Meredith v State of New South Wales (No 5)

Medium Neutral Citation: Meredith v State of New South Wales (No 5) [2025] NSWSC 1133

Hearing dates: 5 May 2025, 13-16 May 2025

Date of orders: 30 September 2025

Decision date: 30 September 2025

Jurisdiction: Common Law

Before: Yehia J

Decision: (1) Judgment for the plaintiff in the sum of $93,000 plus pre-judgment interest.
(2) Direct the parties to confer and agree as to the quantum of interest payable.
(3) Defer for later assessment the quantum of exemplary damages for the plaintiff.
(4) The defendant pay the plaintiff’s costs on the ordinary basis unless a party shows an entitlement to some other costs order.

Catchwords: TORTS – intentional torts – representative proceedings – strip searches at music festivals – cause of action for assault, battery and false imprisonment – lead plaintiff directed to take her clothes off and move her body parts and body to facilitate the search – where defendant changed its position weeks before the hearing date – where defendant now accepts the search was unlawful
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – the operation of ss 31, 32 and 33 of LEPRA – what is required to satisfy the preconditions of “seriousness” and “urgency” of the circumstances – whether the searching officers failed to comply with the safeguards afforded under ss 32 and 33 of LEPRA – whether there is an implied power to direct that a person being strip searched move their body and/or body parts to facilitate the search – whether “genital area” includes the anus for the purpose of s 32(6) of LEPRA
DAMAGES – whether the Limitation Act 1969 (NSW) bars the plaintiff from an award of aggravated and exemplary damages – whether the plaintiff is entitled to aggravated damages for the conduct of the proceedings – where the non-compliance with the LEPRA provisions resulted in egregious breaches by the searching police

Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(a), 11, 15B
Civil Procedure Act 2005 (NSW), ss 157, 166
Crimes (Forensic Procedures) Act 2000 (NSW), ss 17, 18, 20, 22, 23
Crown Proceedings Act 1988 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW), s 138(1)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 21, 21A, 27, 28, 30, 31, 31(a), 31(b), 32, 33, 99, 197, 198, 198A, 199, 201, 202, 203, 230
Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8
Limitation Act 1969 (NSW), ss 11(1), 14(1)(b), 18A, 50A, 50C
Uniform Civil Procedure Rules 2005 (NSW), rr 14.22, 14.23

Cases Cited: AD v State of NSW (2023) 308 A Crim R 367; [2023] NSWCA 115
Adams v Kennedy & Ors (2000) 49 NSWLR 78; [2000] NSWCA 152
Anderson v State of NSW; Perri v State of NSW [2023] NSWCA 160
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Attalla v NSW (2018) 28 DCLR(NSW) 337; [2018] NSWDC 190
Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198
Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314; [2008] HCA 9
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37
Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221; [1968] ALR 3
Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Bulsey v The State of Queensland [2015] QCA 187
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Carvana v State of New South Wales [2024] NSWSC 254
Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67
Clifton & Ors v Lewis [2012] NSWCA 229
Costa and Another v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714; (1988) 34 A Crim R 364
CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Daniel Fromberg v R (2017) 26 DCLR(NSW) 6; [2017] NSWDC 259
David Syme & Co Ltd v Mather [1977] VR 516
Dell v Dalton (1991) 23 NSWLR 528; [1991] NSWCA 76
Digital Pulse Pty Limited v Christopher Harris and Ors (2002) 166 FLR 421; [2002] NSWSC 33
Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980
Dowse v State of New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337
Fair Work Ombudsman v Hu (2019) 266 FCR 83; [2019] FCAFC 133
Fede v Gray by his tutor New South Wales Trustee and Guardian (2018) 98 NSWLR 1149; [2018] NSWCA 316
Fenton v Hampton (1858) 11 Moo PCC 347; (1858) 14 ER 727
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Hall v Fonceca [1983] WAR 309
Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026
Hrdavec v State of New South Wales [2022] NSWCA 52
Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336
Jamieson v R (1993) 177 CLR 574; [1993] HCA 48
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 Louis v Commonwealth (1987) 87 FLR 277 Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27 McLaughlin v State of New South Wales [2023] NSWDC 525 McLaughlin v State of New South Wales (No. 2) [2023] NSWDC 557 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 Meredith v State of New South Wales [2023] NSWSC 1546 Meredith v State of New South Wales (No.3) [2024] NSWSC 1499 Meredith v State of New South Wales (No.4) [2025] NSWSC 13 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453; [1999] FCA 1107 Owlstara v State of New South Wales (2020) 285 A Crim R 53; [2020] NSWCA 217 Payne v Parker [1976] 1 NSWLR 191 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Pham v Commissioner of Victim Rights [2019] NSWSC 1060 Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487; [2000] FCA 229 Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Pollack v Volpato [1973] 1 NSWLR 653 R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 R v Phillips (1971) 45 ALJR 467 R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales [2025] NSWDC 28 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134; [1980] HCA 49 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 State of New South Wales v Dennis [2025] NSWCA 118 State of New South Wales v Exton (2017) 270 A Crim R 182; [2017] NSWCA 294 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v McLaughlin [2024] NSWCA 137 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 State of New South Wales v Steven Charles Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 State of New South Wales v Williamson [2011] NSWCA 183 State of New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 TCN Channel Nine Pty Limited v Henry Alfred Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 The Korean Times Pty Ltd & Anor v Un Doc Pak [2011] NSWCA 365 Thompson v Goold & Co [1910] AC 409 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966] HCA 40 Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022] NSWSC 505 Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; [1920] HCA 75 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12 Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155; (1997) 144 ALR 695 Zaravinos v State of New South Wales; State of New South Wales & Ors v Zaravinos (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited: [Redacted]
Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis)
M2016-03-Model Litigant Policy for Civil Litigation and [Redacted]
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846
[Redacted]
Royal Commission into the New South Wales Police Service (Final Report, 1997) vol 2

Category: Principal judgment

Parties: Raya Meredith (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
K Nomchong SC with A Edwards (Plaintiff)
J Sexton SC with M Hutchings and C Langford (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2022/00214157

Publication restriction: Non-publication orders were made by Garling J on 21 March 2025 and by Yehia J on 5 May 2025.
Non-publication orders made on 21 March 2025
Plaintiff’s notice of motion dated 18 March 2025
…
3. The following material filed in relation to this motion:
a) the affidavit of Raya Meredith affirmed on 17 March 2025;
b) the affidavit of William Zerno affirmed on 18 March 2025 and its exhibit; and
c) the submissions of the Plaintiff served on 20 March 2025,
d) be subject to a non-publication order to prohibit or restrict the publication or other disclosure to the public in accordance with s 7 of the Court Suppression and Non-Publication Orders Act 2010 (the Act) on the basis that:
e) the order is necessary to prevent prejudice to the proper administration of justice (section 8(a) of the Act); and
f) the order is necessary to protect the safety of the plaintiff (section 8(c) of the Act).
4. Further to order 3, the following material at the trial of these proceedings:
a) paragraph 45 of the statement of Raya Meredith dated 21 November 2023; and
b) any further evidence adduced in cross examination or any oral or written submission or transcript concerning the subject matter of that paragraph,
be subject to a non-publication order to prohibit or restrict the publication or other disclosure to the public in accordance with s 7 of the Act on the basis that:
c) the order is necessary to prevent prejudice to the proper administration of justice (section 8(a) of the Act); and
d) the order is necessary to protect the safety of the plaintiff (section 8(c) of the Act).
5. Orders 3 and 4 are to operate until the conclusion of the proceeding, subject to further order.
6. Orders 3 to 4 are to apply throughout the Commonwealth of Australia.
Non-publication orders made on 5 May 2025

1. In respect of the following documents filed in these proceedings and listed in Attachment A:
   (a) NSW Police Notebooks;
   (b) NSW Police COPS Events;
   (c) NSW Police SITREP and After Action Reports;
   (d) Drug Registers;
   (e) Coronial Reports;
   (f) Complaints in Tab 428 of the Court Book
   the names of the Police Officers, save for the following:
   (i) SC Danielle George
   (ii) SC Todd Petrie
   (iii) SC Dave Jarnet
   (iv) Sgt Malcolm Kentwell
   (v) Detective Inspector Matthew Woods; and the names of all persons, other than the Plaintiff, listed in those documents be subject to a non-publication order to prohibit or restrict the publication or other disclosure to the public in accordance with s 7 of the Court Suppression and Non Publication Orders Act 2010 (the Act) on the basis that the order is necessary to prevent prejudice to the proper administration of justice (section 8(a) of the Act).
2. In respect of the witness statement of Raya Meredith dated 31 November 2023 (Tab 44 of the Court Book) the residential address and occupation be subject to a non publication order to prohibit or restrict the publication or other disclosure to the public in accordance withs 7 of the Court Suppression and Non-Publication Orders Act 2010 (the Act) on the basis that the order is necessary to prevent prejudice to the proper administration of justice (section 8(a) of the Act), and the order is necessary to protect the safety of the plaintiff (section 8(c) of the Act).
3. In respect of the witness statement of Sean Rood dated 8 December 2023 (Tab 45 of the Court Book) the residential address and occupation and paragraph 28 be subject to a non-publication order to prohibit or restrict the publication or other disclosure to the public in accordance with s 7 of the Court Suppression and Non-Publication Orders Act 2010 (the Act) on the basis that the order is necessary to prevent prejudice to the proper administration of justice (section 8(a) of the Act), and the order is necessary to protect the safety of the plaintiff (section 8(c) of the Act).

Judgment

Procedural history

Legal principles of general applicability

The onus

Inferences

The evidence

The events on 20 July 2018

Elements of the torts alleged

The position of the parties

The issues to be determined

Legal principles and interpretation – LEPRA

Powers of search – LEPRA

Suspicion on reasonable grounds

Necessity, seriousness, urgency

Sections 32 and 33 – safeguards

Additional issues

Is there an implied power to direct a person to move his/her body or body parts?

Does genital area include a person’s anal area?

Factual and legal contentions – the plaintiff’s search

Section 31(b)

Sections 32 and 33

Factual and legal contentions – damages

The Limitation Act Defence

Defendant’s submissions

Plaintiff’s submissions

Consideration of the Limitation Defence

Radford distinguished

Compensatory (general) damages

Aggravated and exemplary damages distinguished

Aggravated damages for assault and false imprisonment

Aggravated damages for the conduct of the proceedings by the defendant

Exemplary damages

Evidence relating to exemplary damages

Statement of Agreed Facts

Verified discovery

Documents relating to education and training in respect of relevant LEPRA provisions

Police Academy Training

Pre-LEPRA

Post-LEPRA

Mandatory continuing education

NSWPF Handbook and the Code of Practice for CRIME

Journal articles and newsletters

Operational orders, joining orders and instructional material in respect of music festivals

SITG 2018

SITG 2017

SITG 2016

SITG 2015

SITG 2014

Defqon 2018

Hot Dub Wine Machine Concert 2018

Harbourlife 2018

Defqon 2017

Midnight Mafia 2017

FOMO 2017

Subsonic 2016

Newcastle City This That 2016

Individual training of the relevant searching police officers

Senior Constable Danielle George

Post-2018

Senior Constable Todd Petrie

Post-2018

Senior Constable David Jarnet

Post-2018

Evidence relating to senior officers’ awareness of strip searches not being conducted in compliance with LEPRA

Mardi Gras 2013 and LLU Report

NSW Government response to the Coroner’s Inquest into the deaths of six patrons of NSW music festivals

Post-2018 improvements

Music Festival Fundamentals

SITG 2019

Harbourlife 2019

Field Day 2020

Person Search Manual

Summary of post-2018 improvements

Is the plaintiff entitled to exemplary damages?

To what extent do the improvements in training, education and supervision post-2018 mitigate the punitive and deterrent effect of exemplary damages?

Can the Court quantify and award exemplary damages at this stage having regard to the nature of the proceedings as representative proceedings?

Orders

Common Questions

Judgment

1. These are representative proceedings pursuant to s 157 of the Civil Procedure Act 2005 (NSW) (“CPA”). There is one lead plaintiff, Raya Meredith (“the plaintiff”). The plaintiff was strip searched by police on 20 July 2018 when she attended the Splendour in the Grass music festival at North Byron Parklands (“SITG 2018”). Two hundred and five person searches were conducted during the festival. Approximately one hundred and forty-three of them were strip searches.

2. The plaintiff was separated from her friends and partner and directed to a makeshift search area. A “person search” was conducted by way of a pat down. The plaintiff was then directed to pull down her top, exposing her breasts. The plaintiff told the searching police officer that she had inserted a tampon and that she was menstruating. She was directed to pull down her shorts and underwear and pull out her tampon. While naked from the waist down, she was directed to turn around and bend over. While in that position, a male police officer entered the “cubicle” (unannounced) to return the plaintiff’s bag. The plaintiff had no drugs in her possession. The strip search was unlawful. The defendant concedes that the strip search was unlawful. However, there remain several issues for resolution.

3. It is important to state at the outset that while the Court acknowledges the community’s interest in and concern about the potential for drug overdoses at music festivals, this case is not about harm minimisation policies or initiatives. Rather, the Court is required to consider the conduct of searching police officers by reference to the legal requirements, constraints and safeguards Parliament has seen fit to impose on the exercise of police powers in conducting strip searches. It also involves an assessment of the appropriate damages.

4. The proceedings are pursued on behalf of the plaintiff and those persons (“group members”) who:

(a) Attended a music festival within New South Wales held on or from 22 July 2016 (Festival); (b) While on the Festival grounds or surrounds, were stopped and directed by police officers to an area where searches were conducted; (c) Were subjected to a search by police officers which included one or more of the following:

(i) Being asked to remove some or all of their items of clothing, other than a coat or jacket or similar article of outer clothing or any gloves, shoes, socks, or hat; (ii) Police officers looking under a person’s clothing at that person’s body; and/or (iii) Police officers placing their hand(s) or finger(s) under a person’s clothing,

(hereafter, a strip search); and

(iv) That person was told by police officers or otherwise understood the strip search was conducted on the basis of a suspicion of possession of a prohibited plant or drug.

5. The claims of the plaintiff and the group members give rise to substantial common issues of law and fact.

6. At all material times the police officers who conducted searches and gave directions (“the searching police”), were members of and employed by the New South Wales Police Force (“NSWPF”). The searching police were, at all material times, pursuant to s 6 of the Law Reform *(*Vicarious Liability) Act 1983 (NSW), deemed to be persons in the service of the Crown.

7. Pursuant to s 8 of the Law Reform *(*Vicarious Liability) Act and the Crown Proceedings Act 1988 (NSW), the defendant is vicariously liable for torts committed by persons in the service of the Crown.

Procedural history

8. The following summary of the procedural history of this case does not include every application filed and heard during case management. Instead, this summary provides an overview of the history of the proceedings commencing in 2022.

9. The plaintiff commenced proceedings against the State of New South Wales (“the defendant”) alleging intentional torts of assault, battery, and false imprisonment. The original Statement of Claim (“SoC”) was filed on 21 July 2022.

10. On 29 September 2022, the defendant filed a Defence to the initial SoC. The defendant identified the searching police officers. The defendant did not admit to the characteristics of the group members.

11. The defendant did not admit that the strip search of the plaintiff was unlawful. The plaintiff’s pleadings regarding the strip search were either not admitted or denied. The defendant maintained that the strip search of the plaintiff was lawfully authorised pursuant to s 31(b) of the Law Enforcement *(*Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) because the searching police officer suspected on reasonable grounds that a strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary.

12. The defendant denied that any of the particularised conduct or other pleadings amounted to an assault, battery, or false imprisonment. The defendant did not admit or denied all paragraphs pertaining to the loss and damages claimed by the plaintiff. The defendant raised a defence pursuant to the Limitation Act 1969 (NSW) (“Limitation Act”) in respect of the claim for aggravated and exemplary damages.

13. On 2 November 2022, the plaintiff filed an Amended Statement of Claim (“ASoC”) pursuant to orders made by Garling J on 27 October 2022 granting leave for the plaintiff to do so. This ASoC had amendments only to the pleadings identifying those persons classed as a group member to the action, where a sub-pleading was removed.

14. On 23 November 2022, the defendant filed a Defence to the ASoC which included particulars as to the reasonable grounds and seriousness and urgency of the circumstances for the police powers exercised in respect of the plaintiff on 20 July 2018.

15. The factors which were commonly pleaded to have constituted reasonable grounds to stop, search, and detain the plaintiff included:

(a) Each officer’s personal experience in their role within the NSWPF. (b) The plaintiff’s attendance at a music festival in a location associated with common recreational drug use. (c) Information about drug use at the music festival in prior years. (d) A drug dog gave a positive indication that there was a prohibited substance in the air space around the plaintiff. (e) The officers’ assessment of the plaintiff’s conduct and responses leading up to and during their dealings. (f) Information that a subsequent officer had received from an officer who formerly interacted with the plaintiff.

16. Factors that were pleaded to have constituted reasonable grounds for the strip search were:

(a) The ordinary search did not yield any prohibited drugs where the officer had formed the view, based on the above grounds, that the plaintiff was likely to have drugs in her possession. (b) The officer’s assessment of the extent to which the plaintiff’s clothing or hairstyle would allow for a prohibited drug to be concealed even during an ordinary search.

17. The defendant pleaded that there was suspicion that the seriousness and urgency of the circumstances made the strip search necessary based on:

(a) The health risk to the plaintiff or others if a prohibited drug were to be ingested. (b) There would not be another opportunity for the officer to search the plaintiff before any prohibited drug would be ingested or disposed of. (c) There would be limited opportunity for other police officers to detect any prohibited drug on the plaintiff once inside the festival.

18. The defendant further pleaded that the suspicion of seriousness and urgency was reasonably held due to:

(a) The above-mentioned matters. (b) The seriousness at law of certain offences of drug supply and/or possession. (c) A history of recorded drug possession, use, supply, and overdoses at the Splendour in the Grass festival in previous years.

19. On 8 December 2022, the plaintiff filed a Reply to the Defence to the ASoC. The Reply denied that the factors relied upon by the defendant to justify the police officers’ conduct constituted reasonable grounds to exercise the respective powers conferred by LEPRA. The plaintiff pleaded that even in combination, the circumstances particularised by the defendant could not constitute reasonable grounds to exercise the power conferred by s 21 of LEPRA. With respect to the strip search, the plaintiff denied that the grounds relied upon were reasonable grounds to suspect that a strip search was necessary and that there was seriousness and urgency in the circumstances to make the strip search necessary.

20. The plaintiff denied that the limitation defence was made out. It was pleaded that the plaintiff’s claim for aggravated and exemplary damages did not “relate to the … personal injury of a person” within the meaning of s 11(1) of the Limitation Act.

21. On 27 January 2023, the defendant filed a Notice of Motion which sought an order, pursuant to s 166 of the CPA*,* that the proceedings no longer continue as representative proceedings under Pt 10 of the CPA. On 16 March 2023, the defendant’s Notice of Motion to declass the proceedings was heard by Garling J and judgment was reserved.

22. On 13 December 2023, Garling J made orders that the Notice of Motion seeking to declass the proceedings be dismissed with costs. Garling J found that there were likely to be common questions of fact or law raised by the proceedings and, if resolved, these would likely be applicable more broadly than just to the plaintiff alone: Meredith v State of New South Wales [2023] NSWSC 1546 (“Meredith”) at [63], [75], [82].

23. Contrary to the defendant’s submissions, Garling J held that given the estimated number of potential group members and the significant number of common questions of fact and law, the representative action was likely to be more effective, efficient and in the interests of justice than each claimant pursuing individual proceedings: Meredith at [71]-[77], [83]-[84].

24. On 30 March 2023, a Further Amended Statement of Claim (“FASoC”) was filed which included the subheading “Conduct of State Relevant to Exemplary Damages”. Under this subheading, the plaintiff pleaded that in the period from 22 July 2016 to 21 July 2022, most music festivals in NSW were policed by substantial detachments from the NSWPF for the purpose of, amongst other things, detecting prohibited substances. The plaintiff further particularised that between at least 2016 and 2019, the NSWPF carried out strip searches of attendees as a matter of routine rather than in circumstances lawfully justified by the provisions of LEPRA.

25. On 26 May 2023, the defendant filed a Defence to the FASoC addressing the pleadings under the subheading “Conduct of State Relevant to Exemplary Damages”.

Legal principles of general applicability

The onus

43. In the Amended Defence, the defendant makes a number of admissions but has not pleaded to particulars. There is no requirement to plead to particulars: Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026 at [43], citing Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75. I accept that the absence of a pleading specifically to an individual particular cannot be taken to be an admission.

44. The defendant does not by the Amended Defence seek to establish lawful justification for the conduct of the searching police officers. The defendant admits that the conduct was unlawful, and therefore tortious, and that the plaintiff is entitled to an award of compensatory damages. In the absence of a suspicion on reasonable grounds, compliance with the safeguards in ss 32 and 33 of LEPRA cannot establish lawful justification, thereby rendering unnecessary the plaintiff’s proof of any breach of those sections on the issue of liability. However, as will be seen, whether (and to what extent) searching officers breached ss 32 and 33 is relevant to the question of damages.

45. The onus is on the plaintiff to establish those factors relied upon to justify the quantum of compensatory damages sought and any additional award by way of aggravated or exemplary damages.

Inferences

46. It is uncontroversial that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970. The defendant is in the unique position to identify all relevant documents relating to systemic materials concerning the training and supervision of police officers in exercising their powers of search, and in particular, in conducting strip searches.

47. The plaintiff does not suggest that the absence of documentary evidence on any particular issue is sufficient to “convert conjecture and suspicion into inference”: Fair Work Ombudsman v Hu (2019) 266 FCR 83; [2019] FCAFC 133 at [56]; ASIC v Hellicar (2012) 247 CLR 345 at 412; [2012] HCA 17 at [165]-[166]. Rather, the plaintiff submits that in the absence of clear evidence from the defendant contradicting any inference which is available from the material relied upon by the plaintiff, for any particular fact in dispute, the Court may more readily draw the inference proposed by the plaintiff. That is a correct statement of principle.

48. Furthermore, an unexplained failure by a party to adduce evidence, which it may be expected to have been in that party’s interest to adduce, may lead to an inference that the evidence would not have assisted that party’s case: Jones v Dunkel (1959) 101 CLR 298 at 320-321; [1959] HCA 8. Inferential reasoning may involve a conclusion that it would be natural for one party to produce a witness, rather than the other. The natural inference occurs where the witness might be regarded as in the “camp” of one party so as to make it unrealistic for the other party to call him or her: Payne v Parker [1976] 1 NSWLR 191 at 201-202.

The evidence

49. The plaintiff’s account of the factual circumstances relating to the strip search is set out in her witness statement dated 21 November 2023. That account was not challenged in cross-examination. I make two observations in respect of the plaintiff’s witness statement. The first is that it should be taken as having provided a full account of her interactions with the searching police officers. In closing submissions, it was accepted on behalf of the defendant that the plaintiff’s statement was “a complete statement of the plaintiff’s evidence on these topics”.

50. The second observation relates to the defendant’s repeated submissions that the plaintiff’s statement “is silent” as to whether the searching police informed her that she would be required to remove clothing during the search or whether they informed her of relevant matters in compliance with the ss 32 and 33 safeguards. The defendant submits that the absence of a positive denial by the plaintiff means that “[t]here is no direct evidence to support a finding that this did not occur”.

51. This submission is misconceived. The plaintiff does not have to positively deny something to support a finding that it did not occur. The plaintiff’s account, as contained in her witness statement, attests to her interactions with the searching police officers. Those interactions did not include a conversation between the plaintiff and any of the searching police officers about the requirement to remove her clothing, the reason that she had to remove her clothing, or requests for her cooperation.

52. The plaintiff has not been challenged in respect of that account. It has not been put to her that the searching police officer informed her about the requirement to remove her clothing or informed her as to why it was necessary to remove her clothing. The plaintiff does not have to positively deny a proposition that something took place in order to establish that it did not. Rather, her witness statement, being a full account of her interactions with the searching police officers, encompasses the entirety of those interactions.

53. The plaintiff was called in the proceedings to give evidence about her claim for aggravated damages arising from the conduct of the proceedings. She was subjected to brief cross-examination on that discrete topic.

54. The plaintiff also relies upon the evidence of Sean Rood, which is contained in his witness statement dated 8 December 2023. Mr Rood is the plaintiff’s partner. His account is not challenged.

55. In addition, the plaintiff relies upon documentary evidence largely relevant to the claim for exemplary damages. The documentary evidence is made up of a large volume of material relating to the education and training of police officers including training in respect of person searches and strip searches (Exhibit 2).

56. The documents produced by way of discovery are set out in the affidavit of the plaintiff’s solicitor Rory John Walsh, dated 2 May 2025. They include documents under Discovery Category 7 which relate to “All training and education materials provided, prior to Splendour 2018, to those police officers who interacted with the Plaintiff at Splendour 2018 relating to: (a) person/general searches; (b) strip searches; and (c) use of drug detection dogs”. One hundred and forty-five documents responsive to Category 7 were provided by the defendant’s solicitors.

“was searched with nothing found

Primary reason:

SUSPECTED POSSESSION OF ILLEGAL DRUG

Additional comments:

DRUG DOG ‘SEEBY’ INDICATED POSSIBLE DRUG. POI SEARCHED BY S/C DANIELLE GEORGE. Nil find.

‘I had a smoke with a joint this morning’.”

68. There is no other record of the circumstances relating to the search of the plaintiff. There is no record of any observations by police about her appearance or demeanour. Other than the alleged representation noted above, there is no record of any conversation between any of the searching police officers and the plaintiff.

69. There is a factual dispute about whether the plaintiff made the representation “I had a smoke with a joint this morning”. That factual dispute can be conveniently dealt with now. Other than the notation in the notebook, which is repeated in the COPS event entry, SC Petrie had no recollection of the plaintiff or his dealings with her. I pause to observe that similar representations to that allegedly made by the plaintiff appear in seven separate entries in SC Petrie’s notebook between 12:00pm and 5:40pm in respect of different searches.

70. The plaintiff denies that she said the words attributed to her. In her witness statement, the plaintiff gave a full account of her interactions with police on 20 July 2018. The plaintiff stated that she was not under the influence of any drugs and that she had not been asked by a police officer if she had taken any drugs. That evidence is unchallenged. Furthermore, in her evidence before me, the plaintiff stated:

“… I didn’t say that so that’s putting words into my mouth, non-existent words and I don’t talk like that, I don’t articulate my words like that. That comes across as you know an old grandad who’s found his grandson’s marijuana stash in the garage. Those aren’t my words, I didn’t say that and that’s a lie.”

71. I have formed the view that the plaintiff is both a credible and reliable witness. She is supported by the unchallenged evidence of Mr Rood that neither he nor the plaintiff had consumed drugs. I have no hesitation in accepting the plaintiff’s account that she did not make the representation attributed to her in SC Petrie’s notebook.

72. Contrary to the defendant’s submissions, the plaintiff’s assertion that the words attributed to her are untrue do not constitute an express allegation of fraud or dishonesty falling into a “special status in civil litigation”. Furthermore, the determination of this factual dispute is not a positive finding that SC Petrie deliberately lied. It is an acceptance of the plaintiff’s evidence that she did not say those words. Given the number of searches conducted and the perfunctory record keeping, the inclusion of those words in SC Petrie’s notebook may simply have been a mistake.

73. There is no unfairness whatsoever to the author of the notebook entry. The defendant was well aware of the plaintiff’s position in light of the pleadings and the contents of her witness statement. Unsurprisingly, SC Petrie was not called by the defendant given his total lack of recollection about his interactions with the plaintiff.

74. Insofar as the searching police officers’ statements refer to their awareness of the LEPRA requirements or otherwise refer to their usual practice, the redacted versions of their statements in evidence are conspicuously silent as to what their usual practice was or their specific knowledge as to how the LEPRA provisions apply to strip searches.

75. The defendant has not called any witnesses. The defendant relies upon a number of documents including NSWPF training, educational, and operational materials (Exhibit 4).

76. As indicated earlier, the documentary evidence largely relates to the education and training of police officers generally and in respect of strip searches. That evidence is primarily relevant to the claim for exemplary damages and will be comprehensively summarised when I come to consider that claim.

77. A number of factual matters are agreed between the parties and are contained in the “Statement of Agreed Facts” (Exhibit 3). Although the defendant agrees with the facts contained in this document, this is not to be taken as agreement that those facts are relevant to any matter in issue in the proceedings. Those facts are relevant in large part to the claim for exemplary damages and will be reproduced in this judgment when I come to consider that issue.

78. In light of the way the matter has proceeded, the defendant does not dispute material aspects of the plaintiff’s account. To the extent that I am required to make factual findings about particulars of the plaintiff’s pleadings, I will do so in due course. For present purposes, I proceed on the following account of the interactions between the plaintiff and the searching police officers on 20 July 2018, which I have found established by the plaintiff.

The events on 20 July 2018

79. In July 2018, the plaintiff was 27 years old. The plaintiff has no criminal record and, before the events in question, had never been taken into police custody for the purpose of a search or for any other purpose.

