit 1107 was in fact not “running hot” as at January 2024.
In my view, the question is not whether as an objectively provable or underlying fact unit 1107 was “running hot”. The relevant question is what information Constable Fletcher had about unit 1107 and its occupant and what he made of it in forming his suspicion. The evidence reveals that Constable Fletcher had not seen the intelligence reports referred to by counsel for the plaintiff. He relied upon the information provided to him by Senior Constable Feneley.
The information Constable Fletcher had and took into account in forming his suspicion is revealed by the following:
I set out Constable Fletcher’s evidence in chief about the grounds earlier. He said one of his reasons was “the specific location he attended, being level 1107 of 43 Morehead Street”. When asked what he meant he said the unit “had high suspicions of myself and Constable Feneley”.
As I set out earlier, in his evidence in chief, Constable Fletcher gave evidence that he and Senior Constable Feneley had a discussion about the suspected drug activity of unit 1107 based on Senior Constable Feneley’s previous experiences, “to which he stated that he suspected that the unit was ‘running hot’, colloquially spoken”. When asked if they were the exact words he used, Constable Fletcher said that they were words to the effect of the ones Senior Constable Feneley used. Constable Fletcher said that he understood the phrase “running hot” to be a high level suspicion that the proactive crime team held upon certain units and people, being that “we” had a high level of suspicion of drug activity based on the high volume of people attending the unit, the duration in which the people attended the unit, being in particular short duration, are coming and going, and the cohort of people attending, being the nationality of the people, the socio-economic status of the people, and the age of the people coming and going, being a large variety.
In his cross-examination, as I set out earlier, he said that before 13 January 2024 he was not aware that unit 1107 was running hot. He said Senior Constable Feneley informed him of his interactions with the unit and his observations, which he then took on board. But before that, he was not aware of any persons living in the unit itself and before 13 January 2024 he was not aware that the particular unit was running hot. He agreed that he learned that from his discussion with Senior Constable Feneley on 13 January 2024. As the last sentence indicates, he was not challenged on his evidence.
As I said earlier, Senior Constable Feneley gave evidence that he conducted checks on the tenant of unit 1107 on his MobiPol device. He knew the tenant of unit 1107 through his previous experience over the years he had worked at Redfern. He had interactions with the tenant regarding prohibited drugs. When he conducted the check on the tenant a warning came up which stated that he was involved in the supply of prohibited drugs. Senior Constable Feneley said that he conveyed this information to Constable Fletcher.
As I have already mentioned, the plaintiff conceded elsewhere in submissions (written submissions paragraph 45(iii)) that prior to stopping and searching Mr Fuller, Constable Fletcher knew that unit 1107 was linked to drug-related activity.
Leaving aside the circumstance that Mr Fuller “was there for only a short period of time”, I am satisfied on all of the evidence that the grounds or facts and circumstances Constable Fletcher took into account in forming his suspicion provided reasonable grounds for his suspicion.
For those reasons:
I find that at the time he required Mr Fuller to submit to a search Constable Fletcher suspected on reasonable grounds that Mr Fuller had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited drug.
I find that the search was justified by s 21(1)(d) of Law Enforcement (Powers a**nd Responsibilities) Act 2002.
The defendant is entitled to have judgment entered in its favour.
Costs should follow the event.
I proceed to assess the quantum of damages in case I am wrong about liability.
Counsel for the plaintiff addressed damages in his written submissions.
The plaintiff submitted that the Court should allow:
The sum of $1,500 in general damages for false imprisonment (for the loss of liberty, dignity and reputation; for the initial shock at being detained; for interference with personal liberty).
The sum of $1,000 in general damages for battery (for the pat down search).
The sum of $100 for trespass to goods.
The sum of $1,000 for aggravated damages for false imprisonment (because the plaintiff did not like the pat down search and felt violated; because the interaction with Constable Fletcher made him feel anxiety; because he suffered embarrassment from being searched in a public place).
The sum of $2,500 for aggravated damages for the battery (presumably for the same or similar reasons as for the false imprisonment, but also for the added reason that Mr Fuller pulled out the front of his pants when asked to show his pant line).
The sum of $2,000 as exemplary damages for the false imprisonment.
The sum of $2,000 as exemplary damages for the battery.
The defendant submitted that any general damages should not exceed $1,000 for false imprisonment, and should not exceed $500 in total for assault, battery or trespass to goods. The defendant submitted that there was no warrant for awarding aggravated or exemplary damages.
My impression from watching the body camera video footage, which shows the entire interaction between Mr Fuller and Constable Fletcher, is that at all times Constable Fletcher was courteous and respectful, as was Mr Fuller. Neither of them came across as agitated or aggressive towards one another either physically or verbally. Both appeared to be calm and relatively relaxed. Having said that, I accept that Mr Fuller is likely to have suffered some anxiety and embarrassment.
I accept the defendant’s submission that it is not an appropriate case for either aggravated or exemplary damages.
It makes little sense to me to attempt to break general damages down into separate components given the small sums of money involved and that they arise out of the same transaction or events.
In all the circumstances I would have assessed the plaintiff’s damages at $2,000.
I make the following orders:
Judgment for the defendant.
Plaintiff to pay the defendant’s costs of the proceedings.
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Fuller
State of New South Wales [2025] NSWDC 350
(1990) 170 CLR 104
(2017) 261 CLR 265
(2024) 113 NSWLR 509
(1966) 115 CLR 266
(2017) 91 ALJR 441
(2006) 228 CLR 423