Harley v State of New South Wales

Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 34A

Cases Cited: Emde v State of New South Wales [2025] NSWCA 41
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Prior v Mole (2017) 261 CLR 265; [2017] HCA 10
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Reyes-Carrion v State of New South Wales [2025] NSWDC 28
State of New South Wales v Dennis [2025] NSWCA 118
State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

Category: Principal judgment

Parties: Melissa Harley (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
A Canceri (Plaintiff)
M Gollan (Defendant)
Solicitors:
Aussie Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2024/00291402

JUDGMENT

Introduction

1. At about 4:00pm on 5 June 2022, the plaintiff came to the attention of Police at Wolli Creek Railway Station when she was seen to jump over ticket barriers in an apparent act of fare evasion.

2. After she walked up the stairs of the station the plaintiff was approached by Senior Constable McCartney (the Senior Constable) who, it is accepted, lawfully stopped her and issued her with an infringement notice for travelling on a train without holding a ticket.

3. In the course of this interaction the Senior Constable conducted a search of the plaintiff’s handbag.

4. The plaintiff contends that the search and detention of her for that purpose were unlawful, entitling her to damages for trespass to goods and false imprisonment.

5. The issues for my consideration are:

6. Did the plaintiff consent to the search? If so, it is accepted her claim will fail.

7. If the plaintiff did not consent to the search, whether the search was lawful and, specifically, whether it complied with s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). If the search was lawful, again it is accepted the plaintiff’s claim will fail.

8. If the plaintiff succeeds, how I should assess damages and whether there is an entitlement to aggravated and exemplary damages.

The Factual Background

6. The plaintiff did not give evidence. Her case is grounded in documents provided under subpoena by the Commissioner of Police as well as footage caught by the Senior Constable’s body worn camera.

7. The Senior Constable gave evidence in the defendant’s case, which included the following:

8. The train network is increasingly being used to facilitate drug trafficking and drug use. This is because the use of trains is an effective way of avoiding detection compared to road transport where offenders are exposed to number plate recognition technology and the scrutiny of the Police Highway Patrol.

9. Wolli Creek is a major transport hub. The area between Wolli Creek and the next station, Arncliffe, is well known to Police as an area with a high level of drug activity. In particular, Eden Street, Arncliffe lies in that area and, according to the Senior Constable, is “a hot bed of drug activity, and everything associated with a hot bed of drugs”. There are a large number of drug users, addicts and sellers, as well as bikie involvement in the area, all of which consumes a considerable amount of Police time.

10. Travelling from Wolli Creek Railway Station to Eden Street would take one through these areas of high drug activity.

11. The plaintiff was seen by the Senior Constable and his partner to jump over the ticket barriers. She made her way up the stairs to street level at which point she was approached by the two Police officers.

12. The plaintiff was unable to produce evidence that she had paid the fare, leading the Senior Constable to charge her with an offence.

13. This entitled the Police to require the plaintiff to identify herself, which she did.

14. Having obtained details of the plaintiff’s identity, the Senior Constable then accessed a hand-held electronic device known as a “MOBIPOL”, which directly interfaces with the Police database and provides a full Criminal Name Index (CNI) history.

15. He described what he observed from the plaintiff’s CNI as follows:

“There was a fair bit of information on there. From that information the first thing that comes up are warnings. These are in red, designed to grab an officer’s attention, and to bring to their notice what it was. Her warnings were in relation to drugs. From there also too, it also has relevant intelligence reports that have been created from other Police officers, but also to Crime Stoppers. So if a member of the public actually wishes to converse with Police in regards to you, that will appear on your, your CNI record, including your charge history, previous charges, and the outcomes of such.

Full interaction in regards to every time you’ve interacted with the Police. It can be through a formal means of exercise of powers, or it could just be a conversation and some record keeping was kept up to date. Your traffic records and, and stuff like that are also on there as well. …

What I saw is there were several existing warnings. They were valid at the time in regards to drugs. I then scrolled through. We also do these checks to make sure that there’s no outstanding warrants. Other Police officers may wish to make contact with that person. We pass on the message. Or it could actually be up to a formal record of interview in regards to some other form of investigation, and we can do that for them right then and there. There were intelligence reports that also had – from police officers. The nature was drugs.