80. Between 20 and 22 July 2018, SITG 2018 was held at North Byron Parklands in New South Wales. Police officers from various units attended including General Duties officers from across the Northern Region and the Drug Detection Dog (“DDD”) Unit.

81. The following diagram taken from the statement of Sgt Kentwell dated 28 March 2024 (with the red circle added by the plaintiff) provides a general reference to the location of the campground gate at which part of the DDD operation was deployed:

82. The DDD operation was staffed by approximately 60-70 police officers out of a total composite detachment of about 340 officers. Its target was “illegal drugs being supplied and used within the main entertainment and camping areas”. It can readily be inferred that police were deployed with an expectation that they would be conducting strip searches. This is made plain by the level of planning and the infrastructure that was put in place, including the DDD operation teams and setting up the Police Searching Area. The COPS entries for the festival also reveal that a pro-forma COPS event was developed, which further supports the inference that the NSWPF expected to be conducting searches.

83. On 19 July 2018, the day before the festival commenced, the plaintiff arrived and set up camp at North Byron Parklands with a large group of friends and her partner, Sean Rood. She had purchased a ticket for the event along with a camping ticket, the total cost of which was $552.57.

84. On the first day of the festival, between 11:40am and 12:00pm, the plaintiff approached the front entrance gate to the festival grounds with her friends and her partner. She was excited for the first day of the festival and was looking forward to seeing an artist who had been the 2018 Triple J Unearthed winner.

85. The plaintiff made her way to the entrance when she noticed a police dog near her. The police dog sniffed in the plaintiff’s direction before moving away from her. Shortly after, the plaintiff was stopped from entering the festival by a police officer. The officer tapped the plaintiff on her shoulder and said words to the effect of, “The dog has detected drugs on you. If you follow me, we need to conduct a search”. The plaintiff does not recall whether the officer identified himself by name, the name on the officer’s badge, or if he was wearing a badge.

86. In light of the fact that the searching police were in uniform there was no requirement for police to tell the plaintiff that they were police officers: s 202(1)(a) of LEPRA. Furthermore, the plaintiff cannot recall whether the officer identified himself by name. I cannot therefore make a positive finding that the officer did not inform the plaintiff of his name: s 202(1)(b) of LEPRA. For the reasons set out below I am satisfied that the searching police did not inform the plaintiff of the reason for the exercise of the power: s 202(1)(c) of LEPRA.

Female officer: “Do you have any drugs on you? If you have anything on you, now is the chance to hand it over”.

Plaintiff: “I do not have any drugs on me”.

90. The plaintiff does not recall if the officer identified herself by name, the name on the officer’s badge, or if the officer was wearing a badge. The Defence to the FASoC identified the female police officer as SC George.

91. An issue arises as to whether I can be satisfied that SC George has been correctly identified as the female police officer who conducted the strip search of the plaintiff. SC George made no notebook or COPS event entry in respect of the strip search of the plaintiff. The notebook entry made by SC Petrie does not refer to the name of the searching officer for the plaintiff (the only reference to SC George is in the COPS event entry). As noted earlier, SC Petrie’s notebook entry concerning the plaintiff was recorded as commencing at 12:20pm.

92. SC George’s notebook entries on the same day indicate that at 11:50am she was at Gate 4 with an “unknown … located on ground”. Immediately after is another entry in SC George’s notebook at 12:35pm with the details of a different person and at 12:43pm a further entry in relation to another person. The plaintiff submits that it is highly unlikely that SC George was the searching police officer, given that it is agreed upon that the detention of the plaintiff was 30 minutes and the timeline indicates that SC George was involved in another person’s search during that time.

93. The evidence as to the identity of the female officer is less than satisfactory. However, in my view, the identity of the female officer is not in itself significant. The pertinent matters relate to the interactions between the searching police officer and the plaintiff. I am prepared to proceed on the basis that it was SC George who conducted the strip search of the plaintiff.

94. The apparent inconsistency in the records highlights a larger problem relating to poor record keeping and in particular, the failure to record pertinent matters justifying the plaintiff’s strip search. That failure is telling and relevant to a broader issue. The absence of any reference to the statutory preconditions such as necessity, urgency, or seriousness, in the notebooks or COPS event entries discovered for SITG 2018, is one of several factors that demonstrates the extent of non-compliance on the part of searching officers.

95. The Statement of Agreed Facts (Exhibit 3) states that the entries in the police notebooks of every police officer who conducted a strip search at SITG 2018 were discovered by the defendant in these proceedings. None of the notebooks contained any entry identifying:

(i) Whether any consideration was given to what circumstances made a strip search necessary, following after or instead of a s 21 LEPRA person search; (ii) Whether, and if so what, there was any seriousness or urgency that rendered the strip search necessary; (iii) Whether any reasons for the strip search being conducted were provided to the individual being searched, before the search was conducted; and (iv) Whether any of the safeguards in ss 32 and 33 of LEPRA had been complied with.

96. This circumstance, taken together with other evidence, leads to the irresistible inference that the police officer who conducted the strip search did not turn her mind to the statutory preconditions under s 31(b) of LEPRA.

97. The female police officer began an ordinary person search of the plaintiff. She patted down the plaintiff by running her hands along the plaintiff’s outstretched arms and then along her body from torso to legs. The plaintiff was wearing a singlet top with her bare arms exposed. She was wearing high waisted three-quarter shorts that came to her knees, and boots. In conducting the pat down search, the female officer touched the plaintiff’s bare skin along her arms and on the lower half of her legs.

98. The officer directed the plaintiff to remove her shoes and socks. The plaintiff was then directed to pull down her top. She was not wearing a bra. She complied with the direction, pulling down her top and exposing her breasts. The police officer directed the plaintiff with words to the effect of, “Lift your breasts up, lean forward and then drop your breasts*”.*

99. The plaintiff complied with the direction and the female officer leaned down and looked at the area under the plaintiff’s breasts.

100. A further verbal exchange occurred between the female police officer and the plaintiff as follows:

Female officer: “Have you inserted anything?”

Plaintiff: “No, but I have a tampon in”.

Female officer: “If you’re lying, you will be kicked out of the festival”.

Plaintiff: “I am not lying. I am on my period”.

101. The plaintiff’s fear was heightened. She felt threatened. She did not want to be removed from the event. She believed that she must comply with the directions of the police officer. The plaintiff was extremely frightened that the police officer was going to perform a cavity search, and she recalled thinking, “I am going to have to let this woman insert her hands into my vagina or she is going to kick me out of the festival”.

102. Following this exchange the female police officer directed the plaintiff to remove her clothing from the lower half of her body, saying words to the effect of, “Pull down your shorts and your underpants”.

103. The plaintiff complied and pulled down her shorts and underwear. She recalled feeling disgusted that another woman was putting her through this. She felt like vomiting.

104. The female officer then said words to the effect of, “Pull out the tampon and show it to me”. The tone of the officer’s voice was commanding and even though the plaintiff was extremely upset and uncomfortable, she felt that she had no choice but to comply.

105. The plaintiff pulled slightly on the string of the tampon whilst the female police officer bent down and looked towards the plaintiff’s vagina. The plaintiff did not want to pull the tampon fully out of her body as she did not want blood to go everywhere. She felt degraded. The plaintiff was also postpartum at the time of the search.

106. With the plaintiff’s shorts and underwear around her knees, she was given further directions by the female officer to the effect of, “Turn around so that your back is towards me and bend right over”.

107. Whilst the plaintiff was bending over, a male police officer entered the cubicle, without warning, holding the plaintiff’s bag. He gave the bag to the female police officer and said words to the effect of, “Nothing found in the bag”. The plaintiff does not believe the male officer identified himself by name. The plaintiff does not recall the name on the officer’s badge or if he was wearing a badge.

108. The plaintiff felt “totally embarrassed and humiliated”. She scrambled to pull her underwear and shorts up so that she could cover herself. At this point the plaintiff was feeling angry and nauseous. She said something to the effect of, “I have nothing on me, can I leave?”.

109. The female police officer responded, saying something to the effect of, “No, you can’t leave yet. We have to take your details in case you get pulled aside for another search, which wouldn’t look good for you”.

110. The plaintiff scrambled to put her shoes and socks on. She felt dishevelled and rushed. She was directed out of the cubicle by the female officer who then directed the plaintiff to provide her driver’s licence to a male police officer. She complied and presented her driver’s licence to a police officer who recorded her details in a notepad. The plaintiff was then told she could leave the police inspection area and she entered the festival.

Elements of the torts alleged

115. The plaintiff alleges that the conduct of the searching police amounted to an assault, battery, and false imprisonment. The plaintiff alleges a battery constituted by the searching police officer conducting a pat down search of her body.

116. The particulars of the assault are as follows:

117. Being forced to go into the search area within the Police Inspection Area;

118. Being forced to remove her top, expose her breasts, and lift up her breasts for inspection by the female police officer;

119. Being forced to remove her outer clothes and underpants for inspection of her lower body by the female police officer;

120. Being forced to remove (or partially remove) a tampon from her vagina for inspection by the female police officer;

121. Being forced to turn around and expose her back and bare buttocks for inspection by the female police officer;

122. Being forced to bend over for inspection by the female police officer;

123. By the male police officer entering the cubicle while the plaintiff was partially bent over;

124. Being forced to dress herself in front of the female police officer;

125. Having her bag removed from her and taken out of her sight;

126. Being subjected to the strip search at the same time as she believed her bag was searched; and

127. Being forced to provide her driver’s licence to the police and have those details recorded.

128. The particulars of the false imprisonment, alleging that the plaintiff was completely deprived of her liberty for a period of approximately 30 minutes, are as follows:

129. For the duration of the period commencing with the plaintiff being directed to the Police Inspection Area by the police officer with the police dog to the time at which she was forced to go into the cubicle; and

130. Whilst the plaintiff:

(a) Was deprived of the possession of her bag; (b) Was being subjected to an ordinary search; (c) Was being strip searched.

3. For the period during which the plaintiff was forced to provide (and have recorded) her driver’s licence details until the time that she was directed to leave the Police Inspection Area.

4. The torts are admitted, and their elements are not in dispute. The elements, therefore, need only brief mention.

5. It is accepted that assault has two elements, namely, that the defendant’s conduct must be such as to cause the plaintiff to apprehend unlawful physical contact and the plaintiff must be put in apprehension of such unlawful contact: see R v Phillips (1971) 45 ALJR 467 at 472; Dowse v State of N**ew South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337 at [41].

6. Battery requires that a defendant directly causes physical contact with the plaintiff, unless the defendant proves that he or she was “utterly without fault”: Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21].

7. False imprisonment involves the unlawful arrest or detaining of any person: see Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714; (1988) 34 A Crim R 364. False imprisonment occurs where there is an intentional, total, and direct restraint on a person’s liberty. It is a tort of strict liability, in that intent is irrelevant: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 (“Ruddock”) at [140] (Kirby J in dissent, but not on this point).

8. Imprisonment includes circumstances where a person is led to hold a belief that if they attempted to leave, they would be compelled to remain: see Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 (“Watson v Marshall”). Relatedly, a person’s liberty is constrained where, while acceding to a police officer’s direction, he or she does so with a justifiable apprehension that refusal would be met with compulsion: State of New South Wales v Exton (2017) 270 A Crim R 182; [2017] NSWCA 294 at [40]-[46].

9. The defendant concedes that the plaintiff did not consent to being searched or strip searched. The plaintiff’s evidence that she believed she had to comply with the police officers’ directions is not disputed.

The position of the parties

124. The plaintiff’s pleadings allege that the strip search was not lawfully authorised by s 31 of LEPRA in that the searching police did not have reasonable grounds to suspect that the strip search was necessary for the purposes of the search and there was no seriousness and urgency of the circumstances which made the strip search necessary.

125. The plaintiff alleges that she was not informed prior to the strip search of the name of the police officer and their place of duty, the reason for the strip search, and that the plaintiff would be required to remove her clothing or why it was necessary to do so. The plaintiff also alleges that she was not asked for her cooperation.

126. The plaintiff further alleges that the strip search was not conducted in an area that provided reasonable privacy nor was it the least invasive kind of search practicable in the circumstances, involving a search of her genital area and breasts in circumstances where the searching officer did not have reasonable grounds to suspect that it was necessary for the purposes of the search. It is also alleged that the plaintiff was questioned during the strip search.

127. The plaintiff asserts that the police officers failed to comply with safeguards contained in ss 32 and 33 of LEPRA. In the absence of any lawful justification and in the absence of the plaintiff’s consent, the police officers’ conduct constituted a battery, assault, and false imprisonment.

128. The plaintiff does not claim personal injury damages within the meaning of Pt 2 of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”). Instead, the plaintiff claims compensatory damages, aggravated damages, and exemplary damages.

129. The claim for aggravated damages is twofold. First, there is a claim for aggravated damages relating to the special humiliation occasioned by reason of the unlawful and unjustifiable actions of the police officers during the strip search. Second, there is a claim for aggravated damages flowing from the conduct of the proceedings.

130. The plaintiff’s claim for exemplary damages, in part, relates to the conduct of searching police officers which is said to have been performed in contumelious disregard of the plaintiff’s rights and feelings. The essential proposition is that exemplary damages are warranted because senior officers failed to exercise reasonable care and skill to ensure that police officers were adequately trained and supervised in the performance of their duties (conducting strip searches) according to law.

131. The plaintiff pleads that exemplary damages are warranted to reflect society’s disapprobation of such conduct, to mark the Court’s condemnation of such behaviour and to act as a salutary deterrent.

132. The defendant admits that the searching police officer did not have reasonable grounds to suspect that the strip search was necessary for the purposes of the search. On that basis, the defendant admits the cause of action and accepts that the plaintiff was the victim of a battery, assault, and false imprisonment, entitling her to compensatory damages. However, in determining damages, the defendant disputes some of the contentions advanced by the plaintiff.

The issues to be determined

136. Although the defendant no longer disputes the plaintiff’s individual claim arising out of the strip search to which she was subjected on 20 July 2018, there remain factual and legal issues to be determined which include the following:

(a) The legal principles and the interpretation of relevant LEPRA provisions. (b) The factual and legal contest relating to the plaintiff’s claim for damages. (c) The answers to the common questions.

Legal principles and interpretation – LEPRA

Powers of search – LEPRA

137. To the extent that it is necessary to say so, the following analysis applies to police powers to conduct strip searches in the field.

138. LEPRA was assented to on 29 November 2002 and commenced in stages in 2004 and 2005. The Second Reading Speech to the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) sheds some light on the purpose of the legislation: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846.

“The bill represents the outcome of the consolidation process envisaged by the Royal Commission into the New South Wales Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights. This bill constitutes significant law reform. It radically simplifies the law in relation to law enforcement powers, setting out in one document the most commonly used criminal law enforcement powers and their safeguards. Previously complex and diverse law enforcement powers and responsibilities once buried in numerous statutes and casebooks have been consolidated into the bill so that the law is now easily accessible to all members of the community.”

139. Section 21 of LEPRA grants a police officer the power to stop, search, and detain a person if that officer suspects on reasonable grounds that the person has something in their possession or under their control which meets the criteria set out in the section. It provides:

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—

(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(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.

(2) A police officer may seize and detain—

(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(c) any dangerous article, and

(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

140. In the Second Reading Speech, s 21 is discussed in general terms as follows (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846):

“Part 4 of the bill details the powers of search and seizure without warrant. Police powers to conduct personal searches have been significantly simplified without reducing or increasing existing powers, so that police are able to readily understand the types of search that they may undertake, and the community can understand more readily the powers that police have in this respect. A regime of three tiers of searches has been adopted, and safeguards have been introduced to ensure that civil liberties are upheld and that the integrity of the police process is not compromised.”

141. The three-tiered personal search model included a regime of frisk, ordinary, and strip searches. The distinction between a frisk search and an ordinary search has since been removed.

142. It is apt to note that the Royal Commission into the New South Wales Police Service in 1997 came across “a number of incidents where private citizens were the subject of unlawful assaults and serious abuses of police powers”. The Royal Commission also observed that the powers entrusted to police are “very substantial”. The Royal Commission’s recommendations and findings included the consolidation of police powers in new legislation, with the following objectives:

● help strike a proper balance between the need for effective law enforcement and the protection of individual rights;

● assist in ensuring clarity in areas where uncertainty exists, and reduce the possibility of abuse of powers through ignorance; and

● assist in the training of police.

(Royal Commission into the New South Wales Police Service (Final Report, 1997) vol 2)

143. The overarching principles that apply to the construction of provisions of LEPRA recognise and emphasise two fundamental points. First, a strip search constitutes a highly invasive incursion on a subject’s personal liberty. Second, any power depriving the person of their liberty must be strictly construed: Zaravinos v State of New South Wales*; State of New South Wales & Ors v Zaravinos* (2004) 62 NSWLR 58; [2004] NSWCA 320 at [23] citing Williams v The Queen (1986) 161 CLR 278 at 292, 296; [1986] HCA 88 (“Williams v The Queen”) and Smith v Corrective Services Commissio**n *(*NSW) (1980) 147 CLR 134 at 139; [1980] HCA 49; George v Rockett (1990) 170 CLR 104 at 110-1; [1990] HCA 26 (“George v Rockett”); State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32.

Suspicion on reasonable grounds

144. Section 21 of LEPRA identifies the circumstances in which a police officer may conduct an ordinary search of a person without a warrant. Section 30 prescribes what a police officer may do in performing such a search. Importantly, s 21(1) requires the searching officer to hold a suspicion on reasonable grounds that one of the four circumstances in s 21(a)-(d) exist.

145. Section 31 of LEPRA provides additional requirements for the circumstances in which a strip search may be carried out. Relevantly, s 31(b) sets out the requirements for a strip search ‘in the field’ rather than an ‘in custody’ strip search provided for under s 31(a).

146. A strip search is defined in s 3 of LEPRA as follows:

3 Interpretation

…

strip search means a search of a person or of articles in the possession of a person that may include—

(a) requiring the person to remove all of his or her clothes, and

(b) an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

147. Section 31 provides as follows:

31 Strip searches

A police officer may carry out a strip search of a person if—

…

(b) in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

148. Suspicion on reasonable grounds is a requirement of both ss 21 and 31. It is a requirement that appears in a number of other LEPRA provisions, e.g., ss 11, 14, 22, 27, 36 and 37. The legal principles relevant to suspicion on reasonable grounds are well settled.

149. In R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540, Smart AJ (Spigelman CJ and Simpson J agreeing) summarised the legal principles relating to “reasonable suspicion” at [53] (albeit before the commencement of LEPRA):

“[53] These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(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.”

150. The principles applicable to the state of mind required to have reasonable grounds to either suspect or believe certain matters for the purpose of issuing a warrant or arresting a person may overlap: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336 at [15]. While suspicion may include an element of surmise or speculation, there must be a factual basis to ground the suspicion: State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [115]-[118]; George v Rockett at 112.

151. In Hrdavec v State of New South Wales [2022] NSWCA 52, the Court (Bell P, Basten and White JJA) reiterated that the test for establishing a “suspicion on reasonable grounds” involves both a subjective and objective element:

“[16] 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. 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.

[17] In State of New South Wales v Robinson the High Court accepted that the purpose of an arrest must be to bring the person before an authorised officer as soon as practicable to be dealt with according to law, an obligation found in s 99(3). The State had submitted that, because that purpose involved the more demanding test of reasonable and probable cause, that is, an honest belief in the guilt of the accused based on reasonable grounds, before a charge could be laid, it was not consistent with permitting arrest based on suspicion. Therefore the officer must be entitled to arrest without having an intention to charge the person with an offence. That argument was rejected by the majority in Robinson in the following terms:

‘[115] Reasonable suspicion requires an arresting constable to have reasonable grounds for suspicion of guilt. This is less than reasonable and probable cause for prosecution. The former is the necessary intention at the time of arrest. The latter is the necessary intention when making a decision to prefer a charge and then preferring it. Contrary to the submissions of the State of New South Wales, the requirement of an intention to charge at the time of arrest does not import, to the time of arrest, a requirement to have the mental state required at the time of charging. All that it means is that there is an intention to meet the requirements for charging at the time of charging, which is to take place as soon as is practicable after the arrest, unless it emerges after the arrest that there is not sufficient basis to bring a charge. And in that circumstance, the arrest should be discontinued pursuant to s 105.’”

(Footnotes omitted.)

152. A consideration of whether a police officer holds a suspicion on reasonable grounds involves a two-step process. Firstly, a police officer must have the relevant suspicion, that is, a subjective state of suspicion. Unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion will only be available where it can be shown that the suspicion was manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide: Minister for Immigration and Multicultural A**ffairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [133]; State of New South Wales v Randall [2017] NSWCA 88 at [13]; AD v State of NSW (2023) 308 A Crim R 367; [2023] NSWCA 115 at [25]-[28].

153. Secondly, the suspicion must be held on reasonable grounds. This second step imports an objective test. The answer to the question as to whether the suspicion was based on reasonable grounds is a binary one.

154. Accordingly, in order to meet the criteria provided for by LEPRA in respect of a strip search in the field on the grounds of suspected possession of a prohibited plant or drug, a police officer must:

155. Form a suspicion on reasonable grounds that the person has in his or her possession, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited plant or prohibited drug: s 21(1)(d), and

156. The police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search: s 31(b); and

157. The police officer must form the view that the seriousness and urgency of the circumstances make the strip search necessary: s 31(b).

158. Proceeding with a strip search without meeting these requirements would render the strip search unlawful. Section 31(b) is not merely an extension of s 21. A suspicion held on reasonable grounds that a person has in his or her possession or under his or her control a prohibited plant or prohibited drug, is not sufficient to enliven the power under s 31(b) to conduct a strip search of the person.

159. The police officer must separately turn his or her mind to whether there are reasonable grounds to render the strip search necessary for the purposes of the search and that the circumstances are sufficiently serious and urgent to make it necessary.

160. This statutory construction is consistent with the escalating tiered system of person searches provided for by LEPRA.

Necessity, seriousness, urgency

158. Both limbs of s 31(b) of LEPRA adopt the requirement of necessity. The police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search and necessary because of the seriousness and urgency of the circumstances. It is useful to consider other cases where the court has considered the meaning of “necessary” within the context of LEPRA provisions.

159. Section 99 of LEPRA deals with the power of police officers to arrest without warrant. The section was amended by the Law Enforcement *(*Powers and Responsibilities) Amendment *(*Arrest Without Warrant) Act 2013 (NSW). This amendment introduced the criterion of “reasonably necessary” to the section. Prior to the amendment, s 99(3) relevantly provided that a police officer must not arrest a person for the purposes of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the purposes set out in s 99(3).

160. In State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 (“Robinson”), the Court (Beazley P, Payne JA and Sackville AJA) considered the meaning of “necessary” in s 99(3) as follows:

“[37] The conditions specified in s 99(3) of the Act incorporate the word “necessary”, which is not a defined term. The primary judge found that in Tilse v New South Wales, Neilson DCJ had concluded:

‘… after an extensive review of the authorities concluded that that the word ‘necessary’ in s 99(3) must be construed to mean absolutely necessary rather than reasonably necessary.’

[38] Tilse concerned the construction of “necessary” in s 99(3) which was, at that time, in the same terms as it was at the time of Mr Robinson’s arrest. Neilson DCJ explained at [123] that:

‘The first thing to note is the use of the word ‘necessary’. A submission has been put to me as to how it ought to be construed. ‘Necessary’ is one of those words which in our language is an absolute: something is necessary or it is not; something is fundamental or it is not; something is basic or it is not; something is essential or it is not; something is unique or it is not. However, the words ‘reasonably necessary’ are sometimes used in statutes, and it is clear that when the adjective is modified by the adverb, ‘reasonably’, that the adverb modifies the absoluteness, or strictness, of the necessity.’

[39] Neilson DCJ referred at [126], to the decision of O’Keefe J in Elcham v Commissioner of Police (2001) 53 NSWLR 7; [2001] NSWSC 614. In that decision, O’Keefe J, at [57], considered circumstances where “necessary” had been construed as meaning “reasonably necessary”, in the context of the Liquor Act 1982 (NSW), and concluded, at [60], that “the word ‘necessary’ [in the section of the Liquor Act under consideration] … is not to be understood in the sense of essential or absolutely necessary.” The defendant in Tilse had used these remarks from Elcham in support of a submission that “necessary” in s 99(3) should be construed as meaning “reasonably necessary”. That submission was rejected, with Neilson DCJ concluding, at [128], that the word “necessary” should be construed “in its original, or primary meaning, that is, it must be necessary to do so, not that it is reasonably necessary to do so”.

[40] Neilson DCJ in Tilse rejected the contention that the word “necessary” was qualified by the word “reasonably”. Rather, it bore its ordinary meaning. We do not understand his Honour to have said that the word “necessary” in s 99(3) meant “absolutely necessary”, so as to imply some requirement additional to its ordinary meaning. If his Honour did so conclude he was in error.

[41] All definitions of “necessary” in the Macquarie Dictionary are directed to something required or indispensable or imperative. Thus, when used as an adjective, it refers to something “that cannot be dispensed with”; when used as a noun, its meaning is, “something necessary or indispensable or requisite”.

[42] The Shorter Oxford English Dictionary defines “necessary” to mean “that which is indispensable; an essential, a requisite”. In the online English Oxford Living Dictionary “necessary” is defined to mean “needed to be done, achieved … essential”.

[43] In our opinion, this last definition is the most apt to the meaning of “necessary” in s 99(3) in its form at the time of Mr Robinson’s arrest. That is, “necessary” means “needed to be done” or “required” in the sense of “requisite”, or something “that cannot be dispensed with”, to pick up the language in the other two dictionaries, for one or more of the purposes specified in the sub-section. Given that meaning of “necessary” we agree, as was submitted by the State, that properly construed, the correct test for s 99 is that for which the State contended and which is set out above at [27].”

161. In Owlstara v State of New South Wales (2020) 285 A Crim R 53; [2020] NSWCA 217, the Court (Meagher JA, Basten JA and Emmett AJA agreeing) endorsed the definition of necessary set out in Robinson, summarising the test in s 99(3) (prior to the amendment of s 99) as follows:

“[40] Subsection (3) requires first, that Constable Hurtak had a suspicion that the arrest was necessary for one or more of the purposes in pars (a)-(f), and secondly, that he had reasonable grounds for that suspicion: State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [34] (Beazley P, Payne JA and Sackville AJA).

[41] To say that there are reasonable grounds for a suspicion is to say that those grounds would be sufficient to induce that suspicion in the mind of a reasonable person: George v Rockett (1990) 170 CLR 104 at 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 26. What is required to satisfy such a qualifying condition (albeit as to whether a person “has reasonable grounds for believing”) is summarised succinctly by Gageler J in Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [24]. A suspicion is only an actual apprehension or fear, more than possibility but short of belief, but what must be suspected is that arrest is necessary in the sense of “required” or “cannot be dispensed with”: Robinson at [43].”

162. The amendment to s 99 of LEPRA (by adopting a “reasonably necessary” criterion), demonstrates a choice by Parliament to dilute the previous requirement. Given that Parliament made that choice, the notion of being appropriate and adapted to achieve one or more of the identified reasons is an apt way to articulate what is now conveyed by “reasonably necessary” in s 99(1)(b): State of N**ew South Wales v Dennis [2025] NSWCA 118 at [38]-[39]; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39].

163. By contrast, s 31(b) of LEPRA retains the requirement of necessity, undiluted, under both limbs. Given the highly intrusive and invasive nature of strip searches, it is correct to construe “necessary” in the context of s 31 as meaning “needed to be done”, “required”, or something “that cannot be dispensed with”: see Robinson at [43].

164. The phrase “seriousness and urgency” has not been explicitly judicially considered or defined in any legislative context that I have been able to find. The Macquarie D**ictionary, online ed, definition of “serious” includes, “of grave aspect”, “weighty or important”, and “giving cause for apprehension; critical”. The Macquarie D**ictionary, online ed, definition of “urgent” includes, “pressing; compelling or requiring immediate action or attention; imperative”.

165. Although “seriousness and urgency” of the circumstances is a threshold requirement for the exercise of other statutory search powers, those terms are not defined in LEPRA or in any other legislation in other Australian jurisdictions where the phrase appears, and no guidance is afforded as to what sort of circumstances will meet this additional threshold.

166. In a commercial context, Ward CJ in Eq considered the meaning of “urgent” in the context of urgent injunctive or declaratory relief, in CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798 as follows:

“[105] As to the meaning of “urgent”, RdE notes that in Green v Econia Ptv Ltd [2016] SASC 153 at [23], the Court held that a matter is “urgent” if it has “the quality of requiring immediate attention”; and that in CPB Contractors Pty Ltd v JKC Australian LNG Pty Ltd [2011] WASC 112 at [37], the Court described an “urgent” matter as one that is “pressing; compelling or requiring immediate action or attention”.”

