Karlsson v R

Cases Cited: Charara v The Queen [2006] NSWCCA 244
DPP v AM (2006) 161 A Crim R 219
DPP v Carr (2002) 127 A Crim R 151
DPP v Coe [2003] NSWSC 363
DPP v Kaba (2014) 44 VR 526
Lunney v Director of Public Prosecutions [2021] NSWCA 186
R (Cth) v Petroulias (No. 8) [2007] NSWSC 82
R v Cornwall [2003] NSWSC 97
R v Dalley (2002) 132 A Crim R 169
R v Haddad (2000) 116 A Crim A 312
Reyes-Carrion v The State of New South Wales [2025] NSWDC 28
Ridgeway v R (1995) 184 CLR 19

Category: Principal judgment

Parties: Daniel Karlsson (Appellant)
Office of the Director of Public Prosecutions (Respondent)

Representation: Counsel:
E Rowe (Solicitor) (Appellant)
B Edye (Solicitor) (Respondent)
Solicitors:
O'Brien Criminal & Civil Solicitors Pty Ltd (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2023/312779

Publication restriction: Nil

JUDGMENT; ex tempore (revised)

1. On 9 August 2024, after a contested hearing before Magistrate Nash in the Local Court, the Offender, Mr Karlsson, was convicted of two offences arising from events on 3 October 2023 at Potts Point.

2. Sequence 1, hinder police in the execution of duty contrary to s 61AA Crimes Act 1900 (NSW) and

3. Sequence 6, use offensive language in a public place contrary to s 4A Summary Offences Act 1988 (NSW).

4. Mr Karlsson appeals to this Court pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) which appeal is a rehearing on the certified transcripts before the Local Court (Charara v The Queen [2006] NSWCCA 244 at [17]). The task for this Court on appeal was explained with clarity by McCallum J in Lunney v Director of Public Prosecutions [2021] NSWCA 186 at [18]. Whilst there is no need for appealable error to be identified, the Court’s task is to assess for itself the evidence and competing submissions giving due weight to any advantage the Magistrate may have had and form its own opinion as to the correct outcome of the case and if that outcome is different from that determined by the Local Court then the appeal should be allowed.

5. The essential facts are not in issue.

6. On 3 October 2023, Mr Karlsson volunteered to police officers, including Constable Moriarty, that he did not have a ticket to travel on public transport, for which offence he has pleaded guilty and been sentenced. That conviction and sentence is not the subject of the appeal.

7. What happened after Mr Karlsson confessed the fact that he did not have a valid ticket, is Constable Moriarty asked the Offender questions as to his identity, and having identified him, conducted a search on the police computer system which identified that Mr Karlsson had a history of some drug and property offences on his record. Constable Moriarty then asked Mr Karlsson a series of questions including questions to the effect of whether Mr Karlsson had any drugs on him to which he received an affirmative answer. As it turned out, the drugs Mr Karlsson had on him were legal, but nonetheless, what he said was reasonably taken by Constable Moriarty to be an admission that he had illicit drugs on him.

8. Constable Moriarty then told Mr Karlsson that he was going to search him which led to an unfortunate interaction between Mr Karlsson and Constable Moriarty, which led to the charges.

9. The Appeal essentially raises one issue of law. On behalf of Mr Karlsson, it is submitted that all of the evidence of the interaction between Mr Karlsson and Constable Moriarty should have been excluded pursuant to s 138 of the Evidence Act 1995 (NSW) (“Evidence Act”) because it was either improperly or illegally obtained. The threshold question of law is whether s 138 was engaged because of some illegality or impropriety on the part of Constable Moriarty.

10. It is submitted on behalf of Mr Karlsson that after the police identified Mr Karlsson and had his admission that he was travelling on public transport without a ticket, he should have been free to go but instead he was unlawfully detained and asked a series of questions irrelevant to the transport offence, the answers to which showed him as being potentially in the possession of illicit drugs. He was not cautioned in any way before answering those questions which again is said to be, if not a breach of the law, an impropriety as contemplated by s 138.

