R v Nguyen

Texts Cited: International Covenant on Civil and Political Rights

Category: Procedural rulings

Parties: Rex (Crown)
Anh Tai Nguyen (Accused)

Representation: Counsel:
Ms L Hill (Solicitor Advocate) (Crown)
Mr B Eurell (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)

File Number(s): 2023/274193

JUDGMENT

Introduction

1. The accused, Anh Tai Nguyen, is charged by an amended indictment dated 20 June 2025, that on 28 August 2023 he supplied:

2. Methylamphetamine in the amount of 57.09 grams (count 1); and

3. Heroin in the amount of 3.2 grams (count 2).

4. Upon a police search, those drugs had been found in a car driven by the accused at the time (“the Honda”).

5. Police also seized and examined a phone found in the accused’s possession, which led to further counts of supply:

6. That on 7 August 2023, the accused supplied 28 grams of heroin (count 3);

7. That between 12 August 2023 and 28 August 2023, the accused supplied 22.75 grams of methylamphetamine (count 4);

8. That between 14 August 2023 and 23 August 2023, the accused supplied 185.5 grams of methylamphetamine (count 5); and

9. That on 28 August 2023, the accused supplied 28 grams of methylamphetamine (count 6).

10. On 30 October 2024, the accused was committed from the Local Court to stand trial on counts 1 and 2. On 20 June 2025, the Crown gave formal notice of its intention to amend the indictment to include ex officio counts 3 to 6.

11. By notice of motion filed on 9 July 2025, the accused made an application pursuant to s 138(1) of the Evidence Act 1995 (NSW) (“Evidence Act”) for evidence obtained as a consequence of a police search on 28 August 2023 to be excluded, based on breaches of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).

12. The orders sought in the motion are opposed by the Crown.

13. The Crown submits that the searches conducted on 28 August 2023 were lawful. Alternatively, the Crown submits that if the Court finds the evidence was improperly or illegally obtained, the Court retains a discretion to admit the evidence; and the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, primarily because the evidence is extremely probative and the alleged offences are serious.

Findings of Fact – Matters Going to the Integrity of the Evidence

8. On the voir dire, the Crown relied on the evidence of Senior Constable Donaldson, primarily set out in two statements dated 21 July 2025 and 23 July 2025, the evidence of Sergeant Azzi, primarily set out in a statement dated 21 July 2025, and the Crown Case Statement.

9. Both officers were cross-examined. It has been necessary to make findings of fact on contested evidence.

10. The quality of the officers’ evidence has been undermined by three matters:

11. Officer Donaldson provided Officer Azzi with a copy of the COPS event, the police facts and his own statement for Officer Azzi to prepare his statement. Whilst it is not unusual for police to refer to the same contemporaneous records, such as COPS events, it is highly irregular for police to use another officer’s statement in preparing their own, given the likelihood that it will undermine the reliability of the account which was supposed to have been drawn from the officer’s own recollections, and perhaps body-worn footage. It necessarily follows that Officer Azzi apprised himself of the evidence of Officer Donaldson to which he otherwise ought not be privy.

12. Other than the body-worn footage, there is no contemporaneous record of what occurred. Officer Azzi accepted that it is proper practice for police to make a record when power under LEPRA is exercised. He relied on the presence of the body-worn footage. However, the body-worn footage does not capture what was occurring until very shortly before the accused was approached, spoken to by Officer Donaldson and searched. It does not show what the officers saw prior to making any decision to search the Honda. No contemporaneous note was made by either officer. Indeed, Officer Donaldson had a practice of not carrying a notebook, which he described as a “bad habit”, during the time he was working for the Bankstown Proactive Crime Unit. He knew that the purpose of the notebook would be to make notes of these kinds of situations.

13. There was no attempt to obtain CCTV footage which might have afforded objective evidence as to where police were, vis-a-vis the Honda, so as to assess the accuracy of the evidence about where each vehicle was and what could be seen of the accused when the decision to search the Honda was made.