There was also surprisingly some Crime Stopper [reports] which means that a member of the public contacted police to have a conversation and actually knew the plaintiff. Usually we just don’t take any type of information and, you know, and pass it off. It does actually, ‘How do you know this person, how do you know their address, their date of birth? Okay’. It verifies the bona fides of the person that they’re talking about. Recent charges in regards to drugs and traffic as well, and on the police events list, there was also a formal interaction just two, two days prior to the, this interaction right here…

And that was primarily in regards to drugs, the same, my same business unit of the command group. It also included the use of a drug dog” (Tcpt 13.30-14.20).

9. He described the plaintiff as appearing “a little bit dishevelled”, like somebody “who would probably have, have had a bit of a hard life”.

10. He concluded that the information he had seen and the plaintiff’s appearance were consistent with someone who has a drug problem.

11. He also described the plaintiff as “a little bit glassy eyed, a little bloodshot, but not, not too bad. And her speech as well, a little bit slurry, but not what you would call seriously drug affected, or intoxicated, or anything like that” (Tcpt 14.36-14.39).

12. Based on his experience, he formed the view the plaintiff “was probably coming off some form of drug” (Tcpt 14.40-14.41).

13. Relating this back to the formal interaction the plaintiff had with Police two days before, he formed a suspicion, “you’ve, you’ve had some drugs, and you’re in the process of, of coming down as such” (Tcpt 14.44-14.45).

14. Later, in describing his escalating suspicions, the Senior Constable said:

“So the first profile is, it comes up straight away in red, are the warnings, and it’s nature of drugs, so we, we come up just a little bit, but not enough to actually execute things. Then as you're running through your checks and stuff like that, there were some intels, fairly recent, in regards to formal interactions with the plaintiff in regards to drugs. You quickly read through them, and it gives you a little bit more information in regards to the nature. So your level of suspicion just comes up just a little bit more.

There's also too the, the nature of the Crime Stoppers, and even though there's not a hell of a lot of steed taken into it, it means that someone knows you, and knows enough about you to contact police to have a conversation with us. So even though the nature of it, again, is drugs, okay, the information may not be a hundred percent accurate, or it may be somewhat speculative, but in relations to suspicion, it just comes up a little bit more.

Then I went through the charge history and there are some charges in her past and they're also for a drug possession but also too for shoplifting. The two seem to go together with each other - drugs and stealing to finance the drugs, okay, so you have a drug history, that's okay. So then it just moves up just a little bit more.

Then prior to that there was a charge of a positive roadside drug test. Now, that went to court and it was also proved in her system through FASS which is the Forensic Scientific Laboratory that the government has. It proved beyond reasonable doubt that she was positive for methamphetamine, ice, and also cannabis and that was within six months. That's also now starting to make sense why you're on the rail network, you've lost your driver's licence. Okay no problem. So it's proved beyond reasonable doubt you take drugs, you use drugs. Okay.

Then two days prior to that there is a police search at Sydenham railway station while the PTC is executing a planned operation, police operation and they've used drug dogs which are specifically trained to identify. From that police report she was with another female and there was an interaction where she came up towards the train station and quickly turned around and that time also caught the attention of police but also the drug dog reacted to it and made a beeline after them. They didn't immediately stop. They were stopped just a little bit of a distance and in that interaction there there was a search. So okay, no problem at all.

From the conversation just prior and also confirmed in the body-worn video was her destination where she was going which is Eden Street in Arncliffe, okay. That woman when she said she was visiting a friend, okay, happened to be the same woman two days prior who has a very extensive drug history and lives in Eden Street so by this time when I'm getting those thresholds, bells are really sounding, hence why, "Why did you get off at Wolli Creek, why not Arncliffe? It's closer," but I know for a fact that there are several drug houses along the way to Eden Street and I know that you can walk through that way and not be detected or you could buy something on the way or have something in your possession along the way or previously there. I took it as a ways and means of avoiding police. She's been there before. Her previous address is there and her former partner is there and there's plenty of police that just sit off the eastern side of the railway station which is towards Eden Street and unfortunately if you get off there you're stuck. There's no way around whereas Wolli Creek is similar but as you can see there's getaways and there's hidey-holes and that kind of stuff. You can avoid us if you're keen.

One of the positions there is it's very easy for us to stay hidden and obscured by the sign but we can clearly see what's going on underneath because you can see in the body-worn video there's a gap. That gives us a distinct tactical advantage. Blue shirts stand out. Our uniforms stand out. So by using that location there that gives us an advantage.