11. The totality of Constable Moriarty’s conduct in detaining Mr Karlsson and asking the questions and obtaining the answers about drugs is said to be unlawful, i.e., the detention and the questioning and therefore, so the submission goes, all of the evidence that was obtained thereafter ought be ruled inadmissible by route of the discretion provided for by s 138 and the Magistrate ought to have embarked upon considering that exercise of discretion.

12. The Magistrate concluded that there was no impropriety or contravention of any law and therefore took the view that s 138 was not engaged and thus did not embark on the discretionary exercise. The evidence was admitted and Mr Karlsson convicted.

13. Dealing with the question of illegality/impropriety first, the Magistrate found that there was nothing unlawful in the detention because the Magistrate was satisfied, by reference to the provisions of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), that Constable Moriarty did suspect, and his suspicion was based on reasonable grounds, that Mr Karlsson was in the possession of illicit drugs. On that basis, it was held that the detention was lawful.

14. The Magistrate expressly took into account when considering the grounds that the suspicion was based on:

(a) The appearance of Mr Karlsson, which was said to be scruffy; (b) The fact that the location was in the vicinity of Kings Cross, which apparently remains a known drug location; (c) The checks undertaken on the MOBIPOL Police System; and (d) The admissions made by Mr Karlsson to the effect that he did have drugs on him.

13. The Magistrate spent some time analysing the law in relation to s 21 of LEPRA which is not as clear as one might hope. I recently tried to explain the objective requirements of s 21 in Reyes-Carrion v The State of New South Wales [2025] NSWDC 28 at [32] to [68] and before me the parties have rehearsed submissions as to competing approaches.

14. I do not think it is necessary to go back over that law because it seems to me that it is obvious that if Constable Moriarty was entitled to take into account as one of the grounds for his suspicion the answers to the questions he obtained which included an apparent admission that Mr Karlsson had drugs on him, then the suspicion that Constable Moriarty had was based on reasonable grounds. On the other hand, it is equally clear that, without that admission, all Constable Moriarty had as grounds were the scruffiness of Mr Karlsson, the location of King’s Cross, and the fact that there was a criminal record on the system. In my view, those grounds taken together would not amount to reasonable grounds as I understand that concept to be explained in the various cases concerning s 21 of LEPRA.

15. The real question is whether in the period leading up to the admission by Mr Karlsson, Constable Moriarty had any reasonable grounds to suspect that he might have in his possession illicit drugs so as to justify his ongoing detention during that period. Constable Moriarty accepted in cross-examination that Mr Karlsson was not free to go during that period. He also accepted that it is only when the admission was obtained that he considered the grounds relied upon became reasonable grounds for the purpose of s 21. A fair reading of Constable Moriarty’s evidence is that it was only upon obtaining the admission that he felt that he had reasonable grounds for his suspicion.

16. On that analysis, the detention of Mr Karlsson during the period when he made the admission was in my opinion unlawful in the sense that it was not a detention which could be justified by recourse to s 21 of LEPRA and therefore was a false imprisonment which is contrary to the law of Australia.

17. There is another way of looking at the situation and that is that Constable Moriarty was, from the time the interaction with Mr Karlsson commenced, investigating a transport offence. However, the questions he asked in relation to possession of drugs were directed to an investigation that was forming in his mind as to another offence. They had nothing to do with the transport offence. I do not think that the questioning of Mr Karlsson in relation to his potential possession of drugs was, in any way, linked to the investigation, even if it was ongoing, as to the transport offence and therefore cannot be justified as part of the investigation into transport offences.

18. I have taken into account the submissions made on behalf of the Crown that all of this happened in a very short and compressed timespan and that it is, perhaps, a little artificial to split up and dissect, with the benefit of hindsight, what occurred. However, accepting the caution that needs to be applied, to my mind the simple fact is that Constable Moriarty became interested in whether Mr Karlsson was holding illicit drugs, and there was a point in time after which he was detaining Mr Karlsson and questioning him in relation to that matter, in circumstances where he had no lawful entitlement to do so under LEPRA or otherwise.