Sergeant Azzi’s Evidence

11. The Crown submitted that the evidence of Officer Azzi is informative in providing corroboration for the events of 28 August 2023 and that his evidence is not otherwise relevant as he did not search the accused and is not purported to have exercised the power to search the accused under LEPRA. I did not agree. Officer Azzi purports to be involved in the decision to search the accused. Further, his evidence was not entirely corroborative. In many respects, it undermined the evidence of Officer Donaldson.

12. In respect of Officer Azzi’s evidence, I make the following findings:

13. On 28 August 2023, Officers Donaldson and Azzi were in police uniform and conducting patrols in an unmarked police car of the Chester Hill and Villawood areas. They were, at that time, members of the Proactive Crime Unit.

14. At approximately 10.00pm, the officers were travelling westbound on the Hume Highway.

15. Their vehicle was in the right-hand turning lane before traffic lights at an intersection in Bass Hill. They observed the Honda, bearing Queensland registration plates, stopped in the right‑hand turning lane.

16. From whatever vantage point (which were different according to each officer), the officers observed the accused in the Honda perform an illegal U-turn at the traffic lights before almost immediately turning left into the driveway of a motel (“the Motel”).

17. The Crown submitted that the Motel was regularly patrolled by police, as it was known for where drug dealing takes place. That is not an entirely accurate submission. Police had one piece of intelligence known to the officers, from a recent intelligence report that a woman in her early twenties and a man were supplying methylamphetamine and heroin from a particular room of the Motel (“the Intelligence”). There was no intelligence identifying the accused or the Honda as being involved in that or any other offending at the Motel. The Intelligence was in respect of a different car, the two people of interest did not include the accused or a woman who was said to have walked to the Honda, and the particular room of the Motel was not known to be linked to the accused. Neither officer knew whether the woman in question came out of that room or not. Officer Azzi accepted that this was a relevant matter to consider in making the decision to search. Given his stated reliance on the Intelligence, he did not appear to have taken that into account.

18. Officer Azzi’s mindset, as part of the Proactive team on the night in question, was to investigate matters relating to drugs in the area and property crime. More specifically, to patrol to try identify drug dealing. Confirmation bias, in my view, has been a relevant matter in the decision by police to search the accused. The fact that they turned out to be right is not to the point.

19. According to Officer Azzi, on seeing the Honda perform an illegal U‑turn, Officer Donaldson did some registration checks. Officer Azzi later said that he did not see Officer Donaldson doing the checks, a matter that did not reflect well on the accuracy of his evidence. The checks are a matter of record. There is no record of this having occurred. Whether or not checks were carried out, there was no information about the Honda which could provide any grounds for suspicion.

20. I do not accept that the checks were being made, rather the police simply followed the Honda into the Motel.

21. Officer Azzi said that they followed the Honda because of the Intelligence. He described the Intelligence more generally as “ice and heroin being dealt in the car park.” That was not an accurate description of the Intelligence and one which, in my view, was given to align more closely to what he said he saw. Furthermore, when cross-examined, it became clear that he had never seen anyone drug dealing in the car park. This part of his evidence did not reflect well on him.

22. Officer Azzi accepted that not everyone staying at the Motel was involved in drug dealing and that the vast majority of attendees were there for a lawful purpose. He accepted that this was a reasonable matter to factor in when making the decision to stop and search anyone. He did not do so.

23. Officer Azzi said that when they first entered the car park, the Honda was already at the rear of the car park.

24. Officer Azzi said that both officers made the decision to search the accused. However, he also said that before the two officers had split up, they had no conversations about their intentions. It was difficult to accept Officer Azzi’s evidence on that issue. I think it quite likely that the two officers did have a conversation about what they were to do next.

25. Further, Officer Azzi said the decision to search was made at the point that he had seen the woman and had seen the accused “fidgeting” under the steering wheel. This is consistent with a joint decision being made, given that it was Officer Donaldson who carried out the search.

26. If Officer Donaldson is to be accepted, the decision to search the accused had not yet been made and Officer Azzi’s evidence is incorrect. If Officer Azzi is to be accepted, police had decided to search the car before they were aware that the accused had a record for drug manufacturing.

The Basis for Sergeant Azzi’s Decision

13. Officer Azzi accepted that in order to carry out a legal search, he was required to have a reasonable suspicion that the vehicle was carrying drugs, not just some hunch.