So from there, from everything that's going on there, me having the conversation, picking up she's a little bit slurry, and also too she's a bit glazy in her appearance I thought, righto, if I had someone next to me they too would come to the same conclusion, there's something suspicious about this and the threshold has been met and that's why I was about to say, okay, this is the reason why.” (Tcpt 18.10 – 19.30)

9. The conversation between the Police officers and the plaintiff after the Senior Constable accessed the MOBIPOL is recorded on footage from the Senior Constable’s body worn camera, although at times some of what is said is inaudible.

10. The parties agreed a transcript of such of the audio as they could discern from the body worn camera footage. Whilst the parties were careful to point out they could not warrant complete accuracy, on my review the transcript is reliable and accurate.

Did the Plaintiff Consent?

11. It is common ground that it is for the defendant to establish the plaintiff consented to the search.

12. The defendant argues consent is established from the following dialogue which commences on the activation of the body worn camera and the Senior Constable identifying himself as being with the Cronulla Police Transport Command:

The Senior Constable: This is a body worn camera, it just records what we do and say. Okay? You’ve got a fair bit of history.

Plaintiff: Hmm.

The Senior Constable: My intention is just to search your bag.

Plaintiff: Go for it.

The Senior Constable: That’s all, darl. And then you’re out of here, okay?

The Other Police Officer: There’s nothing in your bag, you shouldn’t have? There’s no needles, is there?

Plaintiff: [inaudible].

The Senior Constable: If you do have them, just yell out, darl. It’s not a problem.

Plaintiff: I don’t think so. No, I make sure I don’t carry that shit.

The Senior Constable: All we’re going to do is… Just going to do it right here, okay?

13. The search then followed, punctuated by conversation predominantly between the Senior Constable and the plaintiff.

14. The defendant argues that when the plaintiff told the Senior Constable “go for it”, she was consenting to the search of her bag.

15. In evidence the Senior Constable said of those words from the plaintiff:

“I took that as consent. I hadn’t had the opportunity, if you look at the time, it’s within, like, a second of me saying something, I hadn’t even had the chance to, to rattle off the, the legal obligations of a, of a person. Usually I also explain to them why, how, when, what my observations are, et cetera. But it’s pretty rare for a person to say, ‘Go for it”, and hand their bag to you. I was – sorry – yeah, taken a little bit by surprise from that” (Tcpt 17.32-17.37).

16. As the Senior Constable described it, in the circumstances he did not proceed to adopt his normal practice, which was to explain when exercising a power that failure to comply is an offence and can lead to arrest, and to also explain to the person in general why the power was being exercised, as he put it, “in case they wished to explain something or throw something extra. There’s always the possibility of misunderstanding …” (Tcpt 17.45-17.47).

17. Mr Gollan who appeared for the defendant argued the words, “go for it” signalled consent in the context of the interaction which was taking place. He contends there was nothing about the plaintiff’s words or demeanour to suggest she was not consenting.

18. Whilst Mr Gollan accepted the question is not whether the Senior Constable understood the plaintiff to be consenting but whether she was in fact consenting, he argued that, in the circumstances, one would have expected the plaintiff to give evidence on the issue. It follows, he submitted, the failure to call the plaintiff ought lead to an inference in accordance with the principles discussed in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, namely that the plaintiff’s evidence would not have assisted her case.

19. Mr Gollan took me to the observations of the majority in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] – [64], and the greater likelihood of an inference being drawn in circumstances where the uncalled witness is a party.

20. I observe that in the course of argument some submissions were made in relation to s 34A of LEPRA which obliges a Police officer to seek a person’s consent before carrying out a search. Ultimately, Mr Canceri, who appeared for the plaintiff, appropriately in my view, agreed with the defendant’s position that s 34A is not relevant because it relates to a search of the person, not things in the possession of the person. Accordingly, s 34A can be put aside and the question of consent considered purely as a question of fact.

21. The plaintiff submits there was never a request for consent nor any confirmation by the Senior Constable of his conclusion that the plaintiff was consenting.

22. The plaintiff says there was effectively a direction or command by the Senior Constable, and it ought be concluded that the plaintiff’s will was overborne by the Senior Constable’s position of authority.

23. Mr Canceri answers the Jones v Dunkel submission by conceding an inference should be drawn in relation to the plaintiff’s failure to give evidence in respect of factual issues upon which she would have been expected to depose. He argues, however, the high-quality body worn camera footage means that the Jones v Dunkel inference is of little moment, as what the plaintiff said and did is readily discernible from the footage.