19. Furthermore, Constable Moriarty did not caution Mr Karlsson before asking the question. This may not be a breach of any law, but in my opinion is an impropriety for the purpose of s 138, in that because that failure breached the safeguards under pt 9 of LEPRA and s 139 of the Evidence Act.

20. For those reasons, I am satisfied that the basis for Constable Moriarty determining to search Mr Karlsson was the product of improper and/or illegal conduct by the police. Accepting that Constable Moriarty honestly believed that he had a basis to search Mr Karlsson, in my opinion there was no legal basis for him to do so because his suspicion was not based on ‘reasonable grounds.’ Accordingly, his conduct was at the very least improper. This is because the ground ultimately determined to be one of the reasonable grounds was itself obtained illegally or with impropriety.

21. However, that is not the end of the matter. It was only after Constable Moriarty determined to try and search Mr Karlsson that he resisted. Mr Karlsson’s case is that the evidence of his resistance ought be excluded because of the impropriety and/or the illegality I have identified.

22. I do not think it is as simple as that. Ultimately, most of the argument before me went to this point. The fact that Constable Moriarty was attempting an arrest in circumstances I have described, does not necessarily make the evidence of Mr Karlsson’s resistance, evidence that was illegally or improperly obtained.

23. There is a question here of the proper construction of s 138(1). The legislation is directed to “evidence that was obtained” in the circumstances prescribed by s 138 and thereafter engages a discretion as to the admissibility of such evidence. The critical question becomes, what is the evidence that was either “obtained” directly or “in consequence” of any identified impropriety.

24. The usual manner in which this issue arises is that there is an unlawful detention, search or questioning which leads to the discovery of evidence. At a subsequent court case, that evidence is sought to be tendered, and an objection is taken upon the basis of s 138. In such a case, there is a clear link between the evidence, the subject of the objection, and the identified impropriety because the very evidence under discussion was a direct product of the impropriety.

25. However, that is not this case. As a result of the questioning and detention, no evidence relevant to the charges, the subject of the appeal, was obtained. Rather, it led to the attempted search, which resulted in the conduct, the subject of the hinder police and offensive language charges. It was that subsequent conduct that was the subject of the evidence under challenge.

26. So, it can be seen, the evidence in relation to those charges was not the direct product of the illegal or improper conduct I have identified, but rather was the reaction of Mr Karlsson to the police’s subsequent attempt to search him.

27. For evidence of such conduct to have been “caused” or to use the words of the statute, to be “in consequence” of the impropriety or illegality, one must adopt an extremely broad “but for” type test which must inevitably run the risk of turning attention away from actual evidence obtained to conduct in consequence of that conduct.

28. This difficult question has been considered in a series of cases over the last 25 years but, if I may say so with respect, does not seem to have been resolved in any satisfactory way. In R v Haddad (2000) 116 A Crim A 312, Spigelman CJ at [73] to [75], when considered whether evidence obtained prior to the impropriety could be the subject of an objection under s 138 said it was at least arguable that the formulation “obtained in contravention” should not be construed so narrowly. On the other hand, in a subsequent decision of R v Dalley (2002) 132 A Crim R 169, a differently constituted Court of Appeal, including Spigelman CJ rejected the notion that conduct that occurred after the evidence was obtained could ever engage s 138.

29. In R v Cornwall [2003] NSWSC 97, Howie J observed at [25] that the causation aspect of s 138 could be direct or indirect. In R (Cth) v Petroulias (No. 8) [2007] NSWSC 82, Johnson J at [25] confirmed the connection could be indirect so long as “there was a sufficient connection.” What might be “sufficient” was not explained.

30. It does seem to have been assumed, but not determined in a number of cases, that what is sometimes described as the “Ridgeway” discretion can apply to s 138. That discretion was described by the High Court in Ridgeway v R (1995) 184 CLR 19 as a:

“discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct”

31. However, the “Ridgeway” discretion has no relevance here because there is no suggestion that Constable Moriarty intended the outcome.

32. On behalf of the Mr Karlsson, considerable weight is placed on the decision of DPP v Carr (2002) 127 A Crim R 151 (“Carr”) which is said to be one of the leading authorities dealing with the operation of s 138.