14. Officer Azzi said the Honda drove towards the far end of the car park and slowly reversed into a car park at the back right-hand side. He said that the police car was about 10 to 15 metres away.

15. Officer Azzi said that they were in an unmarked car and that one reason for that was so members of the public would not generally be aware of their presence and so they could detect crime without people becoming alerted and scared off. He said that it made their observations easier. I accept that evidence and it accords with commonsense.

16. Officer Donaldson, however, said that they parked much closer, a matter to which I will return.

17. I find that the police were parked further away than as stated by Officer Donaldson and at least as far as Officer Azzi had stated.

18. I find it unlikely that the unmarked police car with uniformed police would pull directly up on the Honda whilst trying to maintain some level of anonymity and stealth. If the police car was almost directly behind the accused’s car within a metre or so as stated by Officer Donaldson, the risk of police being detected would, in my view, have been unacceptably high.

19. According to Officer Azzi, by reference to the map, which is Exhibit 1, at the time police entered, the Honda had reversed into the space about ten car spaces up. When consideration is made of the car spaces, I find that the police car was at least 15 metres away.

20. That has had obvious implications for the evidence in respect of just what the officers could see from that vantage point.

21. Officer Azzi said that he saw a male inside the Honda.

22. Officer Azzi also said he then saw a Caucasian woman, possibly wearing glasses, and a man exit one of the rooms. He said the woman walked towards the Honda and approached the driver’s door (which would have been on the far side from the officers) within about five to eight metres. Officer Azzi said the woman looked towards police, turned around and started walking back towards her room. He said that, at that time, the police car was still rolling forward into the Motel with its lights on.

23. Officer Azzi accepted that there was nothing suspicious about a person walking out of a motel room at that time of night. In any event, any suspicion either officer had about the woman was likely allayed by the time the accused was searched, as she had returned for a second time, approached police, had been spoken to, and her details taken and checked by Officer Donaldson, a matter to which I will return in the context of Officer Donaldson’s evidence.

24. By the time the Honda was searched, Officer Azzi had no reason to think that the woman was involved with the accused in dealing drugs. The woman was not the person named in the Intelligence and no steps were taken to find out if she had come from the unit number named in the Intelligence.

25. As to what Officer Azzi observed of the accused, he said that the man in the Honda appeared to be “feeling something under the steering wheel”, that he saw the “movement of hands” and that he was “looking down in an erratic kind of movement”. This caused Officer Azzi to conclude that he was “fiddling with something”, later described as “fidgeting”. He said that he saw this clearly, despite it being 10.00pm and dark, and despite the movement taking place under the steering wheel. He said that lighting was coming from various rooms in the Motel. He said that perhaps it was light from the police car headlights.

26. That evidence beggared belief given the impossible line of sight between Officer Azzi in the police car, some 15 metres away, and the asserted “fidgeting” below the steering wheel seen through either the side window or the windscreen. The assertion that the accused was “looking down in an erratic movement” was unconvincing.

27. However, even if this had been seen by Officer Azzi, the movements were accepted by him to not be inherently suspicious. The car had already come to a stop and Officer Azzi accepted that the accused could have been doing something unsuspicious such as using his mobile phone.

28. Inconsistently with Officer Donaldson’s evidence, Officer Azzi said that they did not know the identity of the accused by the time they made their decision to search him, consistent with the decision having been a joint one and made much earlier than as asserted by Officer Donaldson.

29. On the basis of observations made by Officer Azzi and his conclusions about what was occurring, he had, in my view, no reasonable belief that drugs might be found in the Honda by the time it was searched by Officer Donaldson.

Senior Constable Donaldson’s Evidence

30. Officer Donaldson carried out the search of the Honda and, ultimately, it was his decision to search that is of paramount importance.

31. On the night in question, Officer Donaldson’s mindset was that he was “looking for people actively breaking the law or conducting searches, on people or vehicles”. He was actively looking for potential drug suppliers and other acts of criminality. Again, matters of confirmation bias arise.

32. Officer Donaldson said that on entry into the Motel, they were only two or three metres behind the Honda, that Officer Azzi pulled the police car directly behind the Honda, and stopped within a metre of the car.