24. Mr Canceri argues it is the defendant who ought be subject to a Jones v Dunkel inference for not calling the other Police officer who was with the Senior Constable at the time.

25. I understood Mr Canceri’s submission on the Jones v Dunkel point, so far as it relates to the issue of consent, to include the proposition that there was no occasion to call the plaintiff on the question of consent because the defendant bears the onus and, on the evidence, had not established that she did consent. Thus, no adverse inference arises from the plaintiff not addressing something that was not proved against her.

26. My conclusions in relation to the issue of consent are as follows:

27. The Senior Constable did not at any point request the plaintiff’s consent or agreement to search her bag. His words were expressly a statement of intention, or at the very least a statement of fact, unqualified by any suggested need or invitation for consent on the plaintiff’s part. The Senior Constable conceded as much when he told Mr Canceri he had not had the chance to seek the plaintiff’s consent because, as he started his “spiel”, the plaintiff handed her bag over and said, “go for it” (Tcpt 68.45-68.50).

28. It is relevant that the Senior Constable’s statement of intention to search the plaintiff’s bag came immediately after he commented on her having “a fair bit of history”. This might be seen as providing some authority for the search.

29. It might be argued the plaintiff consented to the search because she did not challenge the Police officers’ right to do so. However, in my view, the dynamic at play does not commend such an interpretation. The Senior Constable was undoubtedly controlling the interaction. The plaintiff was compliant with all requests and at no point did she question the Police officers’ authority. There is nothing in terms of what was said or done by the Senior Constable to suggest the plaintiff had any say in the search he intended to undertake. In my view, in the context of the plaintiff immediately providing the bag when told that the Senior Constable intended to search it, the words “go for it” ought be seen as cooperation rather than authorisation.

30. The question of consent was considered by Newlinds SC DCJ in Reyes-Carrion v State of New South Wales [2025] NSWDC 28 at [69]-[85]. As his Honour explains (at [72]), consent must be voluntary and, in the context of consenting to the exercise of Police powers, must be more than mere acquiescence to what a person believes to be the Police officer’s lawful right.

31. Of course, a missing component in the present case is whether the plaintiff believed she was simply acquiescing to something the Senior Constable was entitled to do, as opposed to exercising a choice to provide consent for the Senior Constable doing that thing.

32. It is here that the words spoken by the Senior Constable take on significance. For the reasons I have outlined, I regard them as a statement of intention or fact which was acknowledged by the plaintiff. The position contended for by the defendant, in my view, required the Senior Constable to add words seeking or confirming consent.

33. Although, for the reasons to which I will come, I accept there is scope for an adverse inference against the plaintiff for not giving evidence about certain factual matters, I am not satisfied that a Jones v Dunkel inference ought be drawn in relation to the plaintiff not giving evidence about consent. It is the defendant’s onus to prove consent. If that is not established on the evidence presented by the defendant, there is no need for the plaintiff to give any evidence on the point in reply. As I do not think the defendant has established prima facie consent, I do not draw any adverse inference from the plaintiff not giving evidence as to consent.

34. Accordingly, I find that the defendant has not established the plaintiff consented to the search undertaken by the Senior Constable.

Was the Search and Detention Lawful

The Legal Framework

27. Absent consent, the case turns on a consideration of whether the search and related detention of the plaintiff were lawful.

28. This involves a consideration of s 21 LEPRA which, for presently relevant purposes, provides:

21 Power to search persons and seize and detain things without warrant

(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.

29. The issue thus engaged is whether the Senior Constable suspected, on reasonable grounds, that the plaintiff was in possession of a prohibited drug.

30. The plaintiff accepts the Senior Constable subjectively held the suspicion under s 21(1)(d), but disputes that the suspicion was held on reasonable grounds.

31. For the purposes of s 21, once it is accepted the Police officer held the relevant suspicion, it is the objective reasonableness of the grounds upon which the suspicion is based which is open to scrutiny, not whether the suspicion was reasonably held. [1]

32. The concept of “reasonable grounds” is well travelled territory. It has been considered recently by the Court of Appeal in Emde v State of New South Wales [2025] NSWCA 41 and State of New South Wales v Dennis [2025] NSWCA 118, where the Court referred to the principles discussed in George v Rockett (1990) 170 CLR 104; [1990] HCA 26. As the High Court observed (at 112), where a statute prescribes a requirement for reasonable grounds to exist for a state of mind, including suspicion and belief, there is a need for the existence of facts “sufficient to induce that state of mind in a reasonable person”.