167. Similarly, in WCX M4-M**5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd *(*No 2) [2022] NSWSC 505, Rees J held as follows:

“[138] Section 9 of Schedule 3 to the D&C Deed requires that the interlocutory relief be “urgent”. Whether the relief sought is, in fact, urgent is a matter to be determined objectively: AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR 22; [2010] VSCA 37 at [27] (per Buchanan JA, Bongiorno JA and Croft AJA). Were it otherwise, the parties’ preference that their disputes be decided by expert determination or arbitration “may be set at nought” if the ability to seek interlocutory relief is not limited to cases which are in fact urgent: AED Oil at [28]. AED Oil was followed in Green v Econia Ptv Ltd [2016] SASC 153, where Dart J added, “For a matter to be urgent, it must have the quality of requiring immediate attention”: at [23]. In CPB Contractors Pty Ltd v JKC Australian LNG Pty Ltd [2017] WASC 112, Le Miere J considered an “urgent” matter to be “pressing; compelling or requiring immediate action or attention”: at [37]; followed by Ward CJ in Eq in CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798 at [105], [119].”

168. As noted above, the notebooks and COPS event entries of searching police officers at SITG 2018 are completely silent in relation to the circumstances that made the strip search necessary or any identification of the seriousness and urgency of the circumstances. The evidence therefore sheds no light on how the searching police officers themselves construed those requirements or the factors that satisfied those requirements as they perceived them. Indeed, the complete absence of notes relating to the issue of seriousness and urgency of the circumstances, leads me to the irresistible conclusion that the searching police officers did not turn their minds to those legal requirements, or, if they did, wrongly understood that the mere indication by Seeby was sufficient to undertake a strip search. That conclusion is relevant not only to the question of aggravated damages, but also to the issue of whether there was an “abject failure” by senior police officers to train, educate, and monitor the exercise of police powers in respect of conducting strip searches. I will return to this question in due course.

169. The defendant relies upon statistics collated following various music festivals in the period between 2016 to 2022 (MFI 11). The statistics are in respect of the number of arrests for possession and supply of prohibited drugs; the types of drugs seized; the number of attendees that were conveyed to hospital for suspected drug overdoses; and deaths occasioned by drug use at the event.

170. By way of example, at the “Midnight Mafia” music festival held in 2018, three people were conveyed to Concord Hospital for drug overdoses, with one reported as being in a critical but stable condition. On 3 November 2018, at the “This That” music festival at Wickham Park, drug use caused two deaths and 13 presentations at Nepean Hospital. A complete account of the relevant statistics is helpfully set out in MFI 11.

171. There is no question that these deaths and overdoses (short of causing death) are matters of grave concern to the community. It must also be acknowledged that harm minimisation is a profoundly important issue for the Government, various institutions (such as the NSWPF), and the community more generally. The statistics cited are highly relevant to policy considerations about harm minimisation initiatives. However, they are not by themselves sufficient to satisfy the requirements of “seriousness and urgency”.

172. Parliament has seen fit to impose strict legal requirements and safeguards on the exercise of police powers in conducting strip searches. No doubt, the decision to do so has been informed by recognition of the intrusiveness of strip searches and the humiliation, degradation, and trauma experienced by individuals subjected to them. The requirements mandated by s 31(b) are not met by simply relying upon contextual matters such as the number of arrests, overdoses, or deaths at other music festivals on different occasions. It is not enough for an officer to merely rely on their general experience and understanding that patrons at music festivals may possess or conceal drugs on their bodies.

Sections 32 and 33 – safeguards

178. Further, a lawful exercise of the power to conduct a strip search must adhere to the requirements and safeguards set out in ss 32 and 33, as far as is reasonably practicable. Those sections provide:

32 Preservation of privacy and dignity during search

(1) A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.

(2) The police officer must inform the person to be searched of the following matters—

(a) whether the person will be required to remove clothing during the search,

(b) why it is necessary to remove the clothing.

(3) The police officer must ask for the person’s co-operation.

(4) The police officer must conduct the search—

(a) in a way that provides reasonable privacy for the person searched, and

(b) as quickly as is reasonably practicable.

(5) The police officer must conduct the least invasive kind of search practicable in the circumstances.

(6) The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.

(7) A search must be conducted by a police officer of the same sex as the person searched.

(7A) However, if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is—

(a) of the same sex as the person to be searched, and

(b) of a class of persons prescribed by the regulations for the purposes of this subsection.

The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.

(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.

(8A) Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.

(9) A person must be allowed to dress as soon as a search is finished.

(10) If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.

(11) In this section—

questioning of a person means questioning the person, or carrying out an investigation (in which the person participates).

33 Rules for conduct of strip searches (cf Cth Act, s 3ZI)

(1) A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—

(a) the strip search must be conducted in a private area,

(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,

(c) except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.

(2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.

(3) A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted—

(a) in the presence of a parent or guardian of the person being searched, or

(b) if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.

(3A) Subsection (3) does not apply if a police officer suspects on reasonable grounds that—

(a) delaying the search is likely to result in evidence being concealed or destroyed, or

(b) an immediate search is necessary to protect the safety of a person.

In such a case, the police officer must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched.

(4) A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.

(5) A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(6) A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(7) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.

(8) This section is in addition to the other requirements of this Act relating to searches.

(9) In this section—

impaired intellectual functioning means—

(a) total or partial loss of a person’s mental functions, or

(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(c) a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.

Note.

Procedures for searches of a more invasive nature are dealt with under the Crimes (Forensic Procedures) Act 2000.

179. Section 32 is concerned with the preservation of privacy and dignity during a search, requiring a police officer to conduct the least invasive kind of search reasonably practicable in the circumstances. Section 33 provides the rules that must be complied with, as far as is reasonably practicable, for the conduct of strip searches. Those rules prohibit a search of a person’s cavities or an examination of the body by touch.

180. Sections 32 and 33 are framed in mandatory terms so that a police officer who searches a person mus**t, as far as is reasonably practicable in the circumstances, comply with the sections. Where non-compliance with the safeguards is established by the plaintiff, it is for the defendant to establish that compliance was not reasonably practicable in the circumstances.

181. To be clear, non-compliance with s 32 and/or s 33 renders a strip search unlawful, unless it is established that compliance was not reasonably practicable in the circumstances. I agree with the plaintiff’s submission that, assuming reasonable practicability is established in respect of the requirements to which it applies, the outcome is a binary proposition. It is not a question of degree, rather it is one of compliance or non-compliance, lawfulness or not.

182. I have come to this view for the following reasons. First, on their plain terms, ss 32 and 33 are mandatory additional requirements to the exercise of power pursuant to s 31. Section 33(8) reinforces that s 33 (and the rules outlined therein) is “in addition to the other requirements of this Act relating to searches”.

183. Second, this construction of ss 32 and 33 is consistent with existing authority that not only is compliance with each subsection required (as far as is reasonably practicable) but the failure to do so is not a mere technical breach: see Attalla v NSW (2018) 28 DCLR(NSW) 337; [2018] NSWDC 190 at [99]; Daniel Fromberg v R (2017) 26 DCLR(NSW) 6; [2017] NSWDC 259 at [37]-[45], [48].

184. Third, the circumstances justifying a strip search should be construed narrowly and consistently with ss 3, 31, 32, and 33. This approach is consistent with the ordinary approach to interpreting a power given by statute to deprive a person of a significant civil liberty. In Williams v The Queen at 292, Mason and Brennan JJ quoted from Cleland v The Queen (1982) 151 CLR 1 at 26; [1982] HCA 67 (“Cleland v The Queen”) as follows:

“It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.”

185. Although the High Court was dealing with police powers in the context of arrest and detention, the principle is equally applicable to the exercise of power by police officers conducting strip searches.

186. Fourth, this construction is consistent with the function and purpose of ss 32 and 33 as statutory guardrails to the exercise of invasive powers. The Second Reading Speech to the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) is unambiguous in respect of the intention and purpose of ss 32 and 33 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 September 2002 at 4847):

“The bill introduces safeguards intended to preserve the privacy and dignity of all persons subjected to personal searches under the bill. Clause 32 incorporates a number of safeguards intended to ensure that a police officer conducting any search has regard to the searched person's right to privacy and maintenance of dignity throughout a search. The police officer must comply with the safeguards set out in section 32, unless it is not reasonably practicable in the circumstances to do so. What is reasonably practicable in the circumstances will, of course, be dependent on the individual circumstances. These safeguards require the officer to inform the person of the nature of the search, request their co-operation, conduct the search out of public view and as quickly as possible, and not to question the person searched at that time in relation to a suspected offence.

Clause 33 provides specific safeguards for a person subjected to a strip search. The safeguards in subclauses (1) to (3) of clause 33, which relate to privacy, the absence of people not necessary for the purpose of the search and the presence of support persons, must be complied with unless it is not reasonably practicable in the circumstances. Clause 33 (3) provides for the presence of a support person for children aged between 10 and 18, and persons who have impaired intellectual functioning who are subjected to strip searches. This provision has been included to protect the interests of those who may not be able to protect their own interests, and may also assist police in the conduct of the strip search. The safeguards in subclauses (4) to (6) of clause 33, are without exception, mandatory and clarify that a strip search is, in fact, a visual search and not an examination of the body by touch. Clause 34 provides that a child under 10 may not be strip searched. The safeguards in division 4 are in addition to safeguards in part 15 that apply generally across the bill. The safeguards better define what a police officer can do when conducting a search, and ensure the integrity of the criminal justice processes.” (Emphasis added.)

187. In light of the mandatory terms in which the requirements in ss 32 and 33 are framed (assuming compliance is reasonably practicable), the categorisation of a breach as “minor” does not render unlawful conduct, lawful. Instead, it may be that an illegality by reason of a “minor” breach would sound in nominal damages or no award of damages. In a criminal case, it may result in the desirability of admitting the evidence outweighing the undesirability of admitting the evidence: s 138(1) of the Evidence Act 1995 (NSW).

Additional issues

Is there an implied power to direct a person to move his/her body or body parts?

188. A question arises in these proceedings about whether there is an implied power for police officers to direct a person to move his/her body or to manipulate by touch his/her body parts to facilitate a visual inspection during a strip search.

189. It is necessary to observe at the outset that police can request a person to move or manipulate their body in a particular way to facilitate a visual search. The person being searched can choose to comply with such a request. This is distinct from an implied power to direct a person to move or manipulate their body, which carries with it consequences arising from non-compliance, such as empowering the police officer to use force.

190. The defendant contends that by necessary implication, a police officer may direct or force a person subject to a search to move his/her body and to touch or interact with his/her naked body to facilitate a visual inspection during a s 31(b) strip search.

191. In support of that contention the defendant relies upon Pelechowski v Registrar, Court of Appeal *(*NSW) (1999) 198 CLR 435; [1999] HCA 19 (“Pelechowski v Registrar”) where Gaudron, Gummow and Callinan JJ, referring to “the principle that a grant of power carries with it everything necessary for its exercise”, explained at [51] that:

“The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement … In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness.” (Footnotes omitted.)

192. However, it is worth noting that Pelechowski v Registra**r concerned an action to recover a sum of money owed under a loan agreement. The relevant power in question was the power of the District Court to make an order after judgment restraining the judgment debtors from dealing with their property. The case did not involve a grant of power that infringed on an individual’s liberty of the person.

193. This principle that a grant of power carries with it everything necessary for its exercise must be applied with caution in cases where its application impacts adversely on the interests or liberty of the person. In Fenton v Hampton (1858) 11 Moo PCC 347 at 360; (1858) 14 ER 727 at 732, Fleming CJ said:

“Whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing that something else, or even going a step farther, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention, unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus”.

194. The plaintiff relies on Thompson v Goold & Co [1910] AC 409 at 420 where Lord Mersey held as follows:

“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.” (Emphasis added.)

195. This passage was cited with approval by the High Court in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314; [2008] HCA 9 at [44].

196. During oral submissions, the plaintiff also referred to seminal cases on the general principles of statutory interpretation. In Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198, in the context of construing provisions of the Crimes (Appeal and Review) Act 2001 (NSW), the Court of Criminal Appeal (comprised of Bathurst CJ, Hoeben CJ at CL and McCallum J) conveniently summarised the principles as follows at [134]-[136]:

“[134] The relevant principles of statutory construction are well-established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky), the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, with the meaning of the provision to be “determined by reference to the language of the instrument viewed as a whole”. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. They also emphasised at [71] that a court must strive to give meaning to every word of a provision.

[135] In Alcan *(*NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the “language which has actually been employed in the text of legislation is the surest guide to legislative intention”, but that the “meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the “purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction”.

[136] However, as was emphasised in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL), the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]:

‘[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected’

See also Gageler J at [35]-[39]; Interpretation Act 1987 (NSW) s 33.”

197. In Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27 (“Marshall v Watson”), the High Court dealt with the issue of whether there was an implied power of arrest and detention under the Mental Health Act 1959 (Vic) (“Mental Health Act”). It was clear that the respondent was mentally unwell and had to be admitted to a psychiatric hospital for observation. The respondent was taken to hospital in a police car with the appellant and other police officers. He was admitted to the hospital, examined, treated, and detained for some six days. The respondent subsequently claimed damages for trespass to his person, such trespass being his imprisonment and detention in the police car during its transit of some three miles from his rooms to the hospital.

198. Although the appellant was found to have acted bona fide, believing that he was acting under the authority of the Mental Health Act, the primary judge held that upon its true construction, the Mental Health Act did not give the appellant any authority to take the respondent to the hospital.

199. In dismissing the appeal, the High Court found that there was no room in the legislation to imply an authority in any particular person or class of persons to exercise a power of arrest or detention. Barwick CJ at 644 found that “the case is one in which a necessary element in the statutory scheme has been omitted by the legislation, and that gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power”. In the interpretation of a statute affecting personal liberty, “supposition as to the intention of the Legislature had no place, the function of the Court being limited to interpreting and giving effect to the Legislature’s will as expressed in the statute”: Marshall v Watson per Stephen J at 649.

200. In Carvana v State of New South Wales [2024] NSWSC 254, the plaintiff claimed damages for false imprisonment, malicious prosecution, and trespass to goods. The claim arose out of the plaintiff being arrested, charged, bailed, and then dealt with in the Local Court. One of the questions in that case was whether the seizure and retention of the plaintiff’s phone by police officers was lawful under s 21(1)(b) of LEPRA. In construing s 21 of LEPRA, Wright J held as follows:

“[172] In my view, given the text of s 21, its context (including Div 4 of Pt 4 and the definition of “strip search”) and the purpose of the legislation being to regulate the exercise of powers by law enforcement personnel and “to set out the safeguards applicable in respect of persons being investigated for offences”, as disclosed in the preamble, “search … a person” in s 21 should be construed relatively narrowly and consistently with ss 29, 30 and 32 as referring to examining carefully a person, including his or her outer clothing or other body covering found on the person but not body cavities, for things which are concealed or not obviously apparent. Merely locating something because it is handed to the relevant person when there is no such examination does not amount to a search within the meaning of the section.” (Emphasis added.)

201. In Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales [2025] NSWDC 28, Newlinds SC DCJ, in considering the operation of s 30 of LEPRA, was of the view that although the section did not include any express provision for a police officer to give directions to a person, there was an implicit power to give reasonable directions to the person being searched, so as to allow the search to take place in a “safe and reasonable manner”: at [204]. The circumstances involved an ordinary search (under s 21) in which the person being searched was directed to face the wall and place his hands on it. The plaintiff in that case refused to comply and was handcuffed.

202. His Honour was not dealing with a strip search and in any case the implied power was limited to giving reasonable directions to allow the search to take place in a safe manner. It is not authority for the proposition that broader implied powers should be read into LEPRA.

203. As will be seen from the overview of the relevant provisions, Parliament did not inadvertently or unintentionally omit a power reasonably necessary for the enforcement of search powers. If anything, an examination of LEPRA provisions demonstrates that Parliament comprehensively considered the grant of powers to police, including the power to strip search individuals and the ancillary powers and safeguards necessary to enforce the search powers.

204. LEPRA provides express powers to police officers to give directions. By way of example, Pt 14 of LEPRA deals with powers to give directions. Sections 197-198A give police the power to give a direction in specific circumstances. Section 199 makes it an offence to refuse or fail to comply with such a direction. Part 15 of LEPRA specifies safeguards relating to the police powers set out in s 201 (including a power to give or make a direction per s 201(1)(f)). Section 203 of LEPRA requires a police officer exercising a power under Pt 14, to warn the person subject to the exercise of the power that the person is required by law to comply with the direction.

205. Part 4 of LEPRA deals with search and seizure powers without warrant. Section 21 empowers police officers to search persons and seize and detain things without a warrant. The ancillary power to search persons is expressed in s 21A of LEPRA. If a police officer suspects on reasonable grounds that a thing referred to in s 21(1)(a), (b), (c) or (d) is concealed in the person’s mouth or hair, the police officer has the power to require the person to do certain things including open his/her mouth, or shake, or otherwise move his/her hair.

206. Section 27 of LEPRA deals with the power to carry out a search on arrest. Section 28 provides ancillary powers to conducting a search of a person under s 27 which are similar to the ancillary powers under s 21A.

230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

211. Section 230 therefore provides for the use of force by a police officer where reasonably necessary to do so, in order to exercise a lawful function, either expressly or impliedly provided for at law. The purpose of s 230 is to authorise conduct which would otherwise be unlawful, in the sense that if a police officer establishes that they have used such force as is reasonably necessary to exercise a function, then the exercise of that function is lawful: Pham v Commissioner of Victim Rights [2019] NSWSC 1060 at [22]-[23]. “Reasonably necessary” for the purpose of s 230 has been held to import the test of whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented: Director of Public Prosecutions *(*NSW) v Greenhalgh [2022] NSWSC 980 at [186].

212. Notwithstanding that LEPRA is replete with ancillary powers, it does not provide express or ancillary powers to direct or force an individual to move his/her body or body parts to facilitate a visual inspection during a strip search.

213. LEPRA does expressly prohibit a search of a person’s cavities and an examination of the body by touch: s 33(4). Relevantly, s 33(4) does not prohibit a police officer from touching a person in connection with a search. For example, a police officer may have cause to touch a person to get their attention or to guide them to a particular search area. Minor touching for these purposes would not render a search unlawful. However, a police officer is expressly prohibited from conducting an examination by touch which would extend to moving or positioning a person’s body or body parts to facilitate an inspection or examination of that person during the strip search.

214. To construe the legislation as including an implied power for police officers to direct a person being strip searched to move their body to facilitate a visual inspection of the genital area or to direct a person to otherwise touch or interact with their body to facilitate a visual inspection during the strip search, necessarily empowers a police officer to use such force as is reasonably necessary to exercise that function: s 230. That would mean that a police officer, in the face of non-compliance with the direction, could use force as is reasonably necessary to enforce the direction including forcibly moving the person’s body or body parts to facilitate the inspection, thereby conducting an examination by touch. The use of force in this context would be entirely inconsistent with the conduct expressly prohibited by s 33(4) of LEPRA. While the plaintiff submits that a general power such as that set out in s 230 might “yield” to the specific prohibition in s 33(4), the defendant contends that the prohibition on touching would give way to the general use of force in s 230.

215. The power to direct a person being searched in the way contended for by the defendant has been omitted by the legislation and “that gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power”: at 644. The courts ought to be reluctant to imply a power which adversely impacts upon a person’s liberty.

Does genital area include a person’s anal area?

220. Section 32(6) of LEPRA provides that a police officer must not search the “genital area of the person searched, or in the case of [a] female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search”. “Genital area” is not defined in LEPRA.

221. A person’s “genital area”, as a matter of anatomy, does not include a person’s anus. While the anus and genitals are both located in the perineum area, they are anatomically distinct and serve different functions. Furthermore, a distinction is drawn between the anus and genitalia in other legislation (e.g., s 61HA of the Crimes Act 1900 (NSW)).

222. However, in the specific statutory context of LEPRA, it would be incongruous to construe s 32(6) as requiring suspicion on reasonable grounds that it is necessary to do so in order to conduct a search of a person’s genital area and breasts (in the case of a female) but not the person’s anal area. It seems to me that a person’s “genital area” as used in s 32(6) of LEPRA, must include the anus as a matter of common sense and ordinary construction. Section 32 is concerned with preserving privacy and dignity during a search. Section 32(6) therefore sets out private parts of the body that are particularly invasive to search.

Factual and legal contentions – the plaintiff’s search

Section 31(b)

223. The paucity of records in respect of the search of the plaintiff has already been referred to. The only record of the search of the plaintiff is that contained in SC Petrie’s notebook (which appears to be a contemporaneous entry) and the COPS event entry made almost eight hours after the search was conducted. As already alluded to, the defendant has called no witnesses and the only evidence from the three police officers who were purportedly involved in the search of the plaintiff is that they have no recollection of the plaintiff or of the search.

224. There is no evidence (even accepting that SC George was the female police officer who strip searched the plaintiff) that the female officer independently formed a reasonable suspicion as required under LEPRA: ss 21(1)(d) and 31(b). There is no record (or other evidence) that the female officer turned her mind to issues of necessity, seriousness, and urgency as required under s 31(b) of LEPRA.

225. It cannot simply be assumed that the female officer must have determined on reasonable grounds that the strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary. Her rank and experience as a Senior Constable are simply not a sufficient basis to infer that the officer turned her mind to the necessary requirements, let alone establish the factors taken into account in this particular case.

226. The contention that necessity, seriousness, and urgency of the circumstances can be inferred because the search was conducted at a music festival involves circular reasoning and must be rejected. The statistics relating to the possession and seizure of prohibited drugs, overdoses, or even deaths as a result of ingestion of prohibited drugs at music festivals generally may be a foundation for the development and implementation of harm minimisation policies and/or justification for the deployment of police in specific drug detection operations but, without more, is not sufficient to make out the legislative requirements under s 31(b).

227. Nor can it be argued that the fact that police found quantities of illicit drugs vaginally secreted or otherwise hidden, at this particular music festival (SITG 2018) goes some way to fulfilling the requirements of necessity, seriousness, and urgency. Such an argument relies upon the result of a police operation and works backwards seeking to prove the necessary state of mind of a searching police officer for the purposes of establishing the lawfulness of the search.

228. What must be considered is whether the searching police officer suspected on reasonable grounds that the strip search of the plaintiff (or another individual being strip searched) was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary. The evidence is that upon approaching the entrance of the music festival, Seeby gave an indication towards the plaintiff then immediately moved onto the next person. The plaintiff was directed to the police search area, a pat down search was conducted, then the plaintiff was strip searched.

Sections 32 and 33

234. As stated above, the safeguards encapsulated in ss 32 and 33 are mandatory unless compliance is not reasonably practicable in the circumstances. It is necessary to determine the extent of non-compliance by searching officers for the assessment of damages. In undertaking that task and in making findings, it is important to remember the circumstances in which the strip search of the plaintiff was conducted.

235. The searching police were not confronted with a situation in which a spontaneous response was required. On the contrary, the organisers of SITG 2018 expected up to 36,000 patrons on site between 19 to 23 July 2018. The police response relevantly included a DDD operation which was staffed by 60-70 police officers out of a total composite detachment of approximately 340 officers. Its target was the use and supply of illegal drugs in the main entertainment and camping areas.

236. The infrastructure that existed demonstrates that there was an expectation that police officers would be conducting strip searches at scale. Large numbers of police officers were deployed. There was pre-planning which included DDD operation teams. Operational Orders and specialised Operational Orders for the Drug Dog Operation were prepared, which are summarised at [490]-[506]. These relevantly indicated that there would be two “discreet” search areas set up with tents for privacy, and that scales and drug bags would be provided to searching police officers.

237. Notwithstanding the preparation and planning, the strip search of the plaintiff involved significant non-compliance with the statutory safeguards. The searching officer did not inform the plaintiff that she would be required to remove her clothing during the search, nor did she inform the plaintiff of the reasons why it was necessary to remove her clothing: s 32(2)(a)-(b).

238. As I have already said, the defendant’s submission that where the plaintiff’s statement is silent on an issue I would proceed on the basis that there is no direct evidence to support a finding that something did not occur, is misconceived. The plaintiff has provided a full account of her interactions with the police in her witness statement. That account was not disputed during cross-examination. No evidence has been called by the defendant to challenge the plaintiff’s account. In making findings, I am therefore entitled to proceed on the unchallenged evidence before me.

239. For the same reasons, I accept that the plaintiff was not asked for her cooperation: s 32(3).

240. A further requirement is that the police officer conduct the search (a) in a way that provides reasonable privacy for the person searched, and (b) as quickly as is reasonably practicable: s 32(4)(a)-(b). I accept that the search was conducted as quickly as is reasonably practicable. However, the issue of whether the plaintiff was afforded reasonable privacy, requires closer consideration.

“[21] The Police officer directed me to a makeshift tented area. It was fenced off and positioned to the side of the Festival entrance and close to the front gate. I was directed into a temporary structure, similar to a tent or a marquee. It had multiple cubicles. I recall noticing that this area was not private. I remember seeing an occasional head walk past outside the structure, noting that they could look in.

…

[23] A female Police officer then appeared and told me to walk down a makeshift hallway. We walked past a few cubicles and then she directed me to go into the last cubicle.

…

[26] I recall that the cubicle had three ‘walls’ and a roof made of tarpaulin-like fabric. The front of the cubicle was open and had a screen. I recall that the female Police officer drew the screen, which was around 1.5 metres high. I remember thinking that a taller person would be able to see over the screen into my cubicle. It was not private at all. I remember that I could hear people in other cubicles and thinking that people in the cubicles beside me would be able to hear what was being said in my cubicle. I felt humiliated and anxious by what was happening.”

242. The only other relevant evidence, which is again unchallenged, is that while the plaintiff was naked from the waist down and bent over with her bare buttocks facing the female police officer, a male police officer entered the cubicle without warning. He returned the plaintiff’s bag to the female officer saying words to the effect of, “Nothing found in the bag”. The male officer did not knock and wait for a direction to enter. There was no mechanism which could have prevented his entry.

243. I accept that the plaintiff’s assertions that the area in which she was strip searched was “not private at all”, is not determinative of whether the searching officer objectively provided reasonable privacy for the purpose of s 32(4)(a).

244. Instead, I must have regard to the evidence of the description of the area and I am entitled to have regard to the evidence demonstrating the ease with which the male police officer entered the cubicle without warning and without affording the plaintiff an opportunity to pull up her underpants and shorts.

245. I am satisfied that the searching police officer did not conduct the search in a way that provided reasonable privacy for the plaintiff. The use of a structure in which there was no mechanism to prevent entry by members of the public and the entry into the cubicle by a male police officer, unannounced and without warning, at a time when the plaintiff was naked from the waist down and bent over, is evidence from which I can readily conclude that reasonable privacy was not afforded to the plaintiff.

246. Contrary to the defendant’s submission, the fact that persons outside the tent may have been able to hear the conversation between the plaintiff and the searching officer is a relevant consideration particularly in circumstances where the plaintiff felt compelled to tell the searching officer that she was menstruating, a disclosure of an extremely private nature. The statistics relating to police finding illicit drugs “vaginally secreted” would have raised at least an expectation that a visual examination of women’s genitalia may have to be conducted in circumstances where those women (or at least some of them) may be menstruating.

247. As already noted, a strip search is a highly invasive procedure. The increased invasiveness, humiliation, and degradation involved in a situation where a woman is strip searched while menstruating, brings home the absolute necessity that such a search (where all other requirements are met) be conducted affording reasonable privacy for the person searched.

248. I find that there was non-compliance with ss 32(4)(a) and 33(1)(a)-(c).

249. Section 32(5) of LEPRA mandates that the searching officer conduct the least invasive kind of search practicable in the circumstances. The searching officer failed to comply with that safeguard. On the evidence, I find that the only basis upon which the search was conducted was the indication by Seeby. It is conceded that the plaintiff has established that the searching police did not suspect on reasonable grounds that the strip search was necessary. Furthermore, I have found that the plaintiff has established that the seriousness and urgency of the circumstances did not make the strip search necessary.

“Do you have any drugs on you? If you have anything on you, now is the chance to hand it over.”

258. After the female officer conducted a visual inspection of the plaintiff’s breasts, and while the strip search was still being conducted, the officer asked the plaintiff:

“Have you inserted anything?”

259. That question could only be interpreted as a question asking the plaintiff whether she had inserted any drugs. Both questions were asked during the strip search. Neither question related to issues of personal safety associated with the search. Each question was directed to investigating whether the plaintiff was in possession of illicit drugs. Clearly, the plaintiff was questioned during the strip search in breach of s 32(8) of LEPRA.

260. I find that the plaintiff was allowed to dress as soon as the search was completed: s 32(9) of LEPRA.

261. To the extent that I have not already considered non-compliance with s 33 of LEPRA, I turn to do so now. Section 3(1) of LEPRA provides that a strip search includes a search of a person or of articles in the possession of a person that may include requiring the person to remove all of their clothes and an examination of the person’s body (but not the person’s body cavities) and of those clothes. Section 33(4) is a mandatory prohibition against a search of a person’s body cavities or an examination of the body by touch.