33. Officer Donaldson said a woman walked to within 30 centimetres of the driver’s window of the Honda, and stayed there for “mere seconds” before walking away. He saw no interaction with the accused. He said that by that time, the Honda had not parked and that only after the woman walked away, did the Honda reverse into the car space.

34. Officer Donaldson said that once the woman walked away, he could see the accused “fidgeting and moving excessively.” Officer Donaldson said the accused’s head and upper body were moving from left to right and the accused was, at one time, bending down. He accepted that he did not see the accused’s head the entire time. He said that the accused was in the process of reversing the car to park.

35. Just how this manoeuvre could be carried out by the Honda with the police car within a metre of the Honda and parked directly behind it, was not made clear. Officer Donaldson’s evidence could not be accepted on that issue. Furthermore, the “excessive fidgeting” identified, if Officer Donaldson is to be accepted, occurred where the accused had been effectively boxed in and was trying to reverse park, rendering it much less suspicious.

36. Officer Donaldson conducted searches on his mobile phone in respect of the Honda. The Honda was found to be registered to a company. He decided to speak to the accused. Consistent with information Officer Donaldson had, the accused said the car was not his but belonged to his wife. Police had no reason to think otherwise.

37. The accused gave Officer Donaldson his driver’s licence. From further searches conducted on his mobile device, Officer Donaldson became aware that the accused was on parole for the manufacture of drugs and had previous convictions for drug offences.

38. Officer Donaldson said that his decision to search the Honda was informed by five matters:

39. The time of night;

40. The location of the Motel and knowing that two days earlier, prohibited drugs had been sold out of the Motel and the car park;

41. The accused’s behaviour of “fidgeting” in the vehicle before he reversed into the parking spot;

42. The female approaching the accused, then leaving. He regarded this as a hallmark of a potential drug deal, given that it was at night, in an isolated location and involved a quick interaction with someone approaching a door or window then leaving; and

43. The accused’s most recent charges.

44. As to whether any one or combination of factors could support a reasonable suspicion that drugs might be found in the vehicle, I find as follows:

45. Officer Donaldson’s evidence in respect of suspicion that might attach to a person entering the Motel at 10.00pm bordered on ludicrous. He said that it was inherently suspicious for a person to drive into the Motel at that time, despite agreeing that people may have been out for dinner or simply staying at the Motel. He did ultimately accept that it did not give rise to a suspicion for drug offences. Accordingly, it can be removed as a reasonable basis to suspect drugs might be present in the Honda.

46. Officer Donaldson’s reliance on knowing that drugs were being sold out of the Motel and car park was asserted in almost identical terms to that of Officer Azzi. Disconcertingly, it was identical in a respect of which they were both wrong. That is, that the Intelligence asserted there had been dealing out of the car park, when in fact it had been dealing out of a particular unit. That identical misstatement caused me to seriously question the extent of any collusion between the officers, particularly where some information had been shared and, indeed, the veracity of both officer’s account.

47. As to the observations of the accused, Officer Donaldson’s body-worn footage gives a good indication of how little can be seen inside the accused’s car, even from about half a metre with the light from the body-worn device shining at it. The idea that Officer Donaldson could see suspicious “fidgeting and excessive moving” either before or during the time the Honda reversed into the park as he sat in the car directly behind it, beggared belief. If I accept Officer Donaldson, there was a reasonable possibility that the moving was because the police car was parked so close and that it was not excessive in that sense. Furthermore, there is a question as to whether the police saw this at all. Officer Donaldson said nothing to the accused about this being the reason why he was going to search him. The fact that both officers used the word “fidgeting” did nothing to enhance their evidence. It is a conclusionary word that said nothing of what they could see.

48. The only objective evidence, the body‑worn footage, shows that at about 10.08pm, the woman who had looked to Officer Donaldson like a person who might be involved in a drug deal, had returned to the scene, had given her particulars and had shown Officer Donaldson her passport. She was of no further interest to police. Officer Donaldson did not record her details. However, the body-worn footage shows her to be a Ms Rogers. Search records show that he enquired on his mobile device about the woman, which recorded that there was “nil adverse” and that there was nothing suspicious about her.