33. Ultimately, the determination of whether reasonable grounds exist for a requisite suspicion is an evaluative exercise, applying objective standards to determine whether a reasonable person, in the prevailing circumstances, would consider the grounds justify the suspicion.

34. In Rockett the High Court recognised (at 115) that, “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.”

35. The concept of “suspicion” is not easily defined. It is clearly something less than belief. In Rockett, the High Court referred to Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303 where Kitto J described suspicion as being more than mere idle wondering about whether something exists, but rather a positive feeling of actual apprehension or mistrust which, to use a dictionary definition, amounts to “a slight opinion, but without sufficient evidence”. As Kitto J put it, “a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence”.

36. Guided by those principles I turn then to the fact sensitive question of whether the Senior Constable’s suspicion was founded on reasonable grounds.

Consideration of the Grounds Relied Upon

37. The grounds upon which the Senior Constable said he based his suspicions that the plaintiff had possession of prohibited drugs can be distilled, predominantly from the evidence quoted earlier, into the following:

38. The plaintiff was in a geographical location known for a significant level of drug activity and was going to Eden Street, a known drug hot spot.

39. The plaintiff was intending to visit a woman with an extensive drug history.

40. The check of the plaintiff’s CNI showed there were several existing warnings, as well as intelligence reports from Police officers in relation to the plaintiff concerning drugs.

41. There were Crime Stopper entries indicating that members of the public had contacted Police in relation to the plaintiff.

42. There were recent charges against the plaintiff in regard to drugs and traffic which involved a positive roadside drug test within the previous six months.

43. There were two matters in the plaintiff’s history involving shoplifting which he considered went together with drug offences, namely stealing to finance drugs.

44. There was a formal interaction with Police two days before the events in question, primarily in relation to drugs.

45. The plaintiff was “a little bit dishevelled” and gave the appearance of someone who had a drug problem. She was also a little bit glassy eyed, her eyes were bloodshot, and her speech was a little bit slurry (although not what would be called seriously drug-affected or intoxicated).

46. He considered that the plaintiff was probably coming off some form of drug, having regard to the interaction which had occurred in the days prior.

47. His experience was that women tend to secrete drugs in their bag while men tend to carry drugs on their person.

48. The plaintiff raises concerns as to the credit worthiness and reliability of some of the Senior Constable’s evidence. To a significant extent this involves the Senior Constable’s ability to draw conclusions from the MOBIPOL in the short time available before commencing the search, and the accuracy of his interpretation of the MOBIPOL data.

49. Specifically, the plaintiff argues the concessions made by the Senior Constable in cross-examination show that, contrary to his evidence in chief, there were no charges in the plaintiff’s CNI for supplying or possessing prohibited drugs. The plaintiff also makes the point that intelligence reports are not a reliable foundation upon which to draw conclusions, being potentially based on inuendo and untested allegations.

50. The plaintiff contends the Senior Constable deliberately exaggerated the significance of matters contained in her criminal history to justify his position.

51. In the course of his evidence, the Senior Constable was cross-examined about an audit report produced under subpoena which showed searches carried out on the MOBIPOL by the Senior Constable when dealing with the plaintiff at the train station. Those records show the Senior Constable accessed the MOBIPOL records in relation to the plaintiff at 4:06pm. The plaintiff and the Senior Constable parted company at 4:10pm. The only actual search made of the various entries on the MOBIPOL were searches of the Roads and Traffic Authority in relation to the plaintiff’s licence details.

52. The Senior Constable accepted in cross-examination that the information he obtained at the scene came from scrolling through the plaintiff’s background history on his MOBIPOL device.

53. The documentation tendered before me includes hard copies of the information which was available to the Senior Constable when he checked the MOBIPOL. There are entries for various matters spanning a number of years, some, but not all of which, involved drugs. The Senior Constable agreed there were only one or possibly two Crime Stoppers reports involving concerns raised by the public. He accepted those reports were undated and could have gone back several years.

54. The Senior Constable also accepted the intelligence reports in the material he viewed could have been old and outdated. Whilst the Senior Constable did not actually read the intelligence reports, he referenced a summary of them on the MOBIPOL device.

55. The Senior Constable agreed the CNI records accessed through the MOBIPOL showed that two days before this incident the plaintiff was subject to a search of her person. However, as I understand that evidence, there is no indication the plaintiff was found to be in possession of drugs at that time.