33. Mr Carr had been arrested by police for offensive language. It turned out it was subsequently determined that that arrest was unlawful. Whilst in the dock at the police station, Mr Carr threatened the police in colourful language and suggested that he might “kill the police and their children.”

34. The Local Court Magistrate excluded the evidence of the threats because the Magistrate concluded that the words would never have been said if not for the arrest which the Magistrate concluded was unlawful.

35. On appeal, Smart AJ in the Supreme Court considered the matter and agreed with the Magistrate’s conclusion. His Honour said:

“A number of situations may arise. The person arrested may in a state of anger at his ill-advised arrest commit a serious crime, for example, attempted murder or maliciously inflict grievous bodily harm with intent to do so. In such a case, the evidence of those subsequent acts would be admitted. On the other hand, he may commit a relatively minor crime such as a mild assault or resist arrest. Further, he may, if moderately intoxicated, utter threats never intended to be carried out. There is also the example of a reaction at the police omitting to summon necessary medical or other attention when they should have done so.”

36. Unfortunately, his Honour did not explain why it was apparently so clear that evidence of an attempted murder, following a wrongful arrest, would always be admitted. Critically, he does not explain whether that is because the gateway contained in s 138 would not be opened because there is no causative connection between the illegality and the evidence of the murder, or whether as a matter of discretion such evidence would inevitably be ruled admissible even if by the route of the discretionary aspect of s 138.

37. His Honour also said at [68] that not all breaches of law (or improprieties) occurring as part of or prior to the obtaining of evidence will mean that evidence has been obtained for the purpose of s 138 and that “a question of degree is involved.” How that question of degree was to be judged was left an open question.

38. Adams J considered the matter in DPP v Coe [2003] NSWSC 363 where his Honour said:

“Where “real evidence” is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been “obtained” unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of “obtained”, almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences.”

39. His Honour also said that situations where a subsequent offence can be said to have been caused by the impugned conduct will be rare. He did not elaborate on what the “something more” might be.

40. The matter was again considered by Hall J in DPP v AM (2006) 161 A Crim R 219 (“AM”), where his Honour at [80] set out three potential propositions:

“(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been “obtained” in relation to them.

(b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected Offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe , as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest.

(c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so “obtained” for the purposes of s.138. Carr is such a case.”

41. Hall J concluded to the following effect at [82]:

“offences stemming from such an arrest occur without any intention on the part of the arresting officer to provoke such offences. It is, for that reason, that I cannot agree with Adams, J. that in such cases the word “obtained” cannot be satisfied unless the causal nexus is also accompanied by “something more” in the nature of “intended” conduct.”

42. By reference to the three potential scenarios identified by Hall J at [80] in AM, his Honour was ruling out, it seems to me, the second possibility, but leaving in play the final one being “offences that stem from an ill-advised and unnecessary arrest, that may objectively be considered the anticipated or expected outcome.” Hall J expressly said that Carr was such a case and said nothing to suggest that he thought the result in Carr was wrong.

43. Whilst none of this is entirely clear, in my view, the best synthesis of the various authorities I have referred to as to the proper construction of s 138 and its requirement for the evidence to be “obtained” or “in consequence of”, is that it is not enough to simply apply a “but for” test without limitation. To do so would, to my mind, do extreme violence to the words of the statute and produce many absurd outcomes which I do not think were the intention of the legislation. I do not consider it an answer to those potential absurd outcomes to say that they could all be dealt with by the exercise of discretion, if for no other reason that if that be the proper approach to the section, it really renders the gateway to the exercise of discretion otiose and simply gives to the Court a general discretion to exclude evidence that is of conduct that in any way followed, in the sense of occurred after an impropriety or illegality, which could be said would not have occurred but for the impropriety.