49. Accordingly, the presence of Ms Rogers cannot be a matter that was reasonable to rely on in supporting any suspicion that there were drugs in the Honda. She had been excluded from serious consideration prior to the search.

50. Further, there is some doubt that the woman went to the accused’s window at all. Officer Donaldson asked her no questions about having done so and said nothing to the accused about that prior to the search. When he was pressed in cross-examination as to whether he saw that or not, he said he could not recall. He later backtracked from that position, saying he could not be mistaken about it. Officer Azzi’s evidence did not support him as to the closeness of coming to the car. This part of Officer Donaldson’s evidence had all the hallmarks of having been recently invented. In any event, Officer Donaldson had, prior to the search, excluded her as a person that might be involved in any drug transaction. Officer Donaldson commenced searching the accused at 10.09pm.

51. Prior to the search, Officer Donaldson performed checks which told him that the accused was on parole. It was the accused who told him it had been for charges of drug manufacturing. It was or should have been clear to Officer Donaldson that the accused was not either of the people named in the Intelligence and was not driving a car that had been identified by it. The accused had readily identified himself to police by providing his licence, and had been cooperative throughout, even after he had been cautioned.

52. Officer Donaldson agreed that without relying on what he had observed of the accused in the Motel, there would not be a reasonable suspicion giving rise to his power to search. He accepted that the traffic matter, the Intelligence and the accused’s criminal history would not be sufficient.

53. The statement at about 10.09pm by Officer Donaldson of his reasons for searching the accused and the Honda was captured in the body-worn footage.

54. The recording, in my view, contains the most reliable evidence of the reasons why Officer Donaldson conducted the search of the Honda. Given the recording, there could be no question that these are the stated reasons to search the Honda given by Officer Donaldson to the accused.

55. It is the most contemporaneous record of the reasons, delivered without the intervention of proceedings.

56. Knowing it was being recorded, Officer Donaldson is likely to have stated accurately his reasons for searching the accused, particularly where he is required by law to do so.

57. Section 201(1) of LEPRA provides that Part 15 of the Act titled, ‘Safeguards Relating to Powers’, applies to the exercise of the power to search a vehicle and Officer Donaldson was required to inform the accused of “the reason for the exercise of the power”.

58. Officer Donaldson told the accused that the reason for his decision to exercise his power to search was because, “You’ve got a history with drugs… and you’ve obviously come into this hotel, which is really well known for drugs.”

59. Importantly, there is misstatement of the status of the Motel as set out in the Intelligence. There was no information that the Motel was “really well known for drugs”, only that two people were involved in dealing out of one particular unit. Further, if this statement is accurate, it is clear that no reliance was placed by Officer Donaldson on the woman approaching the car or on any “fidgeting” by the accused.

60. Officer Donaldson conceded that, in his opinion, those grounds combined did not found a “reasonable” suspicion, much less the criminal record. Accordingly, his subjective belief was formed on all but one irrelevant consideration, and which he accepted could not found a reasonable suspicion.

61. Officer Donaldson agreed that this recording contained likely the most reliable account of his reasoning.

62. Reliance on the other matters were only stated later, after the drugs had been found. Reliance on what the accused could be seen doing in his car as he tried to park was difficult to accept where the officers’ accounts were materially different and it is unlikely that this could have been seen, or if seen, reasonably be interpreted as being suspicious of drug activity. Reliance on the woman coming to the car either did not occur or was no longer relevant.

63. Officer Donaldson then searched the accused and the Honda.

64. He found 57.09 grams of methylamphetamine and 3.2 grams of heroin.

65. On the strength of finding the drugs in the Honda, police performed a Cellebrite download of the mobile phone in the accused’s possession and the content revealed extensive drug supply activity.

66. The accused was placed under arrest and conveyed to Bankstown Police Station.

Issues for Consideration

55. The first issue for consideration is whether the search of the accused and the Honda was carried out within the powers prescribed by LEPRA.

56. If the Court determines the police search was conducted in contravention of LEPRA, the Court should turn to consider the provisions of s 138 of the Evidence Act.