262. In cases where a police officer suspects on reasonable grounds that a strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary, they are empowered to direct the person being searched to remove articles of clothing (bearing in mind the safeguards pursuant to ss 32 and 33). The police officer is also empowered to conduct a visual inspection of the person’s body. The visual inspection does not, however, extend to searching a person’s body cavities or touching the person for the purpose of the examination.

263. There is no express or implied power to direct (as opposed to request) or force a person to position their body in a particular way or touch themselves or perform acts with or upon their own body that the police officer is not permitted to do themselves (other than reasonable directions to ensure the safety of the searching officer or to remove clothes). It follows that the direction to the plaintiff to, “Lift your breasts up, lean forward and then drop your breasts”, and the direction to remove her tampon, were beyond the powers conferred by ss 31-33 of LEPRA.

Factual and legal contentions – damages

264. The plaintiff makes a claim for compensatory damages (including aggravated damages) and exemplary damages. The claim for aggravated damages can be separated into two subcategories. The first relates to the special humiliation suffered by the plaintiff as a result of the extent to which the police officers departed from the LEPRA preconditions and safeguards. The second subcategory relates to the manner in which the proceedings have been conducted by the defendant.

265. The claim for exemplary damages is based on the conduct not only of the individual police officers who strip searched the plaintiff but the asserted “clear and unassailable failure” by senior members of the NSWPF to exercise reasonable care and skill to ensure that police officers deployed to music festivals were properly trained and supervised in undertaking strip searches.

266. A significant portion of the proceedings before me were taken up with submissions relating to the claim for aggravated and exemplary damages. The defendant relies upon the Limitation Act in answer to the plaintiff’s claim for aggravated and exemplary damages.

267. In addressing the claim for damages, I will commence by considering the Limitation Act defence and determine whether it has application in this case. I will then proceed to determine whether the plaintiff is entitled to aggravated and exemplary damages.

The Limitation Act Defence

Defendant’s submissions

268. The limitation defence is pleaded in respect of the claim for aggravated and exemplary damages only. The defendant does not contend that the plaintiff’s claim for general compensatory damages is barred. There is no issue that the plaintiff’s cause of action for damages in tort is brought within time: s 14(1)(b) of the Limitation Act.

269. However, Pt 2 Div 6 of the Limitation Act imposes a three-year post discoverability limitation period for a cause of action for damages that relate to personal injury to a person: s 50C.

270. To the extent that the plaintiff seeks damages for feelings of embarrassment, shock, shaking, fear, anger, upset, and outrage, the defendant contends that the plaintiff is seeking damages for hurt feelings within the meaning of “personal injury” in s 11(1) of the Limitation Act, and the plaintiff’s claim is therefore subject to the three-year limitation period.

271. The defendant relies heavily on State of New South Wales v Steven Charles Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 (“Radford”), where Sackville AJA considered s 18A of the Limitation Act. Section 18A applies to causes of action that accrued prior to the commencement of s 50C.

272. Sackville AJA (Beazley and Macfarlan JJA agreeing) stated:

“[76] Section 18A(2) of the Limitation Act applies a three year limitation period, relevantly, if the cause of action is founded on breach of duty for damages for personal injury. On the assumption that the respondent is seeking damages for personal injury (a proposition he denies), it would seem that the limitation period applicable to the cause of action is three years from the date it first accrued. This conclusion follows from the reasoning of Campbell J in O’Neill v Foster, at 504-507 [20]-[29], 508-511 [36]-[45], which draws on the analysis of Adam J in Kruber v Grzesiak [1963] VR 621 and the English Court of Appeal in Letang v Cooper [1965] 1 QB 232, Campbell J’s reasoning suggests that a cause of action in false imprisonment is based on a breach of duty by the defendant in the relevant sense. See also Mason v Mason [1997] 1 VR 325.

…

[78] In any event, the definition of “breach of duty” in s 11(1) of the Limitation Act includes, when the expression is used in relation to a cause of action for damages for personal injury, trespass to the person. False imprisonment is plainly one category of trespass to the person: WVH Rogers*, Winfield and Jolowicz on Tort* (17th ed, 2006), at 82; JG Fleming, The Law of Torts (9th ed, 1998), at 23. Accordingly, in my view, a cause of action for damages for false imprisonment, provided the claim is “for damages for personal injury”, is within s 18A(1) of the Limitation Act. The limitation period applicable to such a cause of action is therefore the three year period prescribed by s 18A(2).

…

[110] … In the context of an action based on intentional trespass to the person, the expression “damages for personal injury” seems to me to be not inapt to describe damages for feelings of humiliation, indignity, distress and anxiety caused, for example, by a deliberate assault. Such an award, whether by way of ordinary compensatory damages or aggravated damages, is designed to compensate for mental suffering that is personal to the plaintiff and is clearly injurious to him or her. I see no compelling reason to give s 18A(1) of the Limitation Act a meaning narrower than the words readily bear, having regard to the fact that s 18A was intended to apply to actions based on trespass to the person. …”.

273. His Honour concluded that both the claim for aggravated damages and the claim for exemplary damages were subject to the three-year limitation period (at [118], [127]).

274. The defendant submits that authorities on the meaning of “personal injury” for the purposes of the Civil Liability Act are inapplicable to the interpretation and application of ss 18A and 50C of the Limitation Act. Section 3B(1)(a) of the Civil Liability Act excludes intentional torts from the ambit of the Act (albeit with a few exceptions). In support of this contention, the defendant relies on Sackville AJA’s remarks in Radford at [110], where his Honour stated: “I see no compelling reason to introduce into s 18A concepts developed in relation to the law of negligence, but which do not apply to intentional torts”.

Plaintiff’s submissions

275. The plaintiff maintains the position that she does not claim personal injury damages. The plaintiff does not allege impairment of the body or mind, nor seek compensation for an ongoing mental or physical condition. The plaintiff submits that labels for emotions such as humiliation, shame, and fear are the words used to describe infringements of intangible rights, namely, the liberty and integrity of the person. They are not inherently impairments of the mind.

276. In the plaintiff’s outline of reply submissions filed during the course of the proceedings (MFI 9), the plaintiff relies on several decisions of the Court of Appeal and the High Court which considered the proper construction of “personal injury” in the context of the Civil Liability Act, in particular (but not limited to) State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“Ibbett (**NSWCA)”); State of New South Wales v Williamson [2011] NSWCA 183; State of New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 (“Williamson (**HCA)”) and Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“Moore”). The plaintiff submits that these decisions qualify Radford.

277. The written submissions on this point were complemented by oral submissions. The plaintiff submits that there is a single set of cohesive laws that govern the litigation of civil claims in New South Wales, including but not limited to the Civil Liability Act and the Limitation Act, amongst other pieces of legislation. It is submitted that as this is a cohesive group of laws, there must be consistency in the way in which terms used in one piece of legislation are interpreted in another. The plaintiff submits that the Limitation Act does not govern the way in which civil liability claims are determined or how damages are measured but rather it is a “threshold” procedural piece of legislation.

278. It is submitted that the Civil Liability Act is not restricted to actions in negligence but applies to all claims for civil liability damages “across the board”, except those specifically excluded by s 3B. It is acknowledged that parts of the Civil Liability Act do apply to intentional torts, for example s 15B.

279. The Civil Liability Act and the Limitation Act contain nearly identical definitions of personal injury (with the only difference being that the Civil Liability Act has the addition of “pre-natal injury” in the definition). The plaintiff submits that for reasons of legislative coherence, the manner in which “personal injury damages” was construed by the High Court in *(* must prevail over the approach taken in . The High Court in , although not dealing with “personal injury” in the context of the , explicitly held that damages for false imprisonment, as a trespass to the person, including loss of dignity and harm to reputation, does not constitute an impairment of the person’s mental condition or otherwise a form of “injury” within s 11 of the : at 429.

Consideration of the Limitation Defence

282. I reject the submission that s 50C of the Limitation Act applies to the plaintiff’s claim for aggravated and exemplary damages. The defendant’s pleaded defence and its submissions in support of that defence, relying heavily on Radford, are flawed.

283. The plaintiff pleads causes of action in tort, namely, battery, assault, and false imprisonment. The three torts (collectively referred to as “the cause of action”) essentially arise from one episode involving the conduct of searching police officers during the strip search of the plaintiff at SITG 2018. The plaintiff’s claims for compensatory damages (general and aggravated) and exemplary damages arise from that cause of action. Her compensatory damages relate to “hurt feelings”, including humiliation, embarrassment, fear, and distress which were a response to the conduct of searching police during an unlawful strip search.

284. The plaintiff claims that those damages are aggravated because, (as a result of the extent to which the searching police officers deviated from or failed to comply with the provisions of LEPRA), she has suffered special humiliation. The aggravated damages do not arise from a separate cause of action.

285. Similarly, the plaintiff’s claim for exemplary damages is a claim arising from the same cause of action (the torts of battery, assault, and false imprisonment). They are not compensatory damages but rather are directed to punishment and deterrence. As has often been said, aggravated damages are assessed from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47 (“Lamb v Cotogno”); Ibbett (NSWCA) at [83].

286. Reliance on the Limitation Act defence in answer to the plaintiff’s claim for aggravated and exemplary damages only, is curious given the defendant’s acceptance in its written submissions, that the claim for aggravated damages and exemplary damages is not an independent cause of action. A claim for aggravated and exemplary damages is “parasitic” to a claim for compensatory damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 468-9; [1985] HCA 12 (“XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd”).

287. Section 14(1)(b) of the Limitation Act provides that a cause of action founded on tort is not maintainable if brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrues to the plaintiff. The plaintiff instituted proceedings within time. Her claim has always been for compensatory damages, aggravated damages, and exemplary damages arising from the torts of battery, assault, and false imprisonment.

(i) The unlawful and unjustifiable actions of the police officers being inflicted upon her; (ii) Being frightened of the police taking her away from her friends and away from the crowd; (iii) Being forced to remove her clothing and be searched without sufficient privacy; (iv) Being directed by police officers and being searched within sight and hearing of others; (v) Being fearful and humiliated that, at any time, someone could walk past or look into the cubicle where she was being strip searched; (vi) Having to find her friends following the strip search, who may have been directed to move on by police; (vii) Her knowledge that she had not done anything to warrant the police officers’ behaviour; (viii) Suffering this humiliation, indignity, and assault at an event that was supposed to be positive and joyful for her; (ix) Knowing that there were multiple police officers who had ostensible authority as police officers and/or that they were armed with weapons and therefore, having no realistic means of refusing to comply with their directions; and (x) Having no police officer or agent of the NSWPF apologise for their actions.

291. The plaintiff’s evidence about the emotions she experienced as a result of the illegal strip search is contained in her statement dated 21 November 2023. The plaintiff felt apprehensive, frightened, humiliated, and anxious. She described feeling “terrified” when the female police officer directed her to take off her shoes and socks. Her fear was heightened, and she felt threatened as the strip search proceeded. By the time she was directed to turn around and “bend right over”, the plaintiff was “totally embarrassed and humiliated”.

292. At the heart of the controversy is whether the plaintiff is claiming “damages for personal injury*”*. However, the defendant does not advance an argument that the plaintiff’s cause of action for general compensatory damages is barred because it has been brought out of time. The defendant does not advance an argument that the plaintiff is not entitled to compensatory damages arising from the pleaded cause of action.

293. The defendant must therefore be taken to accept that the plaintiff’s cause of action is within time, being “a cause of action founded on tort, including a cause of action for damages for breach of statutory duty” (pursuant to s 14(1)(b) of the Limitation Act), as opposed to “a cause of action for damages that relate to … personal injury to a person” (within the meaning of s 50A of the Limitation Act). Had the plaintiff’s cause of action been a cause of action for damages that relate to personal injury, the defendant would have advanced an argument that the entirety of the plaintiff’s claim was not maintainable.

294. The defendant seeks to artificially separate the claim for aggravated and exemplary damages from the claim for (general) compensatory damages in circumstances where they arise from the same cause of action (founded in tort), which was commenced within the relevant limitation period: s 14(1)(b) of the Limitation Act.

Radford distinguished

295. In Radford, Sackville AJA (Beazley and Macfarlan JJA agreeing), referring to Spigelman CJ’s remarks in Ibbett (NSWCA), stated:

“[109] In assessing the significance of Spigelman CJ’s observations for present purposes, it is pertinent to observe that s 21 of the CL Act is confined to actions founded on negligence. The law of negligence distinguishes, rightly or wrongly, between mere emotional distress (non-compensable) and psychiatric injury (compensable): see Tame v New South Wales [2002] HCA 35; 211 CLR 317, at 414-418 [285]-[297], per Hayne J. It is perhaps readily understandable that a reference to “personal injury damages” in s 21 should be construed in the manner favoured by Spigelman CJ, although his Honour clearly did direct attention to whether that expression applied to a claim based on an apprehension of personal violence.

[110] It is less clear, in my respectful opinion, that the reference in s 18A of the Limitation Act to an action founded on breach of duty “for damages for personal injury” should be construed in the way suggested by Spigelman CJ. In the context of an action based on intentional trespass to the person, the expression “damages for personal injury” seems to me to be not inapt to describe damages for feelings of humiliation, indignity, distress and anxiety caused, for example, by a deliberate assault. Such an award, whether by way of ordinary compensatory damages or aggravated damages, is designed to compensate for mental suffering that is personal to the plaintiff and is clearly injurious to him or her. I see no compelling reason to give s 18A(1) of the Limitation Act a meaning narrower than the words readily bear, having regard to the fact that s 18A was intended to apply to actions based on trespass to the person. In particular, I see no compelling reason to introduce into s 18A concepts developed in relation to the law of negligence, but which do not apply to intentional torts.”

296. In Radford the Court was dealing with the meaning of “damages for personal injury” in the context of s 18A of the Limitation Act (which applied prior to the commencement of s 50C). However, Radford is not authority for the general proposition that emotional responses to causes of action arising from trespass to the person (such as assault and battery) constitute “personal injury”. Radford is very fact specific and can be distinguished from the present case.

297. In Radford, the Court was dealing with an appeal from interlocutory orders dismissing a motion filed by the State seeking to strike out and dismiss the statement of claim filed by the plaintiff in the proceedings and granting leave to the plaintiff to file a fifth further amended statement of claim (“5th ASC”).

298. The respondent to the appeal (the plaintiff in the substantive proceedings) was arrested after a scuffle with police officers who had attended his home in order to execute a lawful search warrant. The incident occurred on 15 December 1999. There was no dispute that, whatever the circumstances of his arrest, the respondent suffered physical injuries and required medical treatment in consequence of the scuffle.

299. The respondent was arrested and later convicted and sentenced to a term of imprisonment for drug-related offences. On 14 December 2005, one day short of six years after his arrest, the respondent commenced proceedings by filing a statement of claim. The respondent’s statement of claim alleged that in the course of the arrest, the police officers assaulted him using excessive force. The respondent alleged that in consequence of the assaults he suffered injuries and continued to suffer disabilities, loss, and damage as a consequence of the said injuries. In addition to the physical injuries that were identified, the respondent claimed damages for psychiatric disabilities including psychosis and schizophrenia. No claim was made for aggravated or exemplary damages.

300. Relevantly, on 26 June 2009, the respondent filed a motion seeking leave to proceed upon a proposed fourth further amended statement of claim (“4th ASC”) which abandoned any claim for general compensatory damages for the previously particularised personal injuries and disabilities. Instead, it pleaded a case based on trespass to the person and false imprisonment and sought unspecified aggravated and exemplary damages.

301. It was clear that the 4th ASC omitted the claim for damages for physical injuries in an attempt to overcome the fact that s 18A(2) of the Limitation Act imposes a three-year limitation period for a cause of action founded on breach of duty for damages for personal injury.

302. The primary judge heard the respondent’s motion on 23 October 2009, granting the respondent leave to file the 5th ASC. The 5th ASC made it clear that the respondent wished to claim damages for “emotional upset, anxiety, distress and humiliation that he claimed to have suffered by reason of the assault and the wrongful imprisonment” (at [30]).

“[104] It would seem to be somewhat odd if the three year limitation period imposed by s 18A(2) applies to an action for assault where the plaintiff seeks damages for physical injuries or a psychiatric condition caused by the assault, but does not apply to a claim for aggravated damages for mental harm or suffering not amounting to a recognised psychiatric injury. The oddity is that a claim for damages for physical injuries or a psychiatric condition would have to be brought within three years, but a claim for aggravated damages could be brought within six years. Aggravated damages are compensatory and may be claimed for consequences that are more transient and perhaps less serious than major physical or psychiatric injuries.

[105] Nonetheless, the apparent oddity of a result does not demonstrate that the statutory language, on its proper construction, avoids the result. The question remains whether an action based on assault in which the plaintiff claims aggravated damages for injury to feelings, is properly characterised as an action “for damages for personal injury”. While the authorities do not speak with one voice, I think that the answer to the question is “yes”.”

304. Unlike the present case, Mr Radford’s personal injury claim morphed into a claim for aggravated and exemplary damages. It was clear that the 4th and 5th ASC in Radford were an effort to circumvent s 18A of the Limitation Act. Mr Radford’s personal injury claim was the foundation for the claim for aggravated and exemplary damages. It was in this specific context that Sackville AJA favoured a broader interpretation of “personal injury” and declined to adopt the approach of Spigelman CJ in Ibbett (**NSWCA).

305. Furthermore, the defendant’s argument that the plaintiff is permitted to bring a claim for general compensatory damages, but not for aggravated and exemplary damages, would give rise to an incongruous result. There is no dispute that the plaintiff is entitled to bring the proceedings to recover general damages. The institution of proceedings for the intentional torts of battery, assault, and false imprisonment is within time. The claim for aggravated damages relates to the special humiliation experienced by the plaintiff as a result of the gravity of the police officers’ unlawful conduct. The labels for the emotions experienced by the plaintiff (humiliation, fear, embarrassment) are words used to describe infringements on the right to liberty and integrity of the person. They are words used to describe the gravity of the relevant violations of the plaintiff’s rights.

306. It is necessary to deal with some of the other authorities that have been referred to in submissions. These cases have considered the definition of “personal injury”, albeit not in the context of the Limitation Act.

307. Section 11 of the Civil Liability Act provides as follows:

11 Definitions

In this Part—

injury means personal injury and includes the following—

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease.

personal injury damages means damages that relate to the death of or injury to a person.

308. Section 11(1) of the Limitation Act includes the following:

11 Definitions

…

Personal injury includes any disease and any impairment of the physical or mental condition of a person.

309. With the exception of the additional inclusion of pre-natal injury in the Civil Liability Act, the two definitions are substantively the same.

310. The plaintiff relies on Ibbett (**NSWCA), which pre-dated Radford. In Ibbett (**NSWCA), the State appealed against a decision of the District Court awarding Mrs Ibbett aggravated and exemplary damages in relation to the unlawful conduct of police officers. Mrs Ibbett was successful in her action for trespass and assault. One of the issues before the Court of Appeal was whether the award of exemplary damages was precluded by s 21 of the Civil Liability Act. Section 21 of the Civil Liability Act provided that in an action for the award of personal injury damages where the act or omission causing injury was negligence, a court cannot award exemplary or aggravated damages.

311. Spigelman CJ found that it was not necessary to determine whether the proceedings were “an action for the award of personal injury damages” (at [4]). However, his Honour expressed the following opinion:

“[21] The concept of “personal injury” is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See e.g. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-363.) An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for “personal injury damages”.

[22] The issue is whether such harm should be so regarded by reason of the reference, in the inclusive definition of “injury” in s11, to “impairment of a person’s … mental condition”. I incline to the view that the emotional reaction, often called “injured feelings”, arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an “impairment of a mental condition”. However, the state of the law on mental harm at the time the Act was passed would need to be carefully reviewed before reaching a concluded view. The submissions did not undertake that task. This issue need not be determined.” (Emphasis added.)

312. Ipp JA, on the issue of what constituted impairment, came to a different view, stating:

“[124] … In my view, anxiety and distress would be an “impairment” of a person’s mental condition in accordance with the ordinary meaning of “impairment”, as the word is used in s 11.

[125] In my opinion, irrespective of whether the ordinary meaning of the word is attributed to “injury”, or whether it is given the meaning defined in s11, the word is wide enough to encompass anxiety and stress.”

313. Basten JA observed:

“[212] There may be a doubt as to whether limiting the concept of “impairment of mental condition” to an impairment involving a recognised psychiatric illness accords with the general understanding of the term “impairment” or with its use in the statute. In ordinary usage, the term “impairment” connotes a diminution of an antecedent state of affairs or a departure from an objective standard. In discrimination law the term is used to describe departure from a standard; in tort law, it is used to describe departure from a state of affairs caused by the act of the tortfeasor. The ordinary meaning of the term may not reflect a distinction drawn by the law between emotional distress and a psychiatric condition. (As to the nature of the distinction see generally Tame v New South Wales (2002) 211 CLR 317 at [285]-[296] (Hayne J).)”

314. In Williamson *(*HCA) (which post-dates Radford), the High Court considered the proper construction of “personal injury” within s 11 of the Civil Liability Act. The case concerned a repealed provision of the Legal Profession Act 2004 (NSW) that limited costs recovery by a law practice in connection with a claim for “personal injury damages” where the amount recovered did not exceed $100,000.

315. Mr Williamson sued the State of New South Wales for damages for trespass to the person and false imprisonment, due to the actions of police officers who had allegedly thrown him to the ground, restrained him, confined him in a police wagon, further assaulted him and then released him without charge. The action was settled, and orders were made by consent, awarding Mr Williamson $80,000 plus costs as agreed or assessed. Mr Williamson applied for an order transferring the proceedings to the Supreme Court and for a declaration that costs were not regulated by s 338 of the Legal Profession Act. Hall J made orders to that effect.

316. The State then appealed to the Court of Appeal. The appeal was dismissed. One of the reasons for dismissing the appeal was the Court’s finding that “a claim for false imprisonment, at least in so far as it extends to a claim for damages for deprivation of liberty and loss of dignity, is not a claim for personal injury damages within the meaning of s 338(1)”: Williamson *(*HCA) at [6]. The Court of Appeal also held that “personal injury damages” as used in the Legal Profession Act did not include claims for intentional torts (a finding that was overturned on appeal). The State appealed to the High Court.

317. Relevantly, the definition of personal injury damages in the Legal Profession Act stated, “personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002”. Thus, in construing “personal injury damages” in this case, the High Court was effectively construing the definition of “personal injury damages” in the Civil Liability Act.

318. French CJ and Hayne J (Kiefel J agreeing) relevantly found as follows:

“[31] … As already explained, "personal injury damages" was defined to have the same meaning as in Pt 2 of the Liability Act. And as has already been noted, s 11 of the Liability Act defined "personal injury damages" as "damages that relate to the death of or injury to a person" and "injury" as "personal injury", including "impairment of a person's physical or mental condition".

[32] The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment. He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition.

[33] Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury.

[34] Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an "impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a "claim for personal injury damages".” (Emphasis added, footnotes omitted.)

319. In Moore, the appellant sued Scenic Tours for disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday. The issue before the High Court on appeal was whether s 16 of the Civil Liability Act precluded Mr Moore from recovering damages for loss of that kind. Mr Moore submitted that Pt 2 of the Civil Liability Act is concerned exclusively with claims for damages for personal injury and his claim was not for personal injury. The relevant findings of the majority (comprised of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) included as follows:

“[40] Mr Moore submitted that his claim for damages for disappointment and distress for breach of contract falls outside Pt 2 of the CLA because the damages he claimed by way of compensation for his disappointment and distress do not relate to personal injury. He argued that a reaction of disappointment and distress to the breach of such a promise – a promise that had been bought and paid for – is a normal and healthy response to that disappointment rather than an impairment of the plaintiff's mental condition. It was said that the disappointment of a contractual expectation of recreation, relaxation and freedom from molestation is not "impairment" of a person's mental condition within the meaning of "injury" in s 11; nor is it "non-economic loss" under s 3 of the CLA. There is force in this submission.

[41] Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an "impairment" of the mind or a "deterioration" or "injurious lessening or weakening" of the mind. Frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind. In this regard, Mr Moore's claim for damages for his disappointment and distress resulting from Scenic's breach of contract can be seen as no more a claim relating to personal injury than would be a claim for damages for the indignation occasioned by false imprisonment or defamation. As was said in New South Wales v Williamson by French CJ and Hayne J, with whom Kiefel J agreed, while there may be cases where an act of false imprisonment itself causes psychiatric injury, insofar as an action for false imprisonment claims damages for loss of dignity and harm to reputation associated with the deprivation of liberty it is not a claim for an "impairment of a person's physical or mental condition" or otherwise a form of injury within s 11 of the CLA.” (Footnotes omitted, emphasis added).

320. The High Court decisions in Williamson *(*HCA) and Moore make clear that for the purpose of s 11 of the Civil Liability Act, deprivation of liberty, loss of dignity, harm to reputation, and disappointment, distress, frustration and indignation in response to a breach of contract, do not amount to impairment of a person’s mental condition or “personal injury”. Although the decisions engage with the definition of “personal injury damages” in the context of the Civil Liability Act, as earlier explained, there is no reason to differentiate between that phrase and the definition in the Limitation Act.

321. To be clear, I am of the view that the Limitation Act does not apply to the plaintiff’s claim for aggravated and exemplary damages for the following reasons:

(a) Firstly, the High Court has unequivocally held that deprivation of liberty, loss of dignity, and harm to reputation, in the context of a claim for damages for false imprisonment, do not amount to impairment of a person’s mental condition, albeit in a different statutory context in proceedings pertaining to a specific costs issue arising under the Legal Profession Act 2004 (NSW): Williamson (**HCA). (b) Secondly, although the decisions in Williamson *(*HCA) and Moore involve constructions of the Civil Liability Act, and causes of action founded in intentional torts are largely excluded from the scope of the Civil Liability Act, the Civil Liability Act and the Limitation Act provide nearly identical definitions of “personal injury”. It would be incongruous if impairment of the mental condition of a person meant something different in each Act, given both pieces of legislation apply to govern the litigation of civil claims in New South Wales. (c) Thirdly, in Radford the initial claim was for damages for personal injury and alleged recognised psychiatric conditions. The respondent (the plaintiff in the substantive proceedings) sought to recharacterise his claim as one for emotional upset, anxiety, distress, and humiliation to avoid the operation of the limitation period, in an effort to circumvent the Limitation Act. It was in this context that such a broad interpretation of “personal injury” (under s 11(1) of the Limitation Act) was adopted. (d) Fourthly, unlike the facts in Radford, the plaintiff in the present matter has never claimed an impairment of her mental condition, a recognised psychiatric condition, or personal injury. Since the first iteration of the SoC, the plaintiff has expressly stated that she does not claim damages for personal injury. In using labels such as embarrassment, fear, and anger, the plaintiff was using normal language to describe her emotional reaction to the unlawful strip search she was subjected to.

322. Having found that the Limitation Act does not apply to bar the plaintiff’s claim for aggravated and exemplary damages, I will turn now to consider each head of damages*.*

Compensatory (general) damages

323. The plaintiff handed up a schedule of damages during the proceedings (MFI 1). The plaintiff contends that she should be awarded $5,000 for the battery, $25,000 for the assault and $20,000 for the false imprisonment. The defendant accepts that the Court would award compensatory damages for the three causes of action, but forcefully resists the quantum proposed by the plaintiff. The defendant points out that the three causes of action arise out of substantially the same facts and careful assessment is required so that the plaintiff is appropriately compensated but not overcompensated, as an award of “damages must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered”: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66; [1993] HCA 31 at [47] (Mason CJ, Deane, Dawson and Gaudron JJ).

324. The plaintiff contends that a substantial award of damages is necessary to compensate the plaintiff for the wrong done to her by the unlawful exercise of police powers. That compensation must take into account “the particularly distressing and humiliating circumstances of the torts”: Bulsey v The State of Queensland [2015] QCA 187 at [109] (Fraser JA, Atkinson and McMeekin JJ agreeing).

325. The applicable principles are not in dispute and do not require extensive consideration. The assessment of damages for false imprisonment involves an evaluative judgment: see Costa and Another v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105] (Basten JA); State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 (“Abed”) at [218]. It is often a matter of “opinion, impression, speculation, and estimation”: Clifton & Ors v Lewis [2012] NSWCA 229 at [56] (Basten JA agreeing with Beazley JA), citing Dell v Dalton (1991) 23 NSWLR 528 at 533G; [1991] NSWCA 76.

326. The damages may take into account the effect on the plaintiff’s liberty, dignity, and reputation: see State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [153]-[157]. Loss of liberty, even for a short period, is not a trivial wrong: Watson v Marshall at 632. There is no issue about fault. It is irrelevant whether the defendant intended to act unlawfully or cause injury. In Ruddock at [140], Kirby J (in dissent, but not on this point), described unlawful imprisonment as a “tort of strict liability”, citing R v Governo**r of Brockhill Prison; Ex parte Evans *(*No 2) [2001] 2 AC 19 at 26. His Honour held that “[t]his is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant”.