56. There also appears to be no suggestion the plaintiff was under Police investigation for any drug related offences at the time she came to the attention of the Senior Constable.

57. I consider the reality to be that, in the short time available, the Senior Constable conducted a necessarily superficial review of the MOBIPOL records which revealed a history of the plaintiff being involved with drugs.

58. I accept the plaintiff’s submission that at an objective level the Senior Constable’s evidence overstates the significance of the information obtained from the MOBIPOL device in relation to prior interactions with Police involving drugs. Specifically, there were no charges for supplying or possessing drugs, the recent search of the plaintiff had not found her to be in possession of drugs and there were no extant investigations in relation to her activities.

59. Apart from the MOBIPOL information, the Senior Constable referred to concerns associated with the plaintiff being on her way to Eden Street.

60. As noted, the Senior Constable said in his evidence he was told prior to activating his body worn camera and executing the search of the plaintiff’s bag that she was going to Eden Street. The transcript of the body worn camera footage includes a conversation after the plaintiff’s bag had been searched, which contains reference to the fact the plaintiff was heading for Eden Street. The plaintiff submits the tone of the other Police officer’s voice on the footage suggests Eden Street had not been mentioned before.

61. Whilst there is some substance in the plaintiff’s submissions on this question, the plaintiff confronts the Jones v Dunkel point and the fact she did not give evidence challenging the Senior Constable’s account on the issue. In those circumstances, I am not satisfied the Senior Constable’s evidence is unreliable on the issue, and I accept the plaintiff had said prior to the search that she was going to Eden Street.

62. It is unclear however, how the Senior Constable came by the information that the friend the plaintiff said she was visiting in Eden Street had an extensive drug history and was the person the plaintiff had been with when searched in the days before. It seems unlikely the Senior Constable would have gleaned that information from briefly scanning the MOBIPOL records prior to searching the plaintiff.

63. There are other matters which the plaintiff raises going to the Senior Constable’s credit. In particular, the plaintiff challenged the Senior Constable’s evidence that after the search was concluded he gave the plaintiff a “move on” notice because he suspected she was at the location to buy drugs. In particular, as was put to the Senior Constable, this was not caught on the body worn camera footage which, on the face of it, ran up to the time the plaintiff and the Police officers parted company. The Senior Constable acknowledged this but said by the time he issued the move on notice he had turned his body worn camera off. He said the reason for that was “oversight”. The move on direction was also said to have been given in the presence of the other Police officer, who was not called.

64. I have concerns as to the reliability of the Senior Constable’s evidence in relation to the move on direction. As put by the plaintiff, it appears the interaction had come to an end and the plaintiff was leaving the scene when the body worn camera footage ceases. It is possible but, in my view, unlikely that the Senior Constable then issued a move on direction, and it is questionable that the camera was not turned on because of an oversight, it having been activated beforehand. Ultimately however, this is an issue that goes largely to the Senior Constable’s credit. Again, the plaintiff suffers from the fact that she did not give evidence challenging the Senior Constable’s account. In all the circumstances, I am not prepared to draw conclusions adverse to the Senior Constable’s credit on this aspect of the matter.

Were there Reasonable Grounds for Suspicion

55. For the following reasons, I have come to the conclusion the Senior Constable’s suspicion that the plaintiff was in possession of a prohibited drug was not formed on reasonable grounds:

56. The information accessed from the MOBIPOL device did not rise higher than establishing the plaintiff had a history of drug use.

57. The fact the plaintiff had a prior criminal record or had come to the attention of Police in relation to drug offences, as a general proposition, would not, in my view, provide reasonable grounds of itself for a suspicion that the person has in his or her possession a prohibited drug.

58. In my view, in line with the authorities quoted earlier, reasonable grounds for forming the requisite suspicion involves a greater level of certainty than might constitute reasonable grounds for exploring whether a state of affairs exists. Were it otherwise, people with a criminal history would be subject to search and with that, encroachment on fundamental rights, every time they came to the attention of Police. Absolutes are to be avoided and there may be cases where a prior criminal history could of itself provide reasonable grounds for forming the necessary suspicion. However, in the present case, searching the plaintiff because she had past involvement with drugs would, in my view, effectively amount to profiling.