Relevant Legislation

57. Section 21 of LEPRA provides,

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists—

…

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

58. Similarly, s 36 of LEPRA provides,

(1) A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists—

…

(e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985

59. The stop and/or search of a person or vehicle without power (or informed consent) is a contravention of Australian law: R v Rondo [2001] NSWCCA 540 at [54] (“Rondo”).

Reasonable Suspicion

60. Both ss 21 and 36 of LEPRA require there to be demonstrated a subjective state of mind on the part of the police officer that he or she held a relevant suspicion. Consideration of cases such as George v Rockett [1990] HCA 26; (1990) 170 CLR 104, Ruddock v Taylor (2005) 222 CLR 612 and Rondo make clear the following principles:

61. 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 of fear of one of the state of affairs covered by the Act. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

62. Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. It may be based on hearsay information which may be inadmissible in evidence, but the information must have some probative value.

63. The test involves an inquiry into the information in the mind of the police officers stopping the person or the vehicle and undertaking the decision to search. Having ascertained that information, the question is whether that information afforded reasonable grounds for the suspicion that the police officer formed. Regard must be had to the source of the information and its content, seen in light of the whole of the surrounding circumstances.

64. For the search to have been lawful, it must be demonstrated that the grounds relied on by the officer(s) reasonably supported the relevant suspicion. That involves a two-step process. Firstly, a factual finding (on the balance of probabilities: s 142(1)(a) of the Evidence Act) as to what grounds were relied on at the time. Secondly, an objective evaluative judgment by the Court as to the reasonableness of those grounds.

65. If an officer forms a suspicion based on grounds that are not reasonable, then the suspicion will not be a relevant suspicion to engage the power because it will have taken into account irrelevant matters.

66. The Crown relied on Azar v DPP [2014] NSWSC 132 in which police searched a hire vehicle in an area where drug supply was known to be prevalent. The police relied on the fact that hire cars are known to be involved in the supply and transportation of prohibited drugs; that the accused was driving in an area where drug supply was prevalent; and a male passenger entered the vehicle before alighting after a very short period of time (a matter quintessential to many street supplies). In that case, cash and cocaine was found.

67. By way of counterfactual, police in this case had little evidence of the Motel being used as a prevalent drug supply area. The Intelligence established that only one unit in the Motel was being used for drug supply. The Intelligence was in no way linked to the accused. The woman who may have been thought to have been involved at the window of the Honda had been ruled out.

68. The Crown relies on the observations made by Adamson J as to the importance of having regard to the relevance of ‘police experience’ and that in forming a suspicion, a police officer is drawing on his or her training and experience and the whole of his or her observations. The fact that each individual reason may not themselves amount to a reasonable suspicion does not mean that when considered with other evidence, they may not act in combination to arrive at such a suspicion.

69. The Crown submits that this is one such case. When the Court looks at the evidence as a whole and considers the factors in combination that informed the police decision to conduct the search, the Court would find the suspicion was reasonable. For the reasons that I have stated, I do not agree.

70. Given my findings of fact, the only relevant or probative information which might give rise to any suspicion was the accused’s criminal history. The other matters stated to be relied on were not accepted as giving rise to a suspicion by the time of the search. Whether the fact of the history affords a reasonable suspicion that the accused was carrying drugs on that occasion in the Honda is a matter for determination.

The Remaining Factor – The Criminal Record

69. I have concluded that the search occurred where neither officer had a reasonable basis to suspect that drugs might be in the Honda. Once one distinguishes between factors that one can properly add to any suspicions and factors that arise from an unfounded conclusion, only the criminal record remains. I have done so bearing in mind that such a suspicion can be based on a number of factors and that Officer Donaldson’s assessment of any factor was informed by his experience as a police officer.

70. As to the sole surviving basis, I accept the accused’s submission that Parliament could not have intended that if police officers were aware of a citizen’s criminal record, that would mean, on its own, that a police officer could stop, detain and search a person at any time on the basis of a reasonable suspicion that that person might be committing like offences on any occasion in any circumstance.