(a) The plaintiff was approached in a crowd by a uniformed police officer and told, “The dog has detected drugs on you. If you follow me, we need to conduct a search”, when she knew she was not carrying drugs and felt “very apprehensive and frightened about what was happening”. (b) She was escorted to the police search area, directed to hand over her bag, and escorted into a search cubicle with the female police officer, without any explanation. (c) In the cubicle, the plaintiff grew concerned about her perception that the area was not private and “felt humiliated and anxious by what was happening”. (d) A pat down search was conducted which included the searching police officer patting down the arms, lower legs, and thighs of the plaintiff in circumstances where the plaintiff was wearing a singlet top and shorts. The plaintiff felt “very awkward and affronted by having her touch me in that way”. (e) The plaintiff was told to remove her shoes and socks and at this point she “was terrified. [She] did not know what was going to happen next”. It is clear from this evidence that the process was not explained to her nor was she asked for her cooperation. (f) The plaintiff was told to pull down her top, “[l]ift your breasts up, lean forward and then drop your breasts”, which she found “humiliating”. (g) The plaintiff was then asked, “Have you inserted anything?”. In answering the question, the plaintiff had to disclose that she was menstruating and there was an exchange about her tampon, an exchange that the plaintiff describes as, “I recall our exact words, as I was so shocked that she had questioned me on this topic and so horrified that I had to tell her about my tampon”. (h) The plaintiff felt threatened and extremely fearful, stating “I recall thinking, ‘I am going to have to let this woman insert her hands into my vagina or she is going to kick me out of the festival’”. (i) [Redacted]. (j) The plaintiff was then told to pull down her shorts and underpants and recalls, “I remember wanting to scream at her. I remember feeling disgusted that another woman was putting me through this. I was nauseated by this point, I felt like vomiting”. (k) The plaintiff was directed to pull on her tampon and show it to the female officer. The plaintiff only partially removed the tampon because she “did not want blood to go everywhere”. She felt degraded. (l) The plaintiff was then directed to turn around to face away from the female officer and “bend right over”, a direction with which she complied. Whilst in this position a male officer entered the searching area unannounced to return the plaintiff’s bag, stating that there was nothing found in it. The plaintiff felt “totally embarrassed and humiliated”, “angry and in disbelief”, and she “wanted to vomit”. (m) She scrambled to pull her underpants and shorts up. Following the search, she struggled to insert a fresh tampon because her hands were shaking so badly as a result of the ordeal.

335. Although no physical force was employed by the searching police officer and there was no deployment of weapons or unnecessary physical restraint, the circumstances in which the plaintiff was unlawfully detained involved significant harm to the plaintiff’s interest in bodily integrity and liberty. Furthermore, although the searching officer did not raise her voice, the officer’s conduct in directing the plaintiff to move her body and body parts, including a direction to remove her tampon, in the absence of lawful justification, was egregious.

336. The plaintiff suffered considerable humiliation, fear, and distress in having to disclose that she was menstruating. That exchange took place just after she had been directed to pull down her top, exposing her breasts. The plaintiff had to pull on her tampon string to prove to the searching officer that a tampon was the only thing inserted in her vagina.

337. The contention that the conduct was not egregious fails to appreciate the particular state of vulnerability of the plaintiff and the degree of humiliation, fear, and distress that she experienced as a result of the searching police officer’s conduct. That conduct took place in circumstances where the searching police did not have reasonable grounds to suspect that the plaintiff was in possession of an illicit substance.

338. I am comfortably of the view that the quantum of compensatory (general) damages that should be awarded to the plaintiff is:

(i) Battery - $3,000 (ii) Assault - $25,000 (iii) False Imprisonment - $15,000

Aggravated and exemplary damages distinguished

339. The distinction between aggravated and exemplary damages was discussed in Abed as follows (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing):

“[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.

[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40; 117 CLR 118 at [149] (Windeyer J).

[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (Gray v MAC) [1998] HC 70; 196 CLR 1 at [14].”

340. An award of exemplary damages is not confined to punishment but also serves to deter police officers, in similar circumstances, from committing serious statutory contraventions. Put simply, in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant: Ibbett (NSWCA) at [83]. It is necessary to assess aggravated damages before determining whether the plaintiff is entitled to a further award by way of exemplary damages: New South Wales v Ibbett (2006) 229 CLR 638 at 647-8; [2006] HCA 57(“Ibbett (**HCA)”) citing Ibbett *(*NSWCA) at [83].

Aggravated damages for assault and false imprisonment

341. I will deal first with the claim for aggravated damages. The claim for aggravated damages can be separated into two subcategories. The first arises from what is described as the “magnitude of departure from the LEPRA pre-conditions and safeguards”. The second subcategory relates to the plaintiff’s hurt feelings arising from the conduct of the proceedings by the defendant. I will deal with each in turn. The plaintiff contends that $30,000 should be awarded in aggravated damages for the assault and false imprisonment and a further $30,000 should be awarded for the conduct of the proceedings.

342. The defendant submits that an award of aggravated damages (in addition to the amounts which the plaintiff is entitled to for general compensatory damages) should be no more than $5,000. The defendant resists an award of aggravated damages for the conduct of the proceedings, submitting that the “plaintiff’s claim for aggravated damages because of the manner in which the defendant conducted the litigation is in substance a claim that whenever a defendant in a common law tort claim puts a plaintiff to proof of a not admitted fact or denies a material fact which is ultimately proved by the plaintiff then aggravated damages are appropriate”.

343. The extent to which the searching police officers failed to comply with the preconditions and safeguards of LEPRA have been addressed at [223]-[263]. It is not necessary to repeat that analysis but only to refer to the findings in summary.

344. There was significant departure from the preconditions and safeguards in LEPRA. The searching police officers did not have reasonable grounds to suspect that the plaintiff was in possession of an illicit substance. The departure from LEPRA extended to the failure by searching police to form a suspicion on reasonable grounds that the strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary.

345. Furthermore, in respect of ss 32 and 33 the female police officer did not inform the plaintiff that she would be required to remove her clothes and the reasons why it was necessary: ss 32(2)(a)-(b). The search escalated in unexplained circumstances from a pat down search to a strip search. The plaintiff was not asked for her cooperation: s 32(3). The strip search was not conducted in a way that provided reasonable privacy for the plaintiff, nor was it conducted in the least invasive way possible: ss 32(4)(a) and 32(5).

346. The searching police officer conducted a search of the plaintiff’s breasts and genital area in the absence of a suspicion on reasonable grounds that it was necessary to do so for the purpose of the search: s 32(6). The plaintiff was questioned by the searching police officer during the strip search. The questions were not limited to issues of personal safety associated with the search: ss 32(8) and 32(8A).

347. The conduct of the searching police also departed from the safeguards in s 33. The strip search was not conducted in a sufficiently private area to comply with s 33(1): see [240]-[248] above.

(i) “Lift your breasts up, lean forward and then drop your breasts”; (ii) “Pull out the tampon and show it to me”; and (iii) “Turn around so that your back is towards me and bend right over”.

353. The defendant’s submission that an appropriate award of aggravated damages should be no more than $5,000, significantly underestimates the degree of aggravation. It fails to appreciate the degree of humiliation, degradation, and trauma caused by directing a woman to strip in a makeshift structure where a male officer entered without impediment; directing her to lift her breasts and bend over, exposing her buttocks; and, upon disclosing that she was menstruating, being directed to pull out her tampon.

354. I agree with the plaintiff’s submission that the overall picture is that the searching police did not turn their mind to whether LEPRA authorised the strip search of the plaintiff and failed to comply with many of the safeguards. The only objective evidence for suspicion is that a drug detection dog gave an indication. However, the evidence clearly establishes that a positive drug dog indication, alone, is not a basis for a strip search.

355. The plaintiff experienced greater affront, greater humiliation, and greater damage to her dignity, from the fact that she was subjected to an escalating series of invasive powers by searching police, in circumstances where there was no explanation of the necessity for the search. Her response went from apprehension to humiliation, to terror, to degradation, to nausea, and onto anger.

356. The appropriate award of aggravated damages (considered separately from the conduct of the proceedings complaint) is $30,000.

Aggravated damages for the conduct of the proceedings by the defendant

357. In The Korean Times Pty Ltd & Anor v Un Doc Pak [2011] NSWCA 365 at [127] Nicholas J (with whom Beazley JA agreed) held:

“To attract an award of aggravated damages by reason of the conduct of a defendant, a plaintiff must show that such conduct was in some way unjustifiable, improper, or lacking in bona fides notwithstanding that the conduct may cause distress to the plaintiff ( Triggell v Pheeney (1951) 82 CLR 497; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at p 497).”

358. The plaintiff has particularised two aspects of the defendant’s conduct that she claims should sound in aggravated damages for its conduct during the proceedings. First, the plaintiff relies on the defendant’s institution and maintenance of a defence of lawful justification and the factual challenge to the plaintiff’s account for a period of over two years from 29 September 2022 (being the date of the original Defence) until the filing of an Amended Defence on 28 March 2025.

359. [Redacted].

360. I pause to deal with a submission made on behalf of the defendant in respect of this part of the claim for aggravated damages. It is submitted that I cannot make findings that there was no reasonable basis for filing the defence because of the absence of a waiver of privilege. The importance of legal professional privilege is emphasised, and it is essentially submitted that it would be highly unfair for clients to have to waive privilege in order to avoid a claim for aggravated damages because of the way that a pleading was prepared.

361. I do not accept that the submission has force in this case. The uncontroverted evidence is that the three police officers involved in the plaintiff’s search do not remember the plaintiff and have no recollection of interactions with her. Furthermore, the only contemporaneous note about the search appears in the notebook of SC Petrie. The notebook contains very little detail. Its contents could never have provided the evidentiary foundation for some of the positive assertions pleaded.

362. Had there been evidence supporting positive assertions about observations made of the plaintiff or interactions with her (by way of police statements, notebook entries or COPS event entries), I would expect that it would have been produced and relied upon. It was not.

363. The particulars relied upon by the plaintiff in support of her claim for this category of aggravated damages is comprehensively set out in the plaintiff’s outline of closing submissions (MFI 4). The following summary draws heavily from that outline.

364. In its original Defence, the defendant denied liability and asserted that there was lawful justification for the strip search of the plaintiff on the basis of express observations and determinations of the three police officers involved in the search. The Defence pleaded:

(a) That SC George’s strip search of the plaintiff complied with ss 32, 33, and 202 of LEPRA: [17(c)] and [18(c)]. (b) That SC Jarnet was the police officer handling a drug detection dog who approached the plaintiff: [25(a)]. (c) That Seeby the drug detection dog gave a positive indication that there was a prohibited substance in the air space around the plaintiff: [26(a)]. (d) That SC Jarnet spoke to the plaintiff and told her his name and place of duty: [27(b)]. (e) That SC Jarnet had reasonable grounds to suspect that the plaintiff had a prohibited substance in her possession or control: [27(d)]. (f) That SC Petrie spoke to the plaintiff because he also had reasonable grounds to suspect that the plaintiff had a prohibited substance in her possession or control: [27(f)]. (g) That the plaintiff said to SC Jarnet and/or SC Petrie, words to the effect of “I had a smoke with a joint this morning” [27(g)]. (h) That SC Petrie directed the plaintiff to the Police Inspection Area: [28(b)]. (i) That SC George directed the plaintiff to go inside a tent but before doing so spoke to the plaintiff, giving the plaintiff her name, place of duty, and the reasons for the exercise of the search power: [31(b)-(d)]. (j) That SC George also had reasonable grounds to suspect that the plaintiff had a prohibited substance in her possession or under her control: [31(e)]. (k) An express denial that SC George questioned the plaintiff about whether she had any drugs on her or warned her that if she did have anything that “now’s the chance to hand it over”, whilst inside the tent and specifically stated any such conversation occurred outside the tent: [34].

365. In relation to the plaintiff’s pleadings as to what occurred during the strip search, the initial Defence does not admit certain things but otherwise specifically denies [47]-[52] of the original SoC which alleged the following:

(a) That the plaintiff was directed to remove her tampon and then pulled on the string of her tampon; and that the female police officer bent down and inspected the plaintiff’s vagina as she pulled on the string of the tampon. (b) That whilst the plaintiff’s underpants were removed, the female officer directed the plaintiff to turn around so that her back was to the officer. (c) That the plaintiff was directed to bend over with her buttocks facing the female police officer. (d) That whilst she was so positioned a male police officer entered the cubicle without warning.

366. The Defence also expressly denies that the plaintiff was directed to provide her driver’s licence and stipulates that the plaintiff was asked and voluntarily provided her name, address, date of birth, and phone number to SC Petrie: (Defence at [56]).

367. The defence of lawful justification and express denials as to parts of the plaintiff’s factual claims is maintained in later iterations of the defendant’s pleadings. Further and better particulars were provided which also maintain the denials.

368. In March, April and May 2024, the defendant filed and served a large number of witness statements of police officers who had been deployed during SITG 2018, including the statements of SC Jarnet, SC Petrie, and SC George. These police officers had no recollection of the strip search or their interactions with the plaintiff. Notwithstanding this, the Defence was maintained for another 12 months.

369. Approximately five weeks prior to the hearing date, the defendant filed an Amended Defence in which it was accepted that the strip search was not lawfully justified and the denials earlier pleaded were (at least to some extent) abandoned.

370. The institution and maintenance of the pleadings (until the Amended Defence was filed) adversely impacted the plaintiff. The plaintiff gave oral evidence about her feelings on the first day of the hearing. The plaintiff accepted that she understood the difference between a non-admission and a denial of a fact. The plaintiff gave evidence that she understood that the totality of the Defence was to challenge her account about what had occurred to her on 20 July 2018.

371. The plaintiff said (Tcpt, 5 May 2025 p 31(47)):

“… I knew what it was leading up to. I had experienced it. You know, at, at that point in time with all these denials I knew that, you know two and a half years to have this hanging over my head I was going to have to come to court and have three police officers in front of me and to have to defend what actually happened and, you know, have - make people believe my facts as factual while they were standing there telling me that I was lying.”

372. In later evidence the plaintiff was asked and answered (Tcpt, 5 May 2025 p 37(1)):

“Q: So you’ve said to her Honour a minute ago, and it is the case that when you read this you thought that when the hearing came around you were going to have to get in the witness box and defend yourself against police officers on the other side saying that their version of events was correct?

A: That was the fear, yes.”

373. The plaintiff was taken through each of the non-admissions and denials in the original Defence. Although she accepted that the difference between a non-admission and denial had been explained to her, unsurprisingly, her reaction to the original Defence was that her integrity and honesty were being called into question.

374. The express denials in [47]-[52] of the initial Defence related to the allegations that the female police officer directed the plaintiff to remove her tampon, to bend over, to turn around, and to pull on the string of her tampon. The plaintiff’s reaction to these denials is captured in her evidence that “it was very insulting, very angry and very anger inducing … Being called a liar and then probably expected to defend myself over all these facts bit by bit”. She was exasperated, angry, and irritated and said that the denials caused her “further humiliation”.

375. When the plaintiff was provided with the statements of the three searching police officers and had the contents explained to her, she was “beyond infuriated, because that means even though I was called a liar in so many aspects, of so many minute details I lied apparently they don’t recall me. It did not match up to my understanding and it was very insulting*”.*

376. The defendant relies upon Jamieson v R (1993) 177 CLR 574 at 579; [1993] HCA 48, where the purpose and function of an unverified pleading was explained by Deane and Dawson JJ as follows:

“Indeed, to characterize the factual assertions in a plaintiff’s unverified pleading as positive representations of the truth of their content would be to misunderstand or ignore the traditional nature and function of a declaration, statement of claim or bill. The traditional nature of such an unverified pleading was not that of a representation or warranty of the objective accuracy of the assertions of fact which it contained. It was that of a written identification and communication of the extent of the plaintiff’s claim. Its traditional function was not an evidentiary one. It was to identify the issues of fact which would, in the absence of admissions, arise for determination at the trial by defining the outer limits within which the plaintiff’s case would be confined.”

377. The defendant appears to submit that the various iterations of its Defence should be treated as pleading the general issue and are not verified pleadings.

378. These proceedings do not require verified pleadings: Uniform Civil Procedure Rules 2005 (NSW) rr 14.22, 14.23. I am not persuaded that Jamieson v R is authority for the proposition that a lower standard of pleading as between the parties is justified or that the difference between a non-admission and a denial is displaced.

379. There is a difference between a non-admission, a denial, and advancing a positive assertion(s). Non-admissions and putting the plaintiff to proof, without more, do not amount to unjustifiable or improper conduct: David Syme & Co Ltd v Mather [1977] VR 516 at 527, citing Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729. Furthermore, the defendant is entitled, at least to some extent, to formulate pleadings on the basis of the police officers’ “usual practice”, even where the interaction which gives rise to the complaint, is not remembered.

380. However, that is not what happened here. The defendant’s original pleadings went far beyond non-admissions or reliance upon “usual practice”. It is one thing to maintain that the strip search was justifiable because the searching police officers’ usual practice was to comply with the preconditions and safeguards in conducting a strip search (providing evidence of usual practice is actually produced), and that it was for the plaintiff to prove otherwise. So much is understood. However, the defendant’s pleadings extended to denying particulars about what took place during the strip search of the plaintiff.

381. The defendant denied that the plaintiff was directed to remove her tampon and that the police officer bent down to inspect the plaintiff’s vagina. The defendant denied that the female police officer directed the plaintiff to turn around so that her back was to the officer and further denied that the plaintiff was directed to bend over with her buttocks facing the female officer. It was also denied that whilst in that position the male police officer entered the search area without warning. The defendant expressly denied that the plaintiff was directed to provide her driver’s licence and pleaded that she was rather asked to voluntarily provide her details.

382. Such pleadings are not based on “usual practice”. The specific express denials challenged the credibility and reliability of the plaintiff’s account as pleaded in the SoC.

383. Furthermore, the defendant’s pleadings posited positive assertions about what took place during the interaction between searching police and the plaintiff. By way of example, the Defence to the FASoC, filed on 26 May 2023, pleaded that SC Jarnet’s suspicion was based subjectively on a number of matters including his assessment “of the Plaintiff’s conduct on approaching the entrance” and “his assessment of the Plaintiff’s response to any questions he asked of her”.

Exemplary damages

402. The plaintiff’s claim for exemplary damages is based not only on the conduct of the searching police officers, but the overall conduct of the State, by the senior officers of the NSWPF (senior officers) in failing to exercise reasonable skill and care to ensure the provision of proper training and supervision of police officers in relation to the legal requirements for a nonconsensual strip search in the field. The plaintiff contends that $50,000 in exemplary damages would be appropriate in the circumstances.

403. The conduct of the State relevant to exemplary damages is pleaded at 68A-68D of the SFASoC. The plaintiff’s pleadings assert that at all material times it was the case that most music festivals conducted in New South Wales in the period from 22 July 2016 to 21 July 2022 were policed by substantial detachments from New South Wales police for the purpose of (amongst other things) detecting prohibited substances in the possession of attendees, and that strip searches were one of the primary means police officers were directed to use to carry out the purpose of detecting prohibited substances. Strip searches were likely to be humiliating for the person searched and could give rise to both lasting and immediate traumatic responses. They could also result in the commission of torts of assault, battery, and false imprisonment: [68A.1]-[68A.3].

404. The pleadings also assert that in the period between at least 2016 and 2019, there developed a practice or pattern of conduct by police officers of carrying out strip searches of attendees at music festivals as a matter of routine and not in circumstances lawfully justified by LEPRA: [68A.4].

405. Further, it is pleaded that the State, by the senior officers of the NSWPF, is responsible for authorising the use of strip searches at music festivals and was aware (or ought reasonably to have been aware) of the circumstances pleaded in subparagraphs [68A.1]-[68A.4]: [68B].

406. Notwithstanding this awareness, the State is alleged to have failed to exercise reasonable skill and care to ensure the training delivered to the police officers tasked to police music festivals was adequate to ensure that they adhered to LEPRA and conducted strip searches without committing assault, battery, or false imprisonment. It is also alleged that the State failed to exercise reasonable skill and care to ensure that the said police officers were adequately supervised: [68C].

407. The plaintiff submits that there was an “abject failure” in the training and supervision of police officers in respect of the legal preconditions and safeguards for a lawful strip search.

408. The plaintiff does not seek a “global” award for the conduct she complains of. That is, she does not seek an award that corresponds to disapprobation of the conduct of the defendant vis-à-vis each group member. Rather, she seeks a personal award of exemplary damages to reflect policy objectives of both punishment and deterrence, submitting that the award must “sting”: see (2002) 166 FLR 421; [2002] NSWSC 33 at [133]; *(* *(* at 472; [1973] 1 NSWLR 653 at 657-8.

Evidence relating to exemplary damages

417. A significant volume of the documentary evidence tendered in the proceedings relates to the issue of exemplary damages. The plaintiff and the defendant rely upon portions of that evidence in support of their respective submissions. It is necessary to set out a summary of the evidence. In light of the voluminous nature of that material, the summary is necessarily lengthy.

Statement of Agreed Facts

418. The Statement of Agreed Facts relevantly establishes the following. In October 2018, the Law Enforcement Conduct Commission (LECC) commenced an examination of the practices of the NSWPF concerning the conduct of strip searches outside a custodial setting. The substance of the investigation related to searches carried out at music festivals. On 8 May 2020, LECC produced two reports on specific operations.

419. Operation Brugge investigated the police presence at SITG 2018. The subject complaint concerned a 16-year-old who had been strip searched at the festival following an alleged indication by a drug dog.

420. Operation Gennaker investigated the police presence at Lost City Music Festival in Homebush Park in 2019. The subject complaints concerned three young persons who were subjected to strip searches by police officers.

421. In March 2019, the NSWPF established Strike Force Blackford to investigate five complaints about strip searches performed by police officers, predominantly at music festivals. LECC monitored four of the five complaints investigated by the Strike Force. LECC produced a report dated 21 July 2020, which covered three festivals over 2018 and 2019. LECC’s investigation culminated in a report titled “Inquiry into NSW Police Force strip search practices”, dated 15 December 2020.

422. In 2018, “Police Powers” stickers were created and distributed across the NSWPF. These stickers could be adhered onto pages of police notebooks for use as a ready reference guide at the time of exercising powers to conduct a strip search.

423. The NSWPF Leadership and Capability Command introduced the “Lessons Learned Unit” (“LLU”) in mid-2018. In November 2018, the LLU conducted an evaluation of the way in which strip searches were conducted by police at major events, such as music festivals or sporting events (the “LLU report”). In August 2019, the NSWPF implemented the NSWPF Person Search Manual 2019.

424. The primary policy documents which explain how police are to exercise their general powers and functions are amalgamated in the NSWPF Handbook. The NSWPF updated the Handbook regarding “Person Searches” in October 2019. It relevantly directed police to the new Person Search Manual.

425. The NSWPF introduced a standardised drug detection briefing for all police working at music festivals in late 2019, under which briefings are usually delivered by the Event Commander, Drug Detection Commander and an intelligence team. The briefing contains information about the nature of the event, police powers, drug detection and search processes, and processes for dealing with persons taken into custody.

426. In late 2019 the NSWPF introduced mandatory joining instructions for police working at music festivals. Since then, the joining instructions have been developed into an online education package called Music Festivals Fundamentals. This package:

(i) Contains links to online educational resources which reinforce LEPRA search requirements, including those for strip searches; (ii) serves as a pre-event briefing; and (iii) includes the NSWPF Strip Searches Briefing document, a copy of the police notebook sticker containing strip search fundamentals, and access to short video lessons about strip searches and using Body Worn Video during strip searches.

425. Until September 2019, police officers could self-verify any COPS event that related to a person search. The NSWPF ceased COPS event self-verification on 4 September 2019. COPS events relating to a person search must now be verified by a duty officer or other designated officer.

426. In mid-December 2019, the NSWPF introduced enhancements to the way strip searches are recorded in COPS. These include prompts which pop-up when a strip search event type is created, which contains a description of what constitutes a strip search. As from 21 November 2019, the NSWPF also required commands to conduct their own mandatory monthly audit of all COPS events containing a strip search for both adults and people under 18 years of age.

427. Following the 2013 Mardi Gras and after party, a large number of complaints about police conduct were received amid protest activity and general community unrest with widespread criticism of police officers and the NSWPF. In response, sometime following Mardi Gras in 2013 and before Mardi Gras in 2014, the NSWPF developed a 22-point plan to improve policing strategies and, in particular, the exercise of powers related to drug detection and strip searching at future Mardi Gras events. These strategies were used at Mardi Gras from 2014 onwards. The 22-point plan is annexed to the Statement of Agreed Facts.

Verified discovery

428. The categories of documentary material provided by the defendant by way verified discovery are set out in the affidavit of Mr Walsh, which has been summarised above at [56]-[62]. The defendant discovered a large number of documents including extracts of training manuals, extracts from the Police Handbook, extracts from the now defunct Code of Practice for CRIME, extracts of journal articles and the Police Monthly.

429. No evidence was adduced by the defendant to show the distribution of these materials and whether the training materials were mandatory or optional. No police officers were called to give evidence as to what training they undertook or what instructions they received.

Documents relating to education and training in respect of relevant LEPRA provisions

430. I will summarise the education and training materials produced by way of discovery in the categorical and chronological order in which Ms Nomchong SC and Mr Sexton SC referred to the material.

431. It is submitted on behalf of the plaintiff that the documents summarised below comprise the entirety of the material produced as part of discovery that contain any reference to person searches of any kind (not only strip searches).

432. I am cognisant of the fact that the scope of Category 7 of the verified discovery is documentary material relating to training and education provided “to those police officers who interacted with the Plaintiff at Splendour 2018”, not all police officers. Nevertheless, I accept the plaintiff’s submission that the training and educational materials produced represent the general training and education (with respect to searches) of a police officer who was with the NSWPF in approximately the same period as the three officers who interacted with the plaintiff at SITG 2018.

Police Academy Training

Pre-LEPRA

433. The following documents were produced in response to verified discovery Category 7 and comprise material directed to or made available at the NSW Police Academy. Some documents pre-date the commencement of LEPRA.

434. The first document is titled “PREP Phase III Tutor Guide/Student Handouts”, dated October 1997. On page 23 is a checkbox which states, “Knowledge of Powers in relation to Stop, Search and Detain under the Drug Misuse and Trafficking Act”. Underneath this is another checkbox which states, “Ability to correctly search a personal offender. (Care for personal safety, needle stick etc)”. On page 24 are “Action-Research Questions”, which include “When may you Stop, search and detain a person under the Drug Misuse and Trafficking Act?” and “What constitutes ‘reasonable suspicion’ in relation to this legislation?”.

435. The next document is a Study Guide titled “The Criminal Justice System and the Police Role”, dated November 2001. Only one passage refers to search powers, on page 73. This passage has the heading “Summary of search powers” and sets out four main occasions when an officer may have a lawful power of search: pre-arrest search; search on arrest; search before transport; and search at the station. The passage only covers general person searches and there is no reference to strip searches. No reference is made to reasonable suspicion in this section.

436. The next document is a training workbook titled “Critical Assessment of Investigative Practice”, dated November 2002. Module 3 is titled “Search and seizure”. The only reference to person searches is on page 9 of the workbook, which contains questions.

437. Question 15 states:

“In what two circumstances does [Halsbury’s] Laws of England (4th ed, Vol 11) state that the common law authorises the search of an arrested person?”.

438. Question 16 states:

“Citing Lindley v Ruttner (1981) QB 128 as authority, the authors state (at page 30) that, regarding personal searches in custody, the ‘proper course, in ordinary circumstances, was for the police officers to inform the person of the reason for the search… But there might be circumstances when it was not necessary to give reasons, for example when the reason was obvious, or when it was impracticable to communicate the reason.’ Can you think of a scenario which illustrates each of these examples?”.

439. The next document is also titled “Critical Assessment of Investigative Practice”, dated November 2002. This was also a training module and contained no reference to strip searches or reasonable suspicion.

440. The next document is also a training module, titled “Critical Assessment of Investigative Practice Module 3” and dated November 2002. A section on search and seizure begins on page 5 of the document. This passage refers to both common law principles on search and seizure and provisions in the Crimes Act 1900 (NSW) on search and seizure. The focus from page 6 onwards is on searches conducted pursuant to warrants. No reference is made to reasonable suspicion or strip searches.

441. All of the above training materials pre-date the commencement of LEPRA. Little weight attaches to them in determining the question of whether there was an abject failure by senior officers to educate and train police officers in the conduct of strip searches.

Post-LEPRA

442. The first document post-dating LEPRA is a Study Guide titled “Simulated Policing (Acquiring Confidence) & Operational Safety and Tactics 1”, dated November 2006. Topic 6 in this document is “Searching Persons”. The overview at the beginning of the topic states:

“…Police must be mindful that while searching is part of being a police officer, it is also an invasion of privacy. For this reason, searches performed by police must be justified and conducted in a professional manner…

The difficulty is that police are not permitted to search just anyone on the street. There are certain guidelines that have been tested, tried and proven and by which police are bound. Any search that is not lawful could result in civil or departmental action against an officer.