59. The fact that the plaintiff was in an area known to be a drug hot spot alone, or when added to other factors, does not, in my view, provide reasonable grounds to suspect she was carrying drugs. There are any number of reasons, including the plaintiff’s socio-economic circumstances, as to why she may have been in that area. Many, if not most, of those reasons would have a non-criminal basis.

60. Similarly, the fact the plaintiff was visiting someone in the area who had a history of involvement with drugs, if that be the case, adds little basis for suspecting that the plaintiff had possession of drugs. There was nothing available to the Senior Constable to suggest the plaintiff’s acquaintance was using drugs or doing anything illicit at the time in question. Visiting a person in the area is readily explicable without a criminal element or illegal purpose being inferred, even if, like the plaintiff, the person had a background history of drug use. It may provide a basis to explore with the plaintiff what she was up to or intending to do in the area but falls short of a ground which would induce a reasonable person to suspect the plaintiff had possession of drugs.

61. Nothing the plaintiff told the Senior Constable in the discussion she freely had with him provided any fuel for a suspicion that she had drugs in her possession or was visiting Eden Street for an illicit purpose.

62. The Senior Constable’s evidence that the plaintiff looked “a little bit dishevelled” is obviously a subjective assessment informed by the Senior Constable’s impression that the plaintiff had probably had a hard life and that her appearance was consistent with someone who had a drug problem. In cross-examination the Senior Constable said being dishevelled was not necessarily indicative of someone with a drug problem, and whilst it did not feature prominently in his mind in this case, he nevertheless thought it was consistent with the use of drugs.

63. Of course, these things are relative. However, having viewed the body worn camera footage carefully, the plaintiff’s appearance is entirely unremarkable, and at an objective level, I consider it adds nothing to the grounds for suspecting she had possession of drugs.

64. The Senior Constable’s reference to the plaintiff being “a little bit glassy eyed, a little bit blood-shot” was qualified immediately by him saying, “but not, not too bad”.

65. It is apparent from the footage and comments made at the time that it was a cold day, and the plaintiff appeared to be sniffling somewhat. It is not apparent from the footage that the plaintiff’s eyes were blood-shot. Nonetheless, up close they may have been, and similarly, they may have been glassy, however, from the footage and the Senior Constable’s evidence, not obviously so. There are of course many possible reasons for that, including the weather, ill-health or medication. Notably, the plaintiff was found to have antibiotics in her bag when it was searched, which she advised the Police officers was for a problem she had with her teeth. Conceivably, that may have been relevant to the plaintiff’s appearance. Notably, the plaintiff was not unsteady. She was coherent and she responded promptly and appropriately to all questions asked of her and engaged in normal conversation with the Police officers.

66. The evidence that the plaintiff’s speech was a little bit slurry was also immediately qualified as “not what you’d call seriously drug affected, or intoxicated, or anything like that”. Again, the footage is relevant. It does not, on my observation, demonstrate slurred speech, however again, that is not to say in real-time the Senior Constable did not perceive it as such. The plaintiff clearly had some dental issues, and it appears she had some missing front teeth. These things may have explained a perceived slur in her speech.

67. Without more, in my view, the plaintiff’s appearance, as described by the Senior Constable, does not provide reasonable grounds to suspect she was in possession of drugs. The Senior Constable was asked whether any enquiry was made of the plaintiff in relation to his impressions about her appearance and speech. The Senior Constable said typically he would make some enquiry and as he put it, “we usually just say ‘you’re looking a bit, a bit glassy, and you’re a little bit slurry. Is there anything you want to say, tell us about that’”. The Senior Constable said an enquiry was in fact made of the plaintiff in this case, although that occurred prior to the activation of the body worn camera. The Senior Constable did not however elaborate on what was said. Presumably, the plaintiff did not admit to taking or possessing drugs. The Senior Constable did not give any evidence to suggest what he had been told by her in relation to these matters gave rise to any doubts or heightened suspicions on his part.

68. Otherwise, I did not understand the Senior Constable or the defendant to place any particular emphasis on the fact the plaintiff was carrying a handbag as providing a ground for suspicion in the circumstances. In any event, it seems to me, in context, the relevance of that evidence is that if there were reasonable grounds to suspect the plaintiff was in possession of drugs, it might be that those drugs could be contained in her bag. Having a handbag could not reasonably in the circumstances provide a ground for suspicion the plaintiff had prohibited drugs in her possession.

69. Finally, there is the Senior Constable’s evidence that his experience fuelled his suspicion the plaintiff was coming off some form of drug, particularly having regard to her interaction with Police in the days before.