44. I think the better reading of Hall J’s decision in AM is that his Honour decided that in order for evidence to be “obtained” or to be “in consequence of”, it is necessary that the conduct (in this case the detention, the questions, and the attempt to search) be of a kind that would be objectively expected or anticipated to give rise to the commission of the further offences. His Honour explained his reference to “expectation” as an objective question of the likelihood of an event occurring. Or to put it in his Honour’s words:

“whether one thing might be expected to give rise to another is really an aspect that is related to causation – how likely is an arrest, for example, to give rise to particular conduct?”

45. This analysis seems to have been accepted by Bell J and the Victorian Supreme Court in DPP v Kaba (2014) 44 VR 526 at [473]-[479].

46. Upon that legal analysis as to the proper construction of s 138, I turn back to the facts of this case. I am satisfied, for reasons I have already given, that the detention and questioning of Mr Karlsson in the circumstances was improper and/or illegal by Constable Moriarty, albeit, at the time, Constable Moriarty honestly believed that what he was doing was lawful. It was the answer to those questions during the period of detention which became one of the ‘reasonable grounds’ relied upon to justify the search. This led to Constable Moriarty commencing his search, which in turn led to the conduct that is the subject of the relevant evidence.

47. The legal question is whether that impropriety or contravention of the law was the cause of the subsequent conduct, thus causing the evidence, the subject of objection. Applying a “but for” test with the limitation explained by Hall J in AM and asking myself the question, was the impugned conduct of Mr Karlsson conduct that might reasonably objectively be expected of a person in those circumstances. That is, a person being the subject of a personal body search by a police officer not co-operating with the process and swearing at the officer.

48. The facts are that Mr Karlsson did not cooperate in putting his hands in the right position, and the like, in the search and he swore at Constable Moriarty and used very extreme words but, it has to be said, did not say anything as abusive or threatening as was said by Mr Carr.

49. I am satisfied, applying that objective outer boundary to a “but for” test for causation under s 138, that the evidence of the resisting arrest and offensive language was obtained because of the conduct of Mr Karlsson which was the consequence of the illegality or impropriety that I have identified, and therefore the gateway to the discretion in s 138 is, in my opinion, opened. This is because I consider the reaction by Mr Karlsson to being searched was objectively something that could be expected.

50. I turn then to the exercise of discretion.

51. Taking into account the various matters mandated in the legislation, but also just stepping back and considering the matter in a commonsense way, it is true that the impropriety or contravention that I have identified would fall at the very bottom of the scale of potential improprieties and contraventions by police officers that can be contemplated. It is also true, and I should make clear in these reasons, that I accept unreservedly that Constable Moriarty was doing what he did in good faith and, at the time, honestly believed that he was properly exercising a power.

52. On the other hand, the offences for which Mr Karlsson has been charged, also fall towards the very lower end of conduct of the kind that might be caught by the section. At one level, the language used is on the borderline of what might be considered, in modern times, offensive. I am sure it did not actually offend Constable Moriarty but rather irritated him.

53. In all the circumstances I consider that the Magistrate made an error of law in determining that s 138 was not available and thus did not seek to exercise the discretion that ought to have been exercised.

54. Exercising that discretion for myself and observing that the Magistrate had no particular advantage over me because every finding of fact that I have proceeded on is a finding of fact that was made by the Magistrate, I think on balance there is really only one factor that favours the receipt of the evidence, and that is the probative value of the evidence. Obviously, without the evidence there is no case at all and therefore the evidence was not just probative, it was essential to the Crown’s case. However, balancing against that the nature of the offence, the gravity of the impropriety or contravention, accepting that it was not deliberate, and probably not reckless, but was nonetheless a mistake, I have concluded that the evidence should have been excluded from the hearing.

55. It is common ground that, without that evidence, the matters could not be proved.

56. For those reasons, I make the following orders:

57. Appeal allowed.

58. Set aside the orders of the Magistrate made on 9 August 2024, insofar as those orders relate to sequences 1 and 6.

59. In lieu thereof, make the following orders:

(i) Sequence 1, hinder police in the execution of duty, contrary to s 61AA Crimes Act 1900 (NSW) - find the Offender not guilty. (ii) Sequence 6, use offensive language in a public place, contrary to s 4A Summary Offences Act 1988 (NSW) - find the Offender not guilty.

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