Its important officers understand laws that govern police in relation to stopping, searching and detaining a person.”

443. One of the learning objectives set out on page 17 of the Study Guide is to “explain the NSW Police policy regarding strip searches and searching persons of an opposite gender”. Another objective is to “define reasonable suspicion and reasonable belief”. There is no further reference to the policy on strip searches in the document.

444. Over the page, on page 18 of the document is a reference to reasonable suspicion, which states, “The concepts of reasonable suspicion and reasonable belief must always be considered before exercising the powers to search”. The Study Guide goes on to cover search techniques. On page 20, there is reference to special circumstances that may arise when conducting a search, including “strip searching”. The Study Guide states that one of the readings will “explain in detail how to search in each of these circumstances”. The content of the readings is unknown.

445. The focus of this topic in the Study Guide is practical search techniques. There is no reference in the Study Guide to provisions of LEPRA. There is no reference to the particular requirements under s 31 of LEPRA including the requirement that a police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary. There is no reference to the safeguards under ss 32 and 33 of LEPRA.

446. The next document is a Study Guide/Residential School Workbook titled “Investigation & Communication in Policing 1” and dated November 2006. On page 16 is the heading “Human rights”. Reference is made to the Universal Declaration of Human Rights and specifically to the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The document then states, “Police must be careful that they do not unlawfully infringe on any of these rights when conducting investigations”. The only reference to searching in this document is on page 46. Section 23 of LEPRA as extracted in the “Police Powers Handbook” is listed as reading material. There is then a question on searching pursuant to s 23. There is no reference to s 31 strip search powers. There is no reference to ss 32 and 33 safeguards.

447. The next document is a Study Guide titled “Police, Crime and Society 2”, dated April 2007. On page 39, the document sets out an overview of the content to be covered in week 5 on “Drug law enforcement”. The document states:

“Attention will be paid to the Drug Misuse and Trafficking Act (1985) and the Law Enforcement (Powers and Responsibilities) Act NSW, particularly the provisions of which you must be mindful in your work as a first response operational police officer.”

448. Section 21 of LEPRA is listed as reading material.

449. Page 42 includes the following question:

“How does the application of search powers under s.21 of the Law Enforcement *(*Powers and Responsibilities) Act NSW relate to drug activity?”

450. Page 44 includes a case study and the following question:

“What circumstances suggest you would be justified in searching the man and the car under s.21 of the Law Enforcement (Powers and Responsibilities) Act NSW?”

451. Pages 56 and 57 include case studies and associated questions. Part of the case study on page 56 is as follows:

“Merchant is searched and $800.00 is located secreted in her bra. Merchant states that she always carries money in her bra when she goes to a nightclub because she doesn’t have room to put a wallet or purse in her other clothing. She is wearing a bulky jacket over her other clothes”.

452. The following question is, “Where do you obtain your powers to search Fellowes and Merchant? What is your justification for searching them?”. This question is identical to that asked after the other case studies involving general person searches. Despite this scenario clearly involving more than a general person search, there is no reference to the provisions of LEPRA concerning strip searches, unlike the reference to s 21 as above. There is also no reference to or explanation of the circumstances that justify a search of the character’s bra in the case study, or any acknowledgment that this type of search has additional preconditions as stipulated by LEPRA.

453. There is no reference in the document to strip searches. There is no reference to ss 31, 32 or 33 of LEPRA.

Mandatory continuing education

454. These documents comprise the additional mandatory continuing education units that were available to officers between 1999 and 2018 that were produced in response to verified discovery Category 7.

455. The first document is titled “Mandatory Continuing Police Education Scheme”, dated January 1999. This package pre-dates LEPRA. There are sections on powers of search and seizure, powers to stop and search persons and vehicles, and search warrants. Reference is made to statutory powers of search and seizure in the Crimes Act. Page 43 states as follows:

“Personal searches of the body in the absence of an arrest are confined to “frisk” type searches unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body.”

456. On page 44 there is a section on the strip search of prisoners as follows:

“There will be occasions when all the circumstances of a particular case will demand a physical search of person, including the surface of the body, commonly known as a ‘strip-search’. This may involve the removal of any or all clothing.

Situations where a strip search may be necessary include where:

● critical evidence relating to the offence being investigated might be lost;

● police reasonably suspect the offender has anything concealed upon his/her person which could present a real danger to themselves or other persons;

● police reasonably suspect the offender may have anything on his/her person which might assist in an escape from lawful custody.

It is considered that these occasions will be rare and will only occur after reasonable grounds establish the need for such a search. A prisoner will not be strip-searched unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body. A prisoner shall not be strip-searched unless that person knows in substance the reason that it is being imposed.

The person should be taken to the nearest appropriate place for the search to be conducted. This does not necessarily have to be a police station, although in city areas a police station may be nearby and provide a private area to conduct the search.

Police can seize only what is upon the person. Police shall not conduct a search of the various cavities of the body. A search of the cavities involves a medical examination whereby police must comply with the Code of Practice for CRIME.

The shedding of clothes involves an invasion of the modesty or dignity of the prisoner concerned. Police shall evaluate all the individual circumstances of the case and consider the known or apparent disposition of the prisoner. The actual strip-search should away from the public view. Where the circumstances exist, inside an enclosed area and the conduct of the strip-search should be in such a manner so as not to subject the person to any unnecessary embarrassment or degrading treatment. The place of the strip-search should be in a location where such a search can be carried out under close security.

A record of the actual strip-search shall be made in the officer’s official notebook and in the instance of a prisoner being searched by a person of the opposite sex, make an “occurrence only event” on the Computerised Operational Policing System, (COPS), including details on the Station Summary. It is emphasised that police must display a professional approach at all times and be aware of the fact that they may be made to account for their actions regarding the execution of a strip-search at the scene of an arrest.”

457. On page 83, as part of the case study exercises is the following:

“Strip Search

You detain a person whom you reasonably believe is wanted in Victoria as an escapee and who, since escaped, has been involved in armed robberies and shooting to avoid apprehension. You consider the need to effect a strip-search.

Q.1 What circumstances would need to be present to justify this action?”

458. On page 87, the question is answered as follows:

“Strip searches may be used on this occasion as the offender has since escaped from custody and police need to search the offender as they may have items on their person which might assist in an escape or present a danger to police.”

459. Later in the document, there is an extract from what appears to be a slide show of some sort which sets out the same three dot points as above as to when a strip search might be considered. Over the page, another slide reaffirms that a record of all strip searches should be made in the officer’s notebook and where a search is performed on a person of the opposite sex an Occurrence Only COPS entry must be made.

460. The next item is a video from approximately 2014-2015. The only reference to strip searches is at minute 1.11 of the video. A screenshot of that part of the video was handed up during oral submissions. The slide sets out the following:

“Types of search

Strip Search:

means a search of a person or of articles in the possession of a person that may include

(a) requiring the person to remove all of his or her clothes; and

(b) an examination of the person’s body (but not the person’s body cavities) and of those clothes

Students should be directed to LEPRA for procedures and obligations for Strip searches

Example Privacy & Dignity, Age etc”.

461. There is no reference to the relevant LEPRA provisions, what they provide, examples of what is meant by “seriousness and urgency of the circumstances” pursuant to LEPRA, the necessary safeguards and how they may or may not apply. The notation that students should be directed to LEPRA says nothing about whether, and to what extent, they were so directed.

462. The next document is titled “Mandatory Continuing Police Education 1617/1: Body Worn Video”, dated July 2016. The only reference to strip searches is on page 2 where it states, “Intimate searches should not be recorded on BWV”.

463. The next document is material said to be available on the NSWPF intranet as at 3 November 2016 on stop, search and detain. The material relevantly states, “Remember the safeguards when you are exercising your powers relating to stopping, searching and detaining of persons. The safeguards are set out in Part 15 of LEPRA”. Section 21 of LEPRA is then extracted. Underneath the extract of s 21 are some notes, which include:

“Note 1: ‘Reasonable suspicion is a state of conjecture where proof is lacking. Suspicion can take into account matters that cannot be put into evidence such as hearsay material in WebCOPS, intelligence, and being told something by a person. The information must afford you reasonable grounds for the suspicion so that regard must be had to the source of the information and its content in light of the whole of the surrounding circumstances.”

464. Other provisions extracted include ss 21A, 27 and 28. Section 33 of LEPRA, ‘Rules for conduct of strip searches’ is then set out in full. No guidelines or instructions are provided in respect of these safeguards, only the text of the provision is extracted. Section 31 of LEPRA, concerning the statutory criteria for strip searches, is not extracted or referred to in the material. Section 32 is also not extracted or referred to.

465. The next document is a six minute intensive training module dated 1 September 2016 titled “LEPRA – Power to Search (2)”. This document sets out a scenario and a set of questions as to whether police officers can conduct a search of the person in the scenario. The third question asks, “You search the person but cannot find the knife. What would you need to consider in determining whether you could carry out a ‘strip search’ at the scene?”. The document then states as follows:

“You could carry out a strip search at the scene if you suspected on reasonable grounds that the strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary.

You would also have to comply, as far as is reasonably practicable, with the requirements set out in section 32 (preservation of privacy and dignity during a search) and section 33 (rules for the conduct of strip searches).”

466. This appears to be the first document that refers to all three provisions (ss 31, 32 and 33 of LEPRA) although no guidance is provided as to what may constitute “seriousness and urgency of the circumstances”. The reference to ss 32 and 33 is perfunctory.

467. The next document is another six minute intensive training module extracted from the NSWPF intranet as at 3 August 2018 titled “Strip Searches”. This document sets out s 31 of LEPRA and contains a link to the statutory provision. Once again, there is no guidance provided as to what constitutes seriousness and urgency of the circumstances. Furthermore, there is no reference to ss 32 and 33 of LEPRA. The module also notes that you cannot carry out a strip search solely because a person is in custody to be transferred to another location and Corrective Services requests that all persons be strip searched prior to transfer.

NSWPF Handbook and the Code of Practice for CRIME

468. The next documents comprise material from the NSWPF Handbook and the Code of Practice for CRIME produced in response to verified discovery Categories 7 and 8.

469. The first document is the iteration of the NSWPF Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) that was in force as at March 2017. On page 10, the Code sets out the police powers to which the Pt 15 safeguards in LEPRA apply. Pages 11-16 of this iteration of the Code were omitted from the verified discovery. Page 39 states that, “The search carried out should be the least invasive kind of search practicable in the circumstances”. Page 40 contains a definition of a frisk search, an ordinary search and a strip search and then states as follows:

“Any personal search must be carried out in a manner that preserves the privacy and dignity of the person being searched, as far as is reasonably practicable. Section 32 of LEPRA sets out the general requirements for conducting personal searches – see Annexure A.

Any search that involves the removal of more than outer clothing should be treated as a ‘strip search’ and carried out in accordance with Annexure A. A strip search should only be carried out if you suspect on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.”

470. The following appears on page 100:

“Generally, conduct a frisk search only. A strip search cannot be conducted unless clearly justified under section 31 of LEPRA, taking into account the object you are searching for. If you are considering a strip search refer to Annexure A.

Record all searches, those present, the reasons for your suspicion, all conversations and actions in your notebook. Ask the person to sign your entry. As soon as practical, make an appropriate COPS record.”

471. Annexure A is found at page 146 and is titled “Rules for conducting personal searches”. Section 32 of LEPRA is extracted. Annexure A then contains a subsection on strip searches, which includes the following:

“…Section 31 of LEPRA limits the occasions on which a strip search can be conducted. You must suspect on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.

You may not strip search as a matter of policy. You must be able to justify your decision in each case.

…

In addition to complying with the safeguards in section 201 of LEPRA, and the general rules for preserving a person’s privacy and dignity during searches in section 32 of LEPRA, section 33 of LEPRA sets out specific rules for conducting strip searches [the safeguards in s 33 are then extracted].

…

Remember, it is always open to you to consult a senior officer (supervisor, duty officer, custody manager) before undertaking a strip search. Always create a record of your search, either in your notebook (if in the field) or in the custody record (if at a police station) and include your reasons for conducing it, conversations and those present.”

472. This was a proper recitation of the statutory requirements and safeguards for a strip search, though it does not provide any additional instructions as to when the preconditions for a strip search may be met.

473. This Code was withdrawn from the NSWPF in December 2017 and did not exist as at SITG 2018 (affidavit of Mr Walsh dated 2 May 2025 at [18]). A letter annexed to Mr Walsh’s affidavit by the defendant’s legal representatives provides the following explanation:

“In about December 2017, the Code was ‘retired’, which involved its content being broken up and inserted into the various chapters of the Handbook. It did not exist as at the date of Splendour 2018.

Following retirement of the Code, there was no standalone, consolidated ‘Handbook’.

The structure of the “Handbook” was analogous to a piece of unconsolidated legislation where there is an originating Act and then a series of amending Acts.”

474. The next document is an undated extract from the Handbook titled “Consensual Searches”. This predominantly deals with s 34A of LEPRA. There is also reference to the safeguards in ss 32 and 33 of LEPRA, but the extract does not substantively deal with strip searches or refer to s 31.

475. The next document is an extract from the Handbook on searches while in custody as at 3 August 2018. The extract sets out s 31 of LEPRA and provides a link to s 32 of LEPRA. The document also notes that the search should be carried out by an officer of the same sex and where possible, in the presence of a senior officer not connected with the investigation.

476. Although this document refers to ss 31 and 32 of LEPRA, it does so in the context of searches of people in custody only.

Journal articles and newsletters

477. The next documents comprise the standalone journal articles, newsletters and other informational materials including the Police Weekly and the Police Monthly produced in response to verified discovery Categories 7 and 17.

478. With respect to these documents, there is no evidence as to how these documents were circulated or whether there was any direction that NSWPF officers were to read them. In the absence of evidence as to how this material was promulgated, the inference is that they were optional reading for police officers.

479. The first document is a Police Service Notice dated 14 February 2000. This was prior to the enactment of LEPRA. Under the heading “Strip Searches” is the following:

“A review of the guidelines on strip searching, which are contained in Annexure A of the Code of Practice for CRIME, has identified the statement that these types of searches are ‘rare’ and has the potential to impede the proper exercise of your judgement in each case.

Accordingly, the reference to ‘rare’ in relation to strip searching is deleted from the Code of Practice for CRIME.

You are reminded, however, that strip searching is not to be conducted as a matter of course. Strip searching is an invasion of an individual’s privacy and you must be able to justify taking such action, which is to be based on reasonable grounds. Part of your decision making process will necessarily involve an evaluation of the circumstances of the particular case and the known or apparent disposition of the person you have in custody. Remember, strip searches, when conducted, are to be done away from public view (which includes others in custody) and recorded (notebook or custody record). Before conducting a strip search, you should consult with a senior officer (duty officer, crime manager, custody manager) and if performed, the search should be in front of one of these officers.

For further guidance on strip searching, refer to the Code of Practice for CRIME.”

480. The next article is an extract from the Police Weekly dated 19 December 2006. This post-dates the enactment of LEPRA. The article states:

“Police are reminded that there is currently no legislation in NSW that allows the searching of a person’s body cavities by intrusive methods. The only method by which a person’s body cavities may be searched is by the authorised use of medical imaging (X-ray etc.) under Part 11 of the Law Enforcement (Powers & Responsibilities) Act 2002 (LEPRA).

Part 11 of LEPRA provides for police, in certain circumstances, to ask a person to consent to, or apply for a court order for, the use of medical imaging to carry out an ‘internal search’ of a person who is suspected of concealing prohibited drugs internally. ‘Internal search’ in Part 11 of LEPRA means any search of a person’s body involving an ultrasound, MRI, X-ray, Cat scan or other form of medical imaging, but does not include a search of a person involving an intrusion into the person’s body cavities.

Section 32 of LEPRA sets out specific rules that are intended to preserve the privacy and dignity of people during personal searches. Section 33 of LEPRA contains specific safeguards for people who are strip searched and states that ‘a strip search must not involve a search of a person’s body cavities or an examination of the body by touch’.

The Crimes (Forensic Procedures) Act 2000 provides for police, in certain circumstances, to ask for a person’s consent to, or to apply for an order for, a forensic procedure…”.

481. The focus in this article is on the prohibition on searching a person’s body cavities or an examination of the body by touch. It deals primarily with what an officer must not do, as opposed to providing any instruction or guidance about exercising the power to conduct a lawful strip search in the field.

482. The next article is an extract from the Policing Issues & Practice Journal dated May 2013 titled “Person Searches and the Section 32 Safeguards”. The article refers to the power to conduct a search in ss 21, 23 and 24 of LEPRA and then discusses the safeguards in s 32 of LEPRA. The article specifically addresses how s 32 applies to strip searches and what factors might influence the decision to strip search as follows:

“There is no provision in legislation or NSWPF policy that authorises the blanket strip searching or anyone who comes into police custody. In fact section 32(5) of LEPRA requires police to conduct the least invasive kind of search in the circumstances.

In addition, section 31 of LEPRA provides some guidance in relation to strip searches. It states that a police officer may only conduct a strip search if:

‘…the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.’

Accordingly, if a strip search is not necessary then we are not justified in conducting it. Police who conduct strip searches as a matter of course, for example, on all persons bail refused, potentially leave themselves and/or the NSWPF open to criticism and litigation.

…

Even though there is not an unmitigated rule regarding strip searching of someone in custody, there are a number of factors that may influence the decisions including:

- any previous history of mental health, self harm, violent behaviour, escape or escape attempts

- the person’s current behaviour or mental health state

- the person’s level of intoxication

- the offence they are in custody for

- any other items located during an earlier search.”

483. The article is confined to strip searches in custody, not in the field.

484. The next article is an extract from the Police Monthly dated July 2014 titled “LEPRA: long-awaited amendments”. The article notes that the body cavities of a person (which cannot be searched under LEPRA) do not include the person’s mouth. Under the subheading “Strip searches”, the article then states as follows:

“Section 31 – amended to provide for different tests according to whether the strip search is carried out at a police station (or other place of detention), or at another place. A police station/other place of detention: if officer suspects on reasonable grounds it is necessary for the purpose of the search. In any other place: the same test applies but, in addition, the strip search must be necessary because of the seriousness and urgency of the circumstances.

Section 33 – makes it clear that the prohibition on a strip search being conducted in the presence or view of a person who is of the opposite sex to the person being searched does not prevent a parent, guardian or personal representative of the opposite sex to the person being searched from being present during the search.

Section 33 (3) – amended (and new subsection (3A) added) to provide that a strip search of a child or person with impaired intellectual functioning may be conducted in the absence of a parent, guardian or support person but only if a police officer reasonably suspects that delaying the search is likely to result in evidence being concealed or destroyed or an immediate search is necessary to protect the safety of a person. In such a case, the police officer conducting the strip search must record the reasons for conducting the search in the absence of a parent, guardian or support person.”

485. The article then discusses amendments to s 32 of LEPRA. While this article refers to the added requirement that the strip search must be necessary because of the seriousness and urgency of the circumstances if conducted in the field, no instruction or guidance is provided as to what might constitute “seriousness and urgency”.

486. The next article was published in the Police Monthly in September 2016 and is titled “New powers among LEPRA changes”. This discusses the same amendments outlined in the above article, namely that the test for conducting a strip search at a police station was changed to be simply “whether you suspect on reasonable grounds that the strip search is necessary for the purpose of the search. You no longer need to consider whether the strip search is necessary because of the seriousness and urgency of the circumstances”. The article then notes that the test for strip searches in the field has not changed and requires that you suspect on reasonable grounds that the strip search is necessary and that the seriousness and urgency of the circumstances make it necessary. No instruction or guidance is provided as to what constitutes “seriousness and urgency of the circumstances”.

487. The next article is dated May 2018 and titled “Police Gazette” but seemingly appears in the Police Monthly. Under the heading “LECC investigating strip searches”, the article notes that LECC is currently looking into strip searches performed on people in custody. The article then outlines the requirements contained in ss 27 and 31 to 33, including the following:

“Section 31 to 33 of LEPRA sets out when and how strip searches can be conducted. Reasonable privacy must be provided for the person being searched and the search must be done as quickly and least invasively as is reasonably practicable. The searching officer must be of the same sex as the person being searched.

The strip search mustn’t occur in the presence or view of a person of the opposite sex, unless there’s no objection. It’s important to comply with the provisions of Part 15 of LEPRA. This includes the need to provide the reason for the strip search to the person being searched. Additional requirements apply to the strip search of young and intellectually impaired persons.

A record should be made of the reasons for the strip search and the manner in which Part 15 was complied with. It’s also important to note that a strip search carried out simply because a person is in police custody is not a valid exercise of power.

A failure to comply with the provisions of Part 15 of LEPRA or to satisfy the grounds required for a strip search to be carried out could make a police officer potentially liable to disciplinary action. Furthermore, it could lead to civil action being commenced by the person unlawfully strip searched.”

488. These were all the journal articles produced under verified discovery that refer to searches and strip searches.

Operational orders, joining orders and instructional material in respect of music festivals

489. It is evident from the documents summarised below that the operational orders, joining instructions and briefing material in evidence were prepared, checked and signed off by senior members of the NSWPF (e.g., individuals in the positions of Chief Inspector and Superintendent).

SITG 2018

490. These documents comprise the directives, operational orders, joining instructions, briefings and similar documents created for or provided to NSWPF officers at SITG 2018 (the music festival at which the plaintiff was strip searched) produced in response to verified discovery Category 3.

491. The first document is titled “Splendour in the Grass 19-22 July 2018 Joining Instructions”. These instructions were prepared by [redacted] and signed off by [redacted]. On page 4, the intent of the instructions is expressed as, “To provide a safe environment for persons to attend Splendour in the Grass 2018 and maintain public confidence and safety in the surrounding townships”. The instructions cover issues such as intelligence, rostering, tasking, deployment, meal breaks, uniform, professional standards, critical incidents and high-risk situations. There is no reference in the Joining Instructions to drug detection dogs, searches or strip searches.

492. The next document is the Operational Orders for SITG 2018, dated 27 April 2018. These Orders were prepared by [redacted] and checked by [redacted]. Page 4 of the Orders states, “The significant risk again to the festival in 2018 is the significant number of patrons, a proportion of which are affected by drugs and alcohol”. Page 10 notes that a detachment of 340 police are to be deployed, consisting of 12 core groups. These groups include “Drug Dog” and “Drug Dog Operation (Region Response Team)”. Page 12 notes, “A Drug Detection Dog Operation is being run at the event site from Thursday 19 to Saturday 21 July 2018 and separate operation orders, staffing and tasking are attached to these Operational Orders”.

493. The Operational Orders set out the statutory powers of arrest and the safeguards in ss 201 and 202 of LEPRA. Section 99 of LEPRA is extracted. Page 24 discusses searching a person on arrest. Page 25 states, “Remember when exercising your power to search a person on arrest, you must comply with section 201 of LEPRA (safeguards) and the general rules relating to personal searches (see Annexure A)”. There is no reference to s 21 searches, s 31 searches or the safeguards in ss 32 and 33 of LEPRA.

494. Turning to the specialised Operational Orders for the Drug Dog Operation at SITG 2018, these were dated 18 July 2018. They were prepared by Detective Sergeant Matthew Woods and checked by [redacted]. On page 3, the following is noted:

“Attendee’s [sic] of this music festival come from across Australia and in fact, the world with major demographic predominately being younger persons attracted to the “alternate” party lifestyle. Unfortunately, the lifestyle is prolific in the use and abuse of illicit drugs; all while attracting the associated criminal enterprises linked to the lucrative drug trade.”

495. The Orders then set out statistics on past operational deployments, including statistics on the amount of drug overdoses, amount of drug detections and the amount of drugs seized.

496. The Orders then state as follows:

“In 2018, the focus of the operation is to promote harm minimisation through early detection and to deter illicit drug activity. This will be achieved by targeting drug suppliers/users through the use of drug detection dogs at points of entry and other key locations… There will be a combination of static and mobile operations.”

497. On page 5, it is noted that general duties police will be in attendance for operational deployments.

498. Page 6 includes the following:

“Whilst working at the festival police will search any persons/vehicles at one of two areas set aside for privacy. These areas are both inside and outside the main gate at the festival. The searching of persons should be conducted in private where possible, to protect the privacy of the persons [being] searched.

Plain clothes police will identify and target person/s of interest acting suspiciously, when approaching the search area. As in previous years, these person/s may try to dispose or hide drugs prior to passing through this area.

Where appropriate alternatives to arrest will be utilised. … If the need arises whereby an arrest occurs normal arrest procedures will commence… LEPRA safeguards are to be adhered to.”

499. The only relevant notation is that the “LEPRA safeguards are to be adhered to”. Those safeguards are not referenced or explained.

500. Page 7 states that “All events will be recorded on COPS under the operation name “SPLENDOUR 2018”. Generic narrative to be utilised…”.

501. Page 7 also contains the following:

“At the completion of the briefing, police will conduct a search of the festival, camping grounds and any vehicle check points with the assistance of the drug detection dogs.

The searching police will walk behind the detection dog and if the dog indicates that there may be the presence of drugs in the air space around a person, then a member of the team should make their own assessment before they take this person to a discrete area and search them. Police should at all times be aware of officer safety and police powers pursuant to LEPRA.”

502. A similar instruction is reproduced on page 8:

“The searching police will stand near the drug detection dogs and if the dog indicates that there may be the presence of drugs in the air space around a person, then a member of the team should make their own assessment before they take this person to a discrete area for further investigation and a search if appropriate. Police should at all times be aware of officer safety and police powers pursuant to LEPRA.”

503. The instructions direct that a search should be conducted “if appropriate”. This is not the same as reminding searching officers of the preconditions required for a strip search as set out in s 31(b). No reference is made to the safeguards, beyond the general reminder to be “aware” of police powers pursuant to LEPRA.

504. On page 9, under the heading “Discreet Search Area”, the Orders state that, “Tents at the scene will be used to conduct the searches and exhibits will be stored in a secure exhibit box. Scales and drug bags to be provided by exhibit officers”. There is no other reference to searches or the relevant provisions in LEPRA.

505. The final document in this category is the “Briefing Notes – SITG 2018”. There is no reference to searches, strip searches or LEPRA in that document.

506. It is clear that these directives, joining instructions, operational orders and briefings do not set out the relevant mandatory requirements and safeguards under LEPRA and give no instruction or guidance as to how they should be complied with. Essentially, they assume that police officers are adequately trained and educated in respect of these requirements and safeguards.

SITG 2017

507. These documents comprise the directives, operational orders, joining instructions, briefings and similar documents created for or provided to NSWPF officers at SITG 2017.

508. The first document is the Operational Orders for SITG 2017, prepared on 11 July 2017. The only reference to searches is to searching on arrest and the LEPRA safeguards in ss 201 and 202. Again, officers are reminded to comply with the “general rules relating to personal searches”. There is no reference to strip searches or ss 31, 32 and 33 of LEPRA.

509. The next document is the specialised Operational Orders for the Drug Dog Operation at SITG 2017, dated 18 July 2017, which is substantially the same as the Orders for SITG 2018. There is no reference to strip searches or to ss 31, 32 and 33 of LEPRA. The Orders state:

“…if the dog indicates that there may be the presence of drugs in the atmosphere around a person, then a member of the team should make their own assessment before they take this person to a discrete area for further investigation and a search if appropriate. Police should at all times be aware of officer safety and the Powers outlined in LEPRA”.

SITG 2016

510. The Operational Orders for SITG 2016 were prepared on 11 July 2016. The Orders are nearly identical to those for SITG 2017 and 2018. There is no reference to strip searches or ss 31, 32 and 33 of LEPRA.

511. The Operational Orders for the Drug Dog Operation at SITG 2016 were prepared on 19 July 2016. The reference to searching is in the same terms as for SITG 2017 and 2018. There is no reference to ss 31, 32 and 33 of LEPRA or the statutory criteria and safeguards in those provisions, only the instruction that police should be aware of the “Powers outlined in LEPRA”.

SITG 2015

512. The Operational Orders for SITG 2015 were prepared on 16 July 2015. These are substantively the same as the Orders for SITG 2016, 2017 and 2018. While there is reference to provisions of LEPRA in the context of arrests, there is no reference to ss 31, 32 or 33 of LEPRA or strip searches.

513. No specialised drug dog operational orders were discovered in relation to SITG 2015.

SITG 2014

514. The Operational Orders for the Drug Dog Operation at SITG 2014 were prepared on 11 July 2014. Like the Orders for 2015, 2016, 2017 and 2018, these Orders make no reference to ss 31, 32 and 33 of LEPRA or to strip searches.

515. Notably, the 2014 Orders state on page 6-7 that “searching police will walk behind the detection dog and if the dog indicates that there may be the presence of drugs in the atmosphere around a person, then a member of the team should take this person to a discrete area and search them” (emphasis added). This instruction was refined in subsequent years to note that the officer should make their own assessment, as set out above.

Defqon 2018

516. Operational orders for other festivals support the contention that SITG 2018 was not an isolated event. Rather, the same lack of training and instruction was observable across a number of events and festivals in NSW.