70. I accept that in assessing whether there were objectively reasonable grounds for the suspicion formed by the Senior Constable it is appropriate to bring to bear his prior experience. [2] However, the Senior Constable did not give evidence of anything other than those physical features discussed above which led him to form the view the plaintiff was coming off some form of drug. As such, I consider there is nothing demonstrated about the Senior Constable’s experience which would weigh on the assessment of whether the grounds relied upon were reasonable. The Senior Constable’s reference to the plaintiff probably coming off drugs because of her interaction with Police in the days before is objectively difficult to reconcile given the plaintiff appears not to have been found to be in possession of drugs at that time and was not asked anything about that interaction by the Senior Constable.

71. It is important that questions of objective reasonableness be considered not in the artificial environment of a court room, nor under a microscope of hindsight, but in practical “real world” terms, bearing in mind the exigencies of the difficult work Police must do. Reasonable grounds can no doubt arise from the cascading effect of factors which individually may not justify a state of mind but in combination do. Nonetheless, for the reasons I have outlined, I am not satisfied the matters relied upon by the Senior Constable, alone or in combination, provided reasonable grounds to suspect the plaintiff had possession of drugs. Essentially, the grounds relied upon by the Senior Constable were sourced in the plaintiff’s prior criminal and drug history, which for the reasons discussed, I do not consider provide reasonable grounds for the requisite suspicion. Nor, in my view, does that history elevate the other matters relied upon by the Senior Constable to reasonable grounds for the suspicion he held.

72. Accordingly, I am satisfied the plaintiff makes out her claim for trespass to goods and false imprisonment.

Damages

Trespass to Goods

58. The trespass to the plaintiff’s goods consisted of handling her bag and its contents for the purposes of a brief search. Whilst the search appears to have gone beyond a search for drugs and included scrutiny of and enquiries about her credit cards, there is no suggestion there was any damage to the plaintiff’s goods. The search was carried out respectfully and efficiently. In my view, damages for trespass to the plaintiff’s goods ought be nominal only, to reflect the benign nature of that trespass. In all the circumstances, I allow the sum of $100 for trespass to the plaintiff’s goods.

False Imprisonment

59. The unlawful detention of the plaintiff which constituted false imprisonment took but a few minutes. Again, the plaintiff was treated respectfully during that time. Whilst deprivation of liberty is a significant matter, the false imprisonment in the plaintiff’s case was very brief with no aggravating factors. There is no evidence to suggest the detention had any effect on, or adverse consequences for, the plaintiff. Again, I consider damages ought be nominal, reflecting the nature and circumstances of that detention. In all the circumstances, I allow damages for false imprisonment in the sum of $200.

Aggravated and Exemplary Damages

60. The authorities make it clear that aggravated damages look to compensate injury to feelings caused by the wrongdoing to the extent not otherwise compensated. This can occur where the wrongdoing goes beyond “ordinary human fallibility” as discussed by Hodgson JA in State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [131].

61. Generally speaking, the recovery of exemplary damages requires a “conscious wrongdoing in contumelious disregard of another’s rights” (Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14]).

62. Whilst considering the Senior Constable’s search and detention of the plaintiff to have been unlawful, as noted, he nonetheless treated the plaintiff professionally and respectfully. It is contended there was an element of embarrassment because the detention occurred in full view of the public. However, the fact is the plaintiff was lawfully detained for the purposes of being issued with an infringement notice for fare evasion. She gave no evidence of embarrassment resulting from the subsequent search and brief detention. Nothing in terms of the way in which the Police purported to exercise their powers, in my view, would justify an award of aggravated damages and I decline to do so.

63. For obvious reasons in light of the findings I have made, I consider there is no basis upon which an award of exemplary damages would be contemplated.

Costs and Interest

64. In the circumstances, I will hear from the parties in relation to an appropriate costs order in light of the outcome. In submissions the plaintiff indicated a wish to be heard in respect of any entitlement to interest. If that is pressed, it can be dealt with along with the question of costs.

Orders

65. Accordingly, I make the following orders:

66. Judgment for the plaintiff in the sum of $300.

67. Costs, and if pursued, any claim for interest, are reserved.

68. I will make directions in consultation with the parties for the purpose of dealing with questions of costs and interest.

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Endnotes

See reasoning in Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [26] and [97].

See Prior v Mole supra at [19] and [71].