517. The Drug and Investigation Operational Plan for Defqon 2018 contains on page 3 a section titled “Phase 2 – Drug Detection Dog Operation”. The instructions include that, “Once the drug detection dog makes an indication, the person of interest will be approached by Police and removed to the provided secure area where that person can be searched”.

518. It is unclear whether these instructions were referring to a person search or a strip search. The instruction suggests that it is sufficient, for a search to be conducted in a secure area, that a drug detection dog has made an indication. That instruction is questionable given the contents of a Current Issue Paper produced by the NSWPF in approximately 2019 on “Drug Dogs (Policing Practices at music festivals)”, which refers to drug detection dogs having “only a 30% hit rate for drugs found based on their indications”.

Hot Dub Wine Machine Concert 2018

519. The Operational Orders for this event in March 2018 included the following (emphasis in original):

“If in the view of arresting police an offender should be strip searched, permission is first to be sought from the Field Commander. Reasons why this type of search should be carried out are to be given. The decision to conduct a strip search will be the Field Commander’s. A tent has been erected for this type of search.

In all cases police are to be mindful before and during all searches of modesty and privacy issues. Areas of the show ground are out of public view or in less prominent areas. These areas should be used and will be shown to police on arrival at the venue.

“POLICE SHOULD BE MINDFUL THAT AN INDICATION BY A DRUG DETECTION DOG, THAT A PERSON MAY HAVE COME IN CONTACT WITH A PROHIBITED DRUG, IS NOT REASONABLE CAUSE TO CONDUCT A SEARCH ON IT’S OWN. OBSERVATIONS OF, AND CONVERSATIONS WITH, THE POI WILL ALSO ASSIST IN OBTAINING REASONABLE CAUSE TO SUSPECT A PERSON MAY BE IN POSSESSION OF A PROHIBITED DRUG.”

520. These Orders show a greater level of supervision of strip searches than the operational orders for similar events the same year, as the decision to strip search must be made by the Field Commander. There is also direction that an indication by a drug detection dog is insufficient.

521. There are no further instructions with respect to strip searches.

Harbourlife 2018

522. On page 9 of the Operation Orders for this event is a diagram that depicts the positioning of three drug detection dogs, adjacent to tents. The diagram indicates that patrons will walk past the drug detection dogs and can then be diverted to the tents. This leads to the inference that infrastructure was being put in place to facilitate searches and that it was expected that searches would be conducted as part of the drug dog operation.

523. There are limited instructions with respect to searching. The following is included on page 14:

“ALL strip searches of persons are to be conducted in the search tents located beside the mobile Command Bus.

…

Police are to give consideration to powers given under the Law Enforcement (Powers and Responsibilities) Act in relation to searching persons. Searching officers are reminded that an indication from the Drug Detection Dog alone DOES NOT constitute reasonable suspicion to search. Special consideration is to be given to privacy when undertaking strip searches and tents are to be utilised. Police will record all interactions with persons.”

524. There is reference to general adherence to LEPRA. There is also reference to special consideration of privacy for strip searches. However, there is no mention of the added pre-requisites for strip searches compared to general person searches (seriousness and urgency of the circumstances).

525. Page 19 includes the following:

“Strip Searches: The NSWPF CCTV SOPs state that all strip searches are to be conducted in a private [area] not covered by CCTV. There are three female and three male tents set up where all searching is to take place. In relation to the powers in relation to strip searching:

Section 31 Strip Searches

Section 32 Preservation of privacy and dignity during search

Section 33 Rules for conduct of strip searches”.

526. This is one of the only instances where the three provisions of LEPRA are mentioned in the operational orders. The provisions are not explained or extracted in full.

Defqon 2017

527. The Master Operation Orders for Defqon 2017 include on page 11 details of the drug dog operation. Eighty-eight police were rostered to assist with the operation.

528. On page 40 of the Orders is a flowchart depicting how a person of interest would be taken to police to be searched, then if drugs were found, moved onto the next desk to weigh the drugs, and if no drugs found, released. There is no guidance in the Orders with respect to how the searches should be conducted.

529. On page 36, under the heading “Arrest Procedures”, the Orders note that “Compliance with safeguards of LEPRA is strictly required”. There is no other reference to LEPRA and no reference to ss 31, 32 and 33.

530. In the Drug Dog Operation Orders for this event, the following is set out on page 3:

“If a dog indicates a suspect, the team leader will allocate the officers to engage the suspect and facilitate a search of the suspect at the Compound.”

531. This suggests that a person search is an automatic consequence flowing from a positive drug dog indication.

Midnight Mafia 2017

532. In the Operational Orders for Midnight Mafia 2017, there is a chronology of resource allocations and timings, which includes 70 drug dog support officers and 5 police drug dogs and handlers.

533. On page 7 of the Orders are the following instructions, “Drug Detection Dogs & Drug Detection Dog support Officers – Attend Briefing, move to entry point and conduct Drug Dog Operation”.

534. Page 11 notes the following tasks allocated to the Drug Detection Dog Support Officers (emphasis added):

535. Assist Drug Detection Dogs at the entry gates to the venue.

536. Detect and identify patrons attending the venue who may be in possession of illicit drugs.

537. Conduct person searches in accordance with the provisions of LEPRA.

538. Escort offenders to the Custody Bus if transport not required.

539. Process offenders when identified.

540. Be deployed at the direction of the Event Commander.

541. Exhibit officers will be responsible for the security, the recording and weighing of all drug exhibits. The exhibit officers will be accountable for all drug bags. The drug exhibits will be returned to the Auburn Police Station at the completion of the operation by the exhibit officers.

542. No further briefing or instructions are set out with respect to the drug dog operation. There is no further elaboration on “Conduct person searches in accordance with the provisions of LEPRA”.

FOMO 2017

536. The Operational Orders for the FOMO Music Festival in 2017 note that there would be a Drug Detection Operation involving 9 rostered police. The Orders provide as follows:

“The drug detection dog will be positioned at the front entry of the venue. If any detection is made police will escort the person to a provided facility which will be located a short distance away. Here a marquee will be set up to provide police with a discrete space to conduct a person search.

…

During the drug dog stage of the operation, officers need to be aware that they are not to rely on the efforts of the drug detection dog alone. Officers are required to use their own observations to stop, search detain any person they believe may be in possession of any illegal items.”

537. The Orders make no reference to strip searches or relevant provisions of LEPRA. There are no further instructions with respect to conducting searches.

Subsonic 2016

538. In the Operation Orders for this event, there is no specific reference to strip searches or guidance for conducting strip searches. However, on page 14, there is reference to infrastructure being put in place for searches, as it states:

“Police will utilise an area within the barn … as a searching area. This will be utilised for any person required to be searched who will be moved to this area and acted on accordingly. All searches are to be recorded on the event sheet…”.

539. The Operational Orders for the Drug Dog Operation include the following:

Positive Drug Dog Indications

When an indication is made by the dog, it’s handler will identify the reason for the indication to the suspect and caution them. An arrest team comprising of two (2) police will then take custody of the person of interest and take them to an interview area identified by the Field Commander out of view of the General Public. The suspect will again be cautioned and afforded all LEPRA safeguards and asked if they wish to declare any illegal substances. Police will then exercise their power to search the subject.

540. The ordinary person search power is then set out. There is no reference to strip searches or the additional requirements for strip searches. Attached to the Orders is an Annexure which sets out detailed instructions on the use of drug detection dogs, including how they can be used and recording searches in COPS events. There is no reference to strip searches in the Annexure.

Newcastle City This That 2016

541. In the Operational Orders for this event, there is nothing directed towards training or instructions for strip searches. However, the Orders note that the police deployed to the event included “Specialists – Drug Detection dogs”.

542. Later, the Orders state:

“Patrons attending the event will be received by Police performing a Drug Dog Operation at the entrance to the event, this will include the park area before the main entry. Any person that Police Drug Dog indicates [may be] in possession of a drug or similar substance will be subjected to further inquiries and a search, this process will take place in the field custody area. If any substances are located that person will be processed as per the arrest/custody plan.”

543. This suggests that a drug dog indication would automatically lead to a search. There is no reference to the requisite suspicion under LEPRA.

544. The operational orders summarised above indicate that the NSWPF routinely put the infrastructure in place to conduct searches at these festivals and that there was a lack of training, instruction and guidance on how to conduct strip searches in compliance with LEPRA observable across all events.

Individual training of the relevant searching police officers

545. Lists of training undertaken by the three police officers who interacted with the plaintiff at SITG 2018, set out in their respective “Individual Profiles”, were also before the Court. I was taken to the content of relevant courses by Counsel; however, I note that I have no other evidence to substantiate that the material I was taken to is in fact the content of the courses named on the officers’ profiles.

Senior Constable Danielle George

546. The “Individual Profile” for SC George includes on page 5 a list titled “Qualification”, which sets out the training completed by the officer.

547. Relevantly, on 23 February 2012, SC George undertook a course titled “Powers of Police Workshop (BMEC)”. The workshop included a set of slides titled “Powers of Police Workshop – Search Powers”. Slide 2 sets out the following objectives:

● Identify the ingredients of a lawful search

● Understand the term – reasonable

● Understand the term – suspicion

● Understand the term – belief

548. Slide 4 states as follows:

“In all matters there is a common thread

→ reasonable suspicion

→ reasonable belief”.

549. The subsequent slides set out cases on search and seizure, including George v Rockett, before setting out some of the relevant provisions of LEPRA, including ss 21, 22, 230 and 36. There is no reference to ss 31, 32 and 33 of LEPRA in these slides.

550. However, later in the “Powers of Police Workshop – Field Resource Material”, provisions of LEPRA are extracted in full. This includes ss 31, 32 and 33.

551. SC George’s profile also records that she completed a course titled “Person Search (Practical)” between 2 June 2015 and 30 June 2015.

552. This course refers to an education & training document titled “Weapons & Tactics, Policy & Review – Searching”, published March 2013 and reviewed December 2015. Pages 16-18 make reference to strip searches and ss 31, 32, 33 and 34 of LEPRA. Page 5 includes the following:

“Police must be mindful that while searching is a part of being a police officer, it is also an invasion of privacy. For this reason, searches performed by police must be justified and conducted in a professional manner.”

553. Page 8 sets out the definition of a strip search and extracts s 31 of LEPRA.

554. The next course is the Mandatory Continuing Police Education Scheme document dated January 1999, referred to above. On page 44 of the document there is information relating to strip searches of prisoners. Page 44 includes the following passage, which Mr Sexton SC submits is equally applicable to strip searches pursuant to s 31(b) of LEPRA:

“It is considered that these occasions will be rare and will only occur after reasonable grounds establish the need for such a search. A prisoner will not be strip-searched unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body. A prisoner shall not be strip-searched unless that person knows in substance the reason that it is being imposed.”

555. Page 45 includes the following passage:

“The shedding of clothes involves an invasion of the modesty or dignity of the prisoner concerned. Police shall evaluate all the individual circumstances of the case and consider the known or apparent disposition of the prisoner. The actual strip-search should be away from the public view. Where the circumstances exist, inside an enclosed area and the conduct of the strip-search should be in such a manner so as not to subject the person to any unnecessary embarrassment or degrading treatment. The place of the strip-search should be in a location where such a search can be carried out under close security.

…

It is emphasised that police must display a professional approach at all time and be aware of the fact that they may be made to account for their actions regarding the execution of a strip-search at the scene of an arrest.”

Post-2018

556. On 28 October 2019, SC George completed a course titled “Use Your Powers! (19/20)”. The content of this course was not referred to during the proceedings. It is not known whether it included search powers.

557. Between 24 March 2021 and 16 July 2023, SC George completed a course titled “Music Festivals”.

558. On 10 May 2021, she completed a course titled “Police Powers Search 2020-21”.

559. On 30 March 2023, she undertook “Police Powers – Person Search 2022-2023”.

560. On 17 July 2023, there is another entry titled “Music Festivals”. No evidence has been provided as to the content of these courses.

Senior Constable Todd Petrie

561. The “Individual Profile” for SC Petrie includes on page 3 a list under the heading “Qualification” setting out the various training courses completed.

562. Between 2 April 2015 and 30 June 2015, SC Petrie completed a course titled “Person Search (Practical)”. This is the same course completed by SC George and summarised at [551]-[553] above.

563. This was the only course or workshop completed by SC Petrie relevant to strip searches/searches prior to 2018. The only other entries that appear of any relevance prior to 2018 are “Police Powers I” and “Police Powers II” completed on 23 June 2000. The content of the courses is unknown, including whether they included any reference to search powers. Both courses pre-dated LEPRA.

Post-2018

564. On 23 October 2019, SC Petrie completed a course titled “Use Your Powers! (19/20)”.

565. On 3 April 2021, SC Petrie completed a course titled “Music Festivals”.

566. On 20 April 2021, he completed a course titled “Police Powers Search 2020-1”.

567. The content of these courses was not referred to during the proceedings.

Senior Constable David Jarnet

568. The “Individual Profile” for SC Jarnet also includes on page 2 a list under the heading “Qualification” of training courses completed.

569. On 2 January 2013, SC Jarnet completed a course titled “Police Powers (Online)”. The content of this training course is not in evidence.

570. Between 2 March 2015 and 30 June 2015, SC Jarnet completed a course titled “Person Search (Practical)”. There is also an entry for “Person Search (Practical)” on 1 July 2015. This course is purportedly the same as the one referred to above at [551]-[553].

Post-2018

571. On 16 January 2020, SC Jarnet completed a course titled “Use Your Powers! (19/20)”.

572. On 25 May 2021, SC Jarnet completed a course titled “Music Festivals” and on 28 June 2021, he completed a course titled “Police Powers Search 2020-21”.

573. There is no evidence of the content of these courses.

Evidence relating to senior officers’ awareness of strip searches not being conducted in compliance with LEPRA

Mardi Gras 2013 and LLU Report

574. A central part of the plaintiff’s argument with respect to exemplary damages is that senior officers, from no later than October 2018, were aware (or ought reasonably to have been aware) of unlawful strip searches being undertaken because of complaints, litigation, and the onset of the LECC inquiries. The plaintiff submits that they were aware of the deficiencies in training, and that there were easily available measures that they could have implemented.

575. The 2013 Mardi Gras after party generated a significant number of complaints against police, predominantly in relation to attendees being strip searched (LLU Report p 14). Mr Gary Leeson also pursued a successful civil claim against the NSWPF for an unlawful strip search at the 2013 Mardi Gras.

576. A strategy was developed for the 2014 Mardi Gras Operation which aimed to reduce the number of complaints. Part of this strategy involved the implementation of a triage officer as a mechanism to assess potential strip searches. The role of the triage officer was to assess all circumstances surrounding the cause for a strip search and either permit or refuse the search. Another part of the strategy was the development of a briefing package which included a presentation which clearly articulated officers’ use of powers in relation to drug detection dogs, reasonable suspicion and both general and strip searches (LLU Report p 14).

577. Annexed to the Statement of Agreed Facts was the 22-point strategy for the 2014 Mardi Gras Operation. Under the heading “Drug Dog Operation for Mardi Gras After Party 2014” were ten points. These included the following:

(i) An officer at the rank of inspector and above will attend all Drug Detection Dog Operation briefings and carry a checklist of legislative parameters and requirements that must be understood. (ii) The instruction sheet must include information on reasonable use of force; preconditions of reasonable cause for conducting ordinary and strip searches; understanding of the Drug Detection Dog Standard Operating Procedures; and obligations under Section 6 of the Police Act for the protection of life and property. (iii) Assignment of a senior police officer of or above the rank of sergeant to monitor, advise, supervise and process all strip/ordinary searches at the searching tent areas allocated.

578. These strategies were developed and implemented in 2014 and then continued to be applied to Mardi Gras festivals. Following the implementation of these strategies, complaint statistics specific to Mardi Gras reduced significantly. There was no increase in drug overdoses inside the venue. In 2013, there were 4 strip search complaints specific to Mardi Gras. Following the 2014 Mardi Gras, there were 0 strip search complaints. There was 1 strip search complaint in 2015, and none in 2016-2018.

579. As outlined above, in November 2018, the NSWPF LLU released a report evaluating the way in which strip searches were conducted by police at major events, titled “Lesson Identified – Best Practice Strip Search Guidelines for Pre-Planned Events Involving Drug Detection Dogs”. It is noteworthy that the LLU unit was introduced in mid-2018 apparently in response to concerns about compliance with the statutory requirements in conducting strip searches.

580. The version of the LLU report in evidence was created approximately four months after the plaintiff’s search.

581. The Executive Summary includes the following:

“Although police are extensively trained on police powers using various mediums throughout the course of their career, there is both a lack of compliance and a lack of consistent application when it comes to the exercise of police powers for the purposes of a strip search.”

582. The LLU report found that the lack of compliance with LEPRA stems from two areas:

(a) Confusion surrounding the definition of a strip search, and (b) Neglecting to properly inform the person of interest that they will be undertaking a strip search.

583. The report referred to the obsolete Code of Practice for CRIME (summarised above at [469]-[473]) and found that there was no current document that provided a proper explanation of what amounted to a strip search, leaving the interpretation of the definition of a strip search to the individual officer or operation commander.

584. Under the heading “Lack of documentation”, the LLU report noted that notebook recording is regarded as common practice within the NSWPF, and a failure to document incidents is attributed to “poor practice amongst the individual officers neglecting to do so”.

585. The report then sets out the complaints investigated by Professional Standards. In 2016, there were 79 search complaints, with 16 strip search complaints. In 2017, there were 85 search complaints, with 14 strip search complaints. In 2018, there were 77 search complaints, with 2 strip search complaints. The report observes that the number of complaints proceeding to litigation for unlawful searches were increasing as at the date of the report.

586. The LLU report also referred to the LECC investigation into strip searches, which concerned not only specific incidents but also relevant policies and training with regards to strip searches, precipitated by complaints and anecdotal information from community organisations.

587. Relevantly, on page 12, the LLU report concluded that there was “a plethora of information and educational material available to officers regarding their powers with regards to strip searches”. It is submitted on behalf of the plaintiff that I would conclude that there was in fact a paucity of training and educational materials.

588. The educational materials identified in the LLU report were as follows:

(a) The Police Powers Handbook entry on Personal Searches as at November 2017. The explanatory notes extracted in the LLU report repeat the statutory requirements and make reference to acting professionally and not subjecting the person searched to unnecessary embarrassing or degrading treatment. (b) The ‘Stop, Search and Detain’ section on the intranet. This is summarised at [463]-[464]. This essentially extracts some provisions of LEPRA, with no further guidance. Sections 31 and 32 of LEPRA are not extracted in the version in evidence. (c) Two Six Minute Intensive Training courses, summarised at [465]-[467]. These set out the requirements in the statutory provisions with no further guidance. (d) An article in the Police Monthly in December 2016 titled “Your search powers” and an article in the Policing Issues and Practice Journal in September 2016, regarding amendments to LEPRA in 2016. The LLU report notes that an infographic was developed to accompany this article which is available on the intranet. It is not known if the infographic was deployed in poster format to stations.

589. The LLU report went on to find that:

“Although there is a large amount of educational material available and police powers training is ongoing throughout the career of a police officer, it appears that there is a breakdown in the knowledge transfer process. It is the knowledge transfer process and consolidation of that knowledge that requires consideration by the ETC.”

590. On page 13, there is a section titled “Strip Search Procedures at Festivals, Mardi Gras and Other Large Events”. The report relevantly states:

“At large events, particularly music festivals and Mardi Gras after-party, police employ the use of drug detection dogs.

…

Operational orders for several recent (2018) events were analysed by the Lessons Learned Unit. It was found that at several events, it is common to organise search tents outside the main entrance of venues to provide police with a venue to lawfully search attendees for prohibited drugs and other items before they enter the event.

Some of the operational orders also included their own definitions on what a strip search was… Other operational orders do not provide any information on best practice for strip searches or make any reference to strip searches at all.”

591. On 2 November 2018, a Nemesis message was sent out regarding general and strip searches, to reinforce police responsibilities and powers under LEPRA. A set of notebook stickers were also developed “in response to the broad issues surrounding police powers”. These stickers set out what police officers are required to consider under LEPRA before exercising their search powers. The LLU report also notes that the NSW Police Academy begun a review into all education and training material.

592. Two microlearn videos were developed with respect to strip searches, one on strip searches in a police station and one on strip searches in the field. The LLU report notes these were to be deployed in late December 2018/early January 2019.

593. The LLU also developed a rapid response educational strategy utilising a screen saver to consolidate the educational information available in an effective and timely manner. The report states that the screen saver was deployed for a one-month period from 16 November 2018 and it was envisaged that there would be a series of screen savers with slightly different messaging on strip searches to follow.

594. The LLU found inconsistent definition and application of powers with regards to strip searches at music festivals and identified an opportunity for best practice through the use of a strip search triage officer, as used at the Mardi Gras after party, for all pre-planned events using drug dogs.

595. The following recommendations emerged from the LLU report:

1. Development of a template for operational orders for pre-planned events utilising drug dogs

2. Development, endorsement and implementation of Best Practice Guidelines for Strip Searches at pre-planned events utilising drug dogs

3. Development of educational products in support of the implementation of Best Practice Guidelines for Strip Searches at pre-planned events utilising drug dogs. This could include but is not limited to microlearn video and hot topics banner for education and information, followed up with an article in the Police Monthly

596. It is submitted on behalf of the plaintiff that the LLU itself identified numerous strategies that could and should have been rolled out, and in relation to Mardi Gras, that the NSWPF knew of a process that dramatically reduced the number of strip searches and the number of complaints arising from Mardi Gras 2014, but failed to implement these for all music festivals. To the contrary, the defendant submits that when an organisation introduces something like the LLU unit, whose purpose is to find ways to improve practices, it does not bespeak “abject inadequacy” in current practices.

597. I note that I do not have evidence as to whether the recommendations set out in the LLU report were implemented.

NSW Government response to the Coroner’s Inquest into the deaths of six patrons of NSW music festivals

598. An Inquest into the death of six patrons of NSW music festivals was conducted in 2019 by the State Coroner’s Court of NSW. The NSW Government response to the findings of the Coroner’s Inquest was in evidence in the proceedings.

599. Several recommendations arising from the Inquest were directed towards the NSWPF. One of these recommendations was as follows:

“In order to address the harm potentially caused by the current practice of police strip searching for possession of drugs (including more harmful means of consumption and secretion and adversely affecting the relationships between patrons and police meaning it may be less likely that patrons will seek help from Police), the NSW Police Commissioner issue an operational guideline and/or amend the relevant police handbook such that strip searches should be limited at music festivals to circumstances where:

a. There is a reasonable suspicion that the person has committed or is about to commit an offence of supply a prohibited drug, and

b. There are reasonable grounds to believe that the strip search is necessary to prevent an immediate risk to personal safety or to prevent the immediate loss or destruction of evidence, and

c. The reasons for conducting the search are recorded on Body Worn Video before the search commences.

d. No less invasive alternative is appropriate in the circumstances.”

600. The response of the NSW Government to this recommendation was to note that LECC was investigating the use by police officers of powers to conduct strip searches under LEPRA and that the Government would consider the outcomes of this investigation.

601. Another recommendation directed towards the NSWPF was that “training for attendance at police operations at music festivals be developed and implemented within NSW Police and that such training be a pre-requisite for those police assigned to or wishing to perform police operations at music festivals”. This recommendation was partially supported.

602. The plaintiff relies on the recommendations arising from the Coroner’s Inquest and the NSW Government’s response as further evidence in support of the pleaded assertion that in the period between at least 2016 and 2019, there developed a practice or pattern of conduct whereby strip searches were carried out as a matter of routine and not in circumstances lawfully justified by LEPRA.

Post-2018 improvements

603. I pause to note that the focus in this case is not improvements to education and training that were introduced after the plaintiff’s search. I have limited evidence of the extent to which the recommendations in the LLU report were implemented. However, the evidence adduced and relied upon by both parties reveals changes to education and training and the operational orders for festivals post-2018. Any improvements are relevant to my determination of the plaintiff’s claim for exemplary damages to some extent, noting that the purpose of exemplary damages is to punish and deter the defendant. I will address this in due course. The plaintiff also relies on some of the training measures introduced post-2018 as evidence of steps that could have been taken prior to the plaintiff’s search.

Music Festival Fundamentals

604. Both parties took the Court to the document titled “Music Festival Fundamentals”, which was introduced following the LLU Report in late 2019 as an online education package.

605. The Music Festival Fundamentals includes a section titled “Search Legislation”. A sub-section is titled “Strip Search Legislation”, which makes reference to provisions of LEPRA, including ss 31, 32 and 33. The full text of the provisions is not extracted.

606. There is then an interactive video exercise titled “Music Festival Drug Detection Video”. This asks the user questions such as, “Does an indication by a drug dog on its own amount to reasonable suspicion to search?”. The interactive exercise then displays the correct answer, with an explanation.

607. The module covers what behaviours may be considered by officers in forming the requisite reasonable suspicion. The module proceeds through an example general search, with reference to the relevant provisions of LEPRA, before turning to strip searches.

608. In the section on strip searches, the education package states:

“Enquire into the reason for the strip search, and ensure the observations to support the reasonable grounds for that search is present.

Ensure the reasonable grounds that the seriousness and urgency of the circumstances making a strip searching necessary are recorded.”

609. The plaintiff submits that this slide is still deficient because it fails to explain what may constitute “serious and urgent” circumstances.

610. There is then an interactive exercise on strip searches, which includes references to the updated Person Search Manual and provisions of LEPRA. At the end of the module are questions with feedback depending on the response entered.

611. The module ends with a list of resources, including the following: “Seriousness & Urgency Document”; “Person Search Manual”; and “Strip Search Briefing Document”.

612. It is submitted on behalf of the plaintiff that the Music Festival Fundamentals package was an easily available strategy that could have been rolled out, and should have been rolled out, well before 2018.

SITG 2019

613. The Operational Orders for SITG 2019 were in evidence in the proceedings. SITG 2019 took place one year after SITG 2018, the festival at which the plaintiff was strip searched.

614. Pages 26-28 of the Operational Orders contain specific instructions with respect to strip searches that were absent from the Operational Orders for SITG 2018. The Orders note that an inspector will “verify all relevant COPS events in relation to searches”. Section 31 of LEPRA is extracted and reference is made to the safeguards in ss 32 and 33 of LEPRA. There are also instructions with respect to how strip searches should be captured on BWV to best protect the privacy of the person being searched.

615. Separate Operational Orders were prepared for the Drug Dog Operation for SITG 2019. These Orders emphasise on page 5 that legislative requirements for searches must be strictly adhered to and justification for the search must not only be achieved but recorded. The Orders state, “Prior to an individual being subjected to a strip search, the Operation Commander is to be notified”. Page 7 of the Orders states, “Please refer to attached legislative guidelines with respect to searches. This will be promoted during each briefing and throughout the course of the deployment. Also refer to Commanders joining instructions and operational orders”.

616. Attached to the Operational Orders for the Drug Dog Operation was an Aide-Memoire in relation to search powers and safeguards. This Aide-Memoire emphasises that an indication by a drug detection dog is not sufficient to empower police to conduct a search. Relevant provisions of LEPRA are extracted in the Aide-Memoire, including s 31. Under the text of s 31 is the following:

“It is considered that the occasions may be rare and will only occur after reasonable grounds establish the need for such a search. In places other than police stations or other places of detention a person will not be strip-searched unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body. A person shall not be strip-searched unless that person knows in substance the reason that it is being imposed (complying with Part 15).

The person should be taken to the nearest appropriate place for the search to be conducted. This does not necessarily have to be a police station, although in city areas a police station may be nearby and provide a private area to conduct the search. When conducting a strip-search police must consider the preservation of the [person’s] privacy and dignity, as detailed in section 32 in conjunction with section 33 which deals with the rules on conducting a strip-search.

The shedding of clothes involves an invasion of the modesty or dignity of the prisoner concerned. Police shall evaluate all the individual circumstances of the case and consider the known or apparent disposition of the person. The actual strip-search should be away from the public view. Where the circumstances exist, inside an enclosed area and the conduct of the strip search should be in such a manner so as not to subject the person to any unnecessary embarrassment or degrading treatment. The place of the strip search can be carried out under close security.

A strip search must not be conducted on a child under the age of 10 years (section 34). It is emphasised that police must display a professional approach at all times and be aware of the fact that they may be made to account for their actions regarding the execution of a strip search at the scene of an arrest.

Police can seize only what is upon the person. Police shall not conduct a search of the various cavities of the body.”

617. Section 32 of LEPRA is then extracted. The Aide-Memoire goes on to address how searches should be recorded in COPS and how BWV can be used during a strip search.

618. The addition of the Aide-Memoire is a notable improvement to the Operational Orders from SITG 2018 to SITG 2019. There was evidently a much greater emphasis in the Operational Orders for SITG 2019 on instructing and assisting police to comply with the provisions of LEPRA when conducting strip searches.

Harbourlife 2019

619. Harbourlife 2019 took place on 16 November 2019. The Operational Orders for this event were in evidence. As observed above, the Operational Orders for Harbourlife 2018 were some of the only orders that referred to ss 31, 32 and 33 of LEPRA (albeit the provisions were not extracted in full and no further instructions or guidance was provided). The Orders for Harbourlife 2019 are notably different to the Orders for the 2018 iteration of the festival.

620. On page 13 of the Orders is a section on “searches”, with a subsection specifically on “strip searching”. The Orders state, “The searching officer must inform the Search Coordinator prior to strip searching a person. The Search Coordinator will be located within the designated search area”. This indicates a higher level of supervision than what is contained in the majority of the pre-2019 operational orders.

621. The Orders then set out s 31 in full. Immediately following the text of s 31 is the following, which appears to be taken from the Person Search Manual (summarised at [637]-[645]):

“What constitutes ‘serious and urgent’ for the purpose of s.31***(b) of LEPRA?***

You must always be able to justify your decision to strip search a person.

If you strip search in the field, you must hold reasonable grounds to suspect that the seriousness and urgency of the circumstances make the strip search necessary.

● If you are not conveying the person to a police station, do you have reasonable grounds to suspect that the consequences of not strip searching the person would be serious? For example:

→ Do you have reasonable grounds to suspect that the person has an item on them, unable to be located through a pat-down search, which may cause a serious risk to their welfare or the welfare of someone else (eg: police, public) in the immediate future?

→ Do you have reasonable grounds to suspect that the person may have evidence of a serious offence on them, unable to be located through a pat-down search, which they may dispose of once they are no longer in police presence?”

622. The Orders then direct the searching officer to consider whether the strip search can wait until at the police station, if an arrested person is being conveyed back to the station. Sections 32 and 33 of LEPRA are then extracted in full.

623. On page 16, the Orders state, “DO NOT ASK SOMEONE TO REMOVE THEIR TAMPON”. There are then instructions on strip searching children or someone with impaired intellectual functioning and the recording of searches. The Orders note that the COPS event must be verified by the searching officer’s supervisor on that shift.

624. These Orders contain five pages of instructions on the legislative requirements and safeguards for strip searches. This is remarkably different to the operational orders for festivals pre-2019 which have been summarised above.

Field Day 2020

625. Field Day 2020 took place on 1 January 2020. The “Drug Detection Briefing” for this festival was in evidence. The briefing for this festival is both an example of post-2018 improvements and an example of training and educational measures that easily could have been implemented pre-2018.

626. On a slide titled “Drug Detection Operation”, it is noted that six drug detection dogs would be in attendance. It then states, “Be mindful of searching legislation. (S21 Lepra power to search, S32 Privacy of Search & S33 Rules for Strip Search) Handout given upon entry”.

627. A few slides later, the briefing includes the following (emphasis added):

“Presentations and Medical

There have been 35 reported overdoses in the past nine years.

1368 people presented to medical compounds

42 people were transported to hospital

You can take this into account when assessing whether the seriousness and urgency of the circumstances make a strip search necessary.”

628. Apart from this, the briefing does not contain any instructions or guidance on what might constitute serious and urgent circumstances.

629. Later, there is a slide that states, “Any detection made by a drug detection dog, the handler will make contact with the person and caution them. You (operational police) are responsible for deciding whether to search”.

630. Immediately following this slide is a slide that contains the following directives:

**“**Directives – Reasonable suspicion for a search

A drug dog indication alone is NOT enough to form reasonable suspicion.

Examples include;

Deliberately changing path to avoid dogs/police.

Hiding in the middle of large groups.

Groups forming a circle around a person to provide cover whilst that person secretes the drugs on/in their person.

Fiddling or adjusting their clothing upon seeing police.

Constantly looking around

Nervousness trying to avoid making eye contact with Police

Females darting straight to the toilets upon entry. (inside venue)

Over hearing conversation

An exchange

Suddenly talking on the phone when Police are approaching”.

631. The subsequent slide states, “You MUST apply the LEPRA safeguards (section 202) when you search a person”.

632. The next two slides set out instructions on person searches (not involving a strip search).

633. There is then a slide on strip searching as follows:

“Directives – Strip Searching

Police must always be able to justify each decision to strip search. Police can only conduct a strip search in the field if they suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary at that place.

Prior to a strip search being conducted, the officers are to consult with either Sergeant Hill or Sergeant KRAWCZYK to ensure that sufficient grounds exist to conduct a strip search.”

634. The next slide sets out what constitutes a strip search. The following slide then states again, “You can only strip search a person if you suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary”.

635. There are a further five slides on strip searching, covering issues such as not filming strip searches, privacy, safeguards and strip searching children. There is then a slide directing that all searches must be contemporaneously recorded regardless of whether a drug was located.

636. The briefing for this festival was unequivocally vastly different to the operational orders and instructions summarised above in respect of festivals pre-2019.

Person Search Manual

637. As noted above, it is an agreed fact that in August 2019, the NSWPF implemented the NSWPF Person Search Manual 2019.

638. On page 4, the Manual sets out that whenever police exercise a search power they must:

(a) Hold the state of mind required by LEPRA (b) Comply with the rules for searching in ss 32 and 33 (c) Comply with the safeguard requirements in Pt 15, and (d) Make a contemporaneous record of the search.

639. The Manual then sets out what “reasonable suspicion” is, based on guidance provided by the courts.

640. Over the page, there is reference to ss 32 and 33 of LEPRA.

641. Page 6 provides a definition of what amounts to a strip search. On page 7, under the heading “When can a person be strip searched?”, the Manual sets out the requirements in s 31 of LEPRA.

642. The following pages then answer basic questions about strip searches, when they can be carried out and how they should be carried out. Pages 11 and 12 set out the privacy and dignity rules for all person searches and the additional rules for strip searches.

643. Two further versions of the Person Search Manual were in evidence, dated September 2021 and January 2023 respectively, which reveal further improvements.

644. In the most recent version in evidence, on page 8 is a section titled “What constitutes ‘serious and urgent’ for the purpose of strip searching in the field?”. Below that appears the following:

9.11 If the person will not be conveyed to a police station, do police have reasonable grounds to suspect that the consequences of not strip searching the person would be serious? For example:

→ Do police have reasonable grounds to suspect that the person has an item on them, unable to be located through a pat-down search or metal detector, which may cause a serious risk to their welfare or the welfare of someone else (eg: police, public) in the immediate future?

→ Do police have reasonable grounds to suspect that the person may have evidence of a serious offence on them, unable to be located through a pat- down search or metal detector, which they may dispose of once they are no longer in police presence?

9.12 If an arrested person is to be conveyed to a police station, can the strip search wait until the person is at the police station? For example:

→ Do police have reasonable grounds to suspect that the person has an item on them, unable to be located through a pat-down search or metal detector, which may cause a serious risk to their welfare or the welfare of someone else (eg: police, public) in the immediate future?

→ Do police have reasonable grounds to suspect that the person may have evidence of a serious offence on them, unable to be located through a pat- down search or metal detector, which they may dispose of once they are no longer in police presence?

→ Is there any other reason that the person must be strip searched now?

9.13. A suspicion that a person has ingested or internally secreted a drug does not, on its own, justify a strip search (see paragraphs 10.22 to 10.26).

645. The Person Search Manual states that police can ask a person to do things to allow for visual inspection such as lift testicles, part buttock cheeks, spread fingers and toes, lift breasts, turn their body to face a different direction, open their mouth and shake their hair, and squat.

Summary of post-2018 improvements

646. As can be seen from the above summary, the NSWPF introduced several improvements to training, education and supervision post-2018. These included the Music Festival Fundamentals, an online education package purportedly provided to officers prior to festivals, and the Person Search Manual, which includes in the most recent version in evidence a clear outline of the statutory preconditions and safeguards attaching to strip searches, and some guidance on what may constitute serious and urgent circumstances and how strip searches should be conducted. These materials make reference to ss 31, 32 and 33 of LEPRA, provide guidance as to what may amount to the requisite state of suspicion, and delineate the extent of police powers to strip search, including setting out what officers are prohibited from doing.

647. The Operational Orders for SITG 2019 and Harbourlife 2019 and the briefing for Field Day 2020 also illustrate post-2018 improvements, as they provide much more detailed directives and instructions in respect of strip searches than the operational orders for earlier festivals that were in evidence (many of which were completely silent on strip searching). The Field Day 2020 briefing illustrates heightened supervision, as officers were directed to consult with one of two Sergeants prior to conducting a strip search. Similarly, the Operational Orders for SITG 2019 required an Operation Commander to be notified prior to a strip search being conducted.

648. However, the inverse to these post-2018 improvements is that these measures were available for the NSWPF to implement pre-2018. There is no evidence that the improvements were too difficult or costly to implement. As set out above, the NSWPF was aware of complaints in respect of unlawful strip searches at festivals and large events as early as Mardi Gras 2013.

Is the plaintiff entitled to exemplary damages?

649. The defendant accepts, as a matter of general principle, that exemplary damages may be available in cases of trespass to the person (assault, battery, and false imprisonment) including in actions against the police. Furthermore, the defendant does not contend that the Court cannot or should not make findings relevant to the plaintiff’s pleadings at 68A-68D of the SFASoC. Instead, the defendant argues that the Court cannot then turn that “into a dollar figure” at this stage because these are representative proceedings. This latter contention is what I have identified as constituting question 3.

650. The onus is on the plaintiff to establish that she is entitled to an award of exemplary damages.

651. Exemplary damages may be awarded against the State for the conduct of officers for whom the state is responsible: State of New South Wales v Landini [2010] NSWCA 157 at [114] citing Ibbett (**HCA). In Australia, the availability of exemplary damages is not restricted to any particular categories of conduct: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 136; [1966] HCA 40 (“Uren”); Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37; Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221; [1968] ALR 3; Lamb v Cotogno at 8.

652. Unlike compensatory damages, exemplary damages are intended to punish the defendant and deter the defendant and others from behaving in the same or a similar way in the future: Fede v Gray by his tutor New South Wales Trustee and Guardian (2018) 98 NSWLR 1149; [2018] NSWCA 316 at [152]. The objectives of an award of exemplary damages encompass condemnation and admonition, marking the courts’ strong disapproval of the conduct. The policy basis for exemplary damages extends to disapprobation of “those officials of the State who are responsible for the overseeing of the police force”: Adams v Kennedy & Ors (2000) 49 NSWLR 78; [2000] NSWCA 152 at [36].

653. The conceptual distinction between exemplary damages and aggravated damages is that aggravated damages are assessed from the plaintiff’s perspective, whereas an assessment of exemplary damages focuses upon the defendant’s conduct. Exemplary damages are awarded only in cases of conscious wrongdoing in contumelious disregard of another’s rights: see Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77; [1920] HCA 75; Uren at 129 (Taylor J) and at 154 (Windeyer J); XL Petroleum *(*NSW) Pty Ltd v Caltex Oil *(*Australia) Pty Ltd at 471; Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 (“Gray v Motor Accident Commission”) at [14].

| Year | Strip searches | Strip searches where a drug was found | Strip searches where a firearm or firearm accessory was found | Strip searches where a knife or sharp cutting instrument was found | Strip searches where other prohibited articles were found | | 2014 | 2,952 | 744 | 3 | 66 | 5 | | 2015 | 4,832 | 1,103 | 9 | 115 | 18 | | 2016 | 4,685 | 1,136 | 6 | 102 | 9 | | 2017 | 4,792 | 1,335 | 2 | 99 | 19 | | 2018 | 5,526 | 1,553 | 1 | 93 | 29 |

670. The statistics reveal that the increase in the number of strip searches in the field between 2014 and 2015 was over 60% (from 2,952 to 4,832). There was also an increase of more than 80% from 2014 to 2018 (from 2,952 to 5,526). The majority of all strip searches in the field in that period were of attendees at music festivals.

671. The NSWPF introduced the LLU as part of its Leadership and Capability Command in mid-2018. It is reasonable to infer that the purpose of the LLU, in general terms, was to consider what changes to practice and training may be made in the face of complaints and issues being raised about strip searches.

672. It is an agreed fact that while 143 strip searches were conducted at SITG 2018, this number dropped to 16 strip searches at SITG 2019. This was a reduction of nearly 90%. This is notable in light of the significant changes made to the Operational Orders for SITG 2019, summarised at [613]-[618], and the other measures introduced post-2018, such as the Music Festival Fundamentals.

673. The following acknowledgements in the LLU Report are relevant. Firstly, in October 2018 LECC launched an investigation into the practices of the NSWPF concerning the conduct of strip searches in response to specific complaints and advocacy from community organisations.

674. Secondly, the 2013 Mardi Gras after party generated a significant number of complaints against police, with most relating to attendees being strip-searched. Indeed, as a result of these complaints the NSWPF developed the 22-point plan to improve policing strategies and in particular, the exercise of powers relating to strip searches at future Mardi Gras events. Importantly, the plan included assignment of a senior police officer of or above the rank of Sergeant to monitor, advise, supervise, and process all strip/ordinary searches at the searching tent areas allocated. It must have been apparent to senior officers from as early as 2013 that there were issues arising from the conduct of strip searches by the NSWPF.

675. Thirdly, the LLU Report contains a table identifying a number of civil cases based on allegedly unlawful strip searches launched against the NSWPF between 2011 and 2018. There was an increase from two cases in 2015 to seven cases in 2016 and 2017. Thirty-two complaints in relation to strip searches were received by Professional Standards between 2016 and 2018. Material produced under subpoena contains eight complaints received by the NSWPF’s Customer Assistance Unit between 2016 and 2018 regarding strip searches.

676. In addition, although of less weight, a number of media articles featuring complaints from the public and discourse surrounding NSWPF strip search practices were published between 2001-2018. These articles are not relied upon for hearsay purpose but rather as evidence of public comment about strip searches reported in the media that it might be inferred the NSWPF was aware of.

To what extent do the improvements in training, education and supervision post-2018 mitigate the punitive and deterrent effect of exemplary damages?

681. The improvements made by the NSWPF to training and education post-2018 are set out at [603]-[648]. In summary they include the introduction of the “Music Festival Fundamentals” online education package, the Person Search Manual, and clearer and more detailed instructions on the statutory requirements and safeguards in operational orders for festivals such as SITG 2019 and Field Day 2020. Officers can also no longer self-verify COPS event entries that relate to a person search and monthly audits of COPS events entries containing a strip search are required.

682. Although there is limited or no evidence as to how and to what extent these improvements and other recommendations set out in the LLU Report have been implemented, I am satisfied that the defendant has (subsequent to 2018) taken more seriously the need to adequately train, educate and supervise police officers in respect of the exercise of power in conducting strip searches. Those improvements mitigate the punitive and deterrent effect of exemplary damages in more than a “small way”.

683. That said, the failures of senior police to adequately train, educate, instruct, and monitor police officers in the exercise of their powers to conduct strip searches at music festivals, in the period between at least 2016 and 2018, was egregious. That strip searches involve a significant intrusion on the privacy and bodily integrity of the individual is universally understood including by senior members of the NSWPF.

684. Music festivals held in New South Wales between 2016 and 2018 were policed by substantial detachments from the NSWPF for the purpose of, amongst other things, detecting prohibited substances in the possession of attendees. Senior officers were aware that strip searches were to be conducted for the purpose of detecting prohibited substances in the possession of attendees. The infrastructure to support such operations included, but were not limited to, the deployment of the DDD unit and construction of makeshift search areas.

685. The evidence establishes that the Operational Orders provided at music festivals failed to clearly instruct police about the LEPRA requirements. These failures must be assessed in the context of senior police officers being aware of complaints about the way in which police conducted strip searches. In the case of the complaints made about strip searches at Mardi Gras, senior police sought to address those complaints by formulating the 22-point plan (a plan that did not necessarily reflect best practice but demonstrated some attempt to improve the procedures adopted in the conduct of strip searches). The question remains as to why these limited improvements were not deployed more widely to music festivals in general where strip searches were being conducted.

686. Having considered the evidence closely, and notwithstanding the improvements that have been implemented post-2018, I am satisfied that the plaintiff has established her entitlement to exemplary damages.

Can the Court quantify and award exemplary damages at this stage having regard to the nature of the proceedings as representative proceedings?

687. Having determined that the plaintiff is entitled to exemplary damages, and that the objectives of punishment and deterrence are mitigated by virtue of the improvements that the NSWPF has implemented, the question remains as to whether the Court should quantify and make an award of exemplary damages at this stage of the proceedings.

688. The defendant contends that whilst I can determine the plaintiff’s entitlement to exemplary damages, the quantum of exemplary damages cannot be assessed at this stage of the proceedings. The defendant relies on Walumba Lumba *(*Congo) v Secretary of State for the Home Department [2011] UKSC 12 (“Walumba Lumba”). In that case, the Supreme Court of the United Kingdom held as follows at [167]:

“The Court of Appeal identified at para 123 of their judgment a further point which militated against awards of exemplary damages to the appellants. Where there is more than one victim of a tortfeasor’s conduct, one award of damages should be made which should be shared between the victims, rather than separate awards of exemplary damages for each individual: see Riches v News Group Newspapers Ltd [1986] QB 256. This is because the purpose of the award is to punish conduct rather than compensate the claimants. In Riches, the victims of the tort were a small class who were all before the court. But where (as in the present case) there is potentially a large number of claimants and they are not all before the court, it is not appropriate to make an award of exemplary damages: see AB v South West Water Services Ltd [1993] QB 507, 527B-D per Stuart-Smith LJ and p 531D-E per Sir Thomas Bingham MR. Unless all the claims are quantified by the court at the same time, how is the court to fix and apportion that punitive element of the damages? If the assessments are made separately at different times for different claimants, how is the court to know that the overall punishment is appropriate? The Court of Appeal were right to regard this a further reason why it was not appropriate to award exemplary damages in the present case.”

689. Mr Sexton SC points out that the plaintiff’s claim of $50,000 in exemplary damages, if applied across the class, would add up to $150 million in exemplary damages. The defendant submits that there will come a point where the State has been “adequately deterred and punished” and no further exemplary damages are warranted.

690. The plaintiff submits that Walumba Lumba is not binding on this Court, and I would treat the decision with caution because the law on exemplary damages in the UK has significantly departed from that in Australia, at least since Uren. The plaintiff also submits that Walumba Lumba can be distinguished from the plaintiff’s claim. In Walumba Lumba, the question of entitlement to exemplary damages arose from a “single act”, namely, the invariable application of a single policy to all persons within the class. In the present case, the plaintiff makes a personal claim that “relies to some extent on a common factual sub-stratum”. However, the ultimate question in the present matter is the relevance of that set of common circumstances (inappropriate training and direction) to the plaintiff’s individual case. The plaintiff submits that this depends upon the extent to which it can be inferred that the absence of proper training and supervision had a causative role in the circumstances in which intentional torts were committed on her. Thus, the plaintiff submits that Walumba Lumba has no application to the present matter.

691. The plaintiff contends that there is no reason to deprive the plaintiff of an award of exemplary damages to the extent it is referable to a systemic issue that might be shared by other claims. The plaintiff submits that an individual award of exemplary damages depends on the facts of a particular case and the relationship between the circumstances relied upon (including shared circumstances) and the precise nature of the person’s case.

692. The plaintiff relies on Nixon v Philip Morris *(*Aust) Ltd (1999) 95 FCR 453; [1999] FCA 1107. This case concerned the analogous federal class actions regime. The decision related to an application to strike out the applicant’s statement of claim, so no assessment of damages was undertaken. However, Wilcox J said as follows at [119]:

“During discussion on 17 June, the senior counsel who then appeared for Philip Morris contended there was an inherent difficulty in awarding damages in a representative proceeding: until compensatory damages had been assessed in respect of all claimants, the Court would not be able to determine whether or not it was appropriate to add something to any claim by way of exemplary damages. Counsel had in mind the principle that, in determining whether it is appropriate to award exemplary damages – and, if so, how much – a court must consider the effect on the defendant of liability for compensatory damages. However, counsel who appeared on 27 July did not pursue this argument. They accepted that each group member’s claim was distinct; if exemplary damages are available, the principle to which I have referred must be applied in relation to each group member. I think this concession is correct. A defendant cannot answer X’s claim for exemplary damages by showing it has incurred a heavy damages liability to Y, in respect of the same or similar conduct.”

693. The respondent successfully appealed to the Full Court on other grounds: see Philip Morris *(*Australia) Ltd v Nixon (2000) 170 ALR 487; [2000] FCA 229. On appeal, Sackville J said as follows with respect to the issue of exemplary damages:

[185] … I think it better to defer dealing with this issue until a properly pleaded representative claim is made in which exemplary damages are sought in the accrued jurisdiction of the Court. A fortiori, if the proceedings are not to continue as representative proceedings, as Spender and Hill JJ propose, it is inappropriate to deal with the question of exemplary damages until it arises in a properly pleaded representative claim.

[186] … This should not be taken, however, as necessarily implying any disagreement with the reasoning of the primary Judge on this issue.”

694. I note that the Federal Court did not finally deal with the issue of whether exemplary damages should be awarded in representative proceedings until compensatory damages have been assessed in respect of all claimants. I have not been able to find a case that squarely decides this point. I have also not been able to find an example of an Australian Court awarding exemplary damages in representative proceedings. There is some force in the defendant’s contention that the Court should not make an award of exemplary damages at this stage.

695. Although the plaintiff is entitled to exemplary damages, I have concluded that it would not be appropriate to quantify or make an award of exemplary damages at this stage for the following reasons.

696. Firstly, while I have some sympathy for the plaintiff’s position, I do not accept the argument that it is “nonsensical” that an award of exemplary damages cannot be made until all group members’ claims are considered. The plaintiff’s submission that an individual award of exemplary damages depends on the facts of the particular case and the relationship between the circumstances relied upon (including shared circumstances) and the precise nature of the person’s case, in my view, ignores the fundamental nature of exemplary damages which are punitive and deterrent rather than compensatory.

697. Secondly, I have no evidence about the number of members in the class or the details of their claims. Having regard to the submission made by Mr Sexton SC (that if I award $50,000 in exemplary damages as contended for by the plaintiff, the State would be liable for $150,000,000 in total for exemplary damages alone) I deduce that there are about 3,000 registered members in the class. I note that at the time of Garling J’s judgment on 19 November 2024, approximately 2,316 individuals had registered as members of the class: Meredith *(*No.3) at [10].

698. If I were to make an award of exemplary damages based upon the systemic (and common) failure by senior officers to adequately train, educate, and monitor police officers in the exercise of their powers to conduct strip searches, it seems to me that all successful claimants would potentially be entitled to the same or similar quantum of exemplary damages. The unlawfulness of each strip search and the extent of non-compliance with statutory provisions would very likely flow from the common systemic failure. In those circumstances, there would come a point at which the punitive and deterrent effect of exemplary damages would expire.

699. Thirdly, the plaintiff has been unable to point to any authority (and I have not been able to find any authority) that could persuade me that exemplary damages can be quantified and awarded to a lead plaintiff in representative proceedings.

700. The following table sets out the award of damages to the plaintiff:

| Head of Damages | Quantum | | Battery | $3,000 | | Assault | $25,000 | | False Imprisonment | $15,000 | | Aggravated damages (including for the conduct of the proceedings) | $50,000 | | Exemplary damages | | | Total | $93,000 |

Orders

701. For the reasons outlined above, I make the following orders:

702. Judgment for the plaintiff in the sum of $93,000 plus pre-judgment interest.

703. Direct the parties to confer and agree as to the quantum of interest payable.

704. Defer for later assessment the quantum of exemplary damages for the plaintiff.

705. The defendant pay the plaintiff’s costs on the ordinary basis unless a party shows an entitlement to some other costs order.

Common Questions

702. I turn now to answer the common questions.

703. In these questions:

(a) “31**(**b) strip search” means a strip search of the kind described in s 31(b) of LEPRA. (b) “LEPRA” means the Law Enforcement *(*Powers and Responsibilities) Act 2002 (NSW). (c) “Ordinary search” means a search of the kind described in s 21 of LEPRA.

Interpretation of LEPRA

1. In order to form the necessary state of mind to conduct a 31(b) strip search, does a police officer need to consider s 21 first before considering the criteria in s 31(b) of LEPRA?

Answer: Yes

2. Are the necessary criteria in s 31(b) of LEPRA for carrying out a 31(b) strip search the following:

(a) The police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search; and (b) The police officer suspects on reasonable grounds that the seriousness of the circumstances make the strip search necessary; and (c) The police officer suspects on reasonable grounds that the urgency of the circumstances make the strip search necessary.

Answer: Yes

3. In determining whether a “strip search is necessary for the purposes of the search”, does a police officer need to conclude that an ordinary search is insufficient in order to form the reasonable suspicion required for the exercise of the power to conduct the 31(b) strip search?

Answer: Yes

4. Assuming reasonable grounds for suspicion of the existence of a circumstance in LEPRA s 21(1)(d), is an officer’s state of mind that any contravention of the Drug Misuse and Trafficking Act 1985 is ‘serious’ capable of also providing reasonable grounds for suspicion of the state/s of mind required to perform a 31(b) strip search?

Answer: No

5. Does failure by a Police Officer to have the required state/s of mind identified in s 31(b) of LEPRA render a 31(b) strip search purportedly undertaken pursuant to that provision unlawful?

Answer: Yes

6. Does non‐compliance by a Police Officer with a provision contained in s 32 of LEPRA in conducting a 31(b) strip search make that search unlawful?

Answer: Yes, unless it is established that it is not reasonably practicable to comply in the circumstances.

7. Does non‐compliance by a Police Officer with a provision contained in s 33 of LEPRA in conducting a 31(b) strip search make that search unlawful?

Answer: Yes, unless it is established that it is not reasonably practicable to comply in the circumstances.

Directions concerning a person’s body

8. Does “genital area” in the meaning of s 32(6) of LEPRA include a person’s anal area?

Answer: Yes

9. To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct that a Group Member bend over or otherwise move his or her body to facilitate visual inspection of the genital area during the course of a 31(b) strip search?

Answer: LEPRA does not empower a police officer to direct (as opposed to request) a group member to bend over or otherwise move his or her body to facilitate visual inspection of the genital area during a nonconsensual strip search.

10. Did LEPRA otherwise empower a police officer to direct or force a Group Member to bend over or otherwise move his or her body to facilitate visual inspection of the genital area in the course of a 31(b) strip search, and in what circumstances?

Answer: There is no implied power to direct a group member to bend over or otherwise move his or her body to facilitate visual inspection of the genital area in the course of a nonconsensual strip search.

11. To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct a Group Member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate visual inspection during the course of a 31(b) strip search?

Answer: Sections 31, 32 and 33 do not empower a police officer to direct (as opposed to request) a group member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate a visual inspection during a nonconsensual strip search.

12. Did LEPRA otherwise empower a police officer to direct or force a Group Member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate visual inspection during the course of a 31(b) strip search, and in what circumstances?

Answer: LEPRA does not otherwise empower a police officer to direct a group member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate visual inspection during a nonconsensual strip search.

13. To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct that a Group Member interact with a tampon or other item inserted into a body cavity during the course of a 31(b) strip search?

Answer: Sections 31, 32 and 33 of LEPRA do not empower a police officer to direct that a group member interact with a tampon or other item inserted into a body cavity during the course of a nonconsensual strip search.

14. Does LEPRA otherwise empower a police officer to direct or force a Group Member to interact with a tampon or other item inserted into a body cavity during the course of a 31(b) strip search, and in what circumstances?

Answer: LEPRA does not otherwise empower a police officer to direct a group member to interact with a tampon or other item inserted into a body cavity during a nonconsensual strip search.

There is no implied power under LEPRA to force a group member to interact with their body parts in any of the ways suggested or to interact with a tampon or other item inserted into a body cavity as a strip search must not involve a search of a person’s body cavities or an examination of the body by touch: s 33(4) of LEPRA.

Damages

15. Could non‐compliance by a Police Officer with a safeguard contained in ss 32 and/or 33 of LEPRA be an aggravating factor in the Court’s assessment of damages of false imprisonment / assault / battery of a person the subject of an unlawful strip search?

Answer: Yes

Conduct of the State relevant to exemplary damages

16. Were the matters pleaded at paragraph 68A.1 to 68A.3 the case as at July 2018?

Answer: Yes

17. If so, was the State aware of those matters as at July 2018?

Answer: Yes

18. In the period between 2016 and July 2018, was there a practice or pattern of conduct by Police Officers of carrying out strip searches of attendees at music festivals as a matter of routine?

Answer: Yes

19. If so, was the State aware or ought reasonably to have been aware of such a practice or pattern of conduct as at July 2018?

Answer: Yes

20. Was the State aware that the performance of strip searches was the subject of training given to and supervision of police officers as at July 2018?

Answer: Yes

21. Did the State exercise reasonable care and skill to ensure the training of the training and supervision of police officers in respect of the correct observance of ss 21 and 31-33 of LEPRA at music festivals was adequate as at July 2018?

Answer: Not in respect of the correct observance of ss 31-33 of LEPRA.

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