71. In Reyes*‑Carrion v State of New South Wales* [2025] NSWDC 28, Newlinds SC DCJ concluded at [68] that,

“The mere fact that a person has a prior criminal record or there are intelligence reports in respect of that person, or a combination of both, will never be sufficient to constitute reasonable grounds for the requisite suspicion is an overstatement and that the better view is, ordinarily such information on its own will not be enough, but each case will turn on its own specific facts.”

Summary of Findings in Respect of Reasonable Cause

72. The statements about the importance of the Motel car park as an area for drug dealing, the accused’s movements in the car, and the relevance of the woman in the car park were, in my view, an ex post facto attempt by both officers to justify what was an arbitrary exercise of power to search the Honda based only on the accused’s history.

73. I accept the accused’s submission that this was another case involving a ‘random crime stop’ of the kind described by McClintock SC DCJ in R v Buddee [2016] NSWDC 422.

74. The powers of search were exercised unlawfully and in breach of LEPRA.

Exclusion of Improperly or Illegally Obtained Evidence

75. Having concluded that the powers of the police were not lawfully exercised in accordance with LEPRA, it is necessary to consider whether or not the evidence ought be admitted, giving consideration to s 138 of the Evidence Act.

76. The onus was on the accused in seeking exclusion of the evidence to establish that it was unlawfully or improperly obtained. Having met that onus, it is for the Crown to satisfy the Court that the desirability of admitting such evidence outweighs the undesirability of admitting it, given the way in which it was obtained: R v Riley, Christopher [2020] NSWCCA 283 at [35]. The standard of proof upon findings of fact on the question of impropriety is on the balance of probabilities.

Legal Principles

77. Section 138(1) of the Evidence Act relevantly provides that evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way it was.

78. It is accepted by the Crown that if the accused establishes that the actions of the police were in contravention of LEPRA in choosing to conduct the search, a causal nexus would arise.

79. I find that there is a clear causal connection between the illegality and the evidence the subject of the claim for exclusion. The finding of the drugs in the Honda and the text messages on the phone were only possible by reason of the illegal search.

80. The Crown submitted that the Court could not rely on the failure of the police to record their actions in their notebooks or preparing witness statements that withstand the detailed scrutiny of cross-examination as forming a causal connection between the obtaining of the relevant evidence and the impropriety. In the Crown’s submission, these factors are merely a demonstration of undesirable record-keeping.

81. I agree. That is not the failure that is the subject of the controversy. It was the decision to search in the face of neither officer forming a reasonable suspicion that there were drugs in the car.

82. Section 138(3) of the Evidence Act provides,

Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

83. This is not an exhaustive list.

84. The Court may also take into account any other relevant matters. The factors listed in s 138(3) may themselves involve issues of evaluation.

85. Section 138 seeks to balance the competing policy considerations identified in Bunning v Cross (1978) 141 CLR 54 (“Bunning v Cross”), namely, the desirable goal of bringing to conviction the wrongdoer, and the undesirable effect of curial approval or even encouragement being given to the conduct of those whose task it is to enforce the law.

Probative Value of the Evidence: s 138(3)(a)

86. Probative value is assessed on the assumption that the evidence will be accepted: IMM v The Queen (2016) 257 CLR 300; R v Bauer (2018) 92 ALJR 846. The possible use to which the evidence might be put is to be taken at its highest.

87. The evidence of the search and the subsequent interrogation of the accused’s phone is relied on by the Crown to establish almost entirely each count on the indictment. The methylamphetamine and heroin seized by police on 28 August 2023 is essential to establish counts 1 and 2 on the indictment. The content of the text messages located on the mobile phone seized are relied on almost exclusively to establish counts 3 to 6 on the indictment. The texts are also relevant to counts 1 and 2 as valuable context, including to exclude any reasonable possibility that the drugs were for the accused’s personal use or in possession by someone else, such as the owner of the car.

88. The “prejudice” to a defendant arising simply from the fact evidence tends to prove his or her guilt would not, in any way, support exclusion of the evidence.

89. For counts 1 and 2, the probative value of the evidence is high. The content of the mobile phone text messages, central to proof of counts 3 to 6, are of less probative value, however, only slightly so in my view, where the latest text message is on 28 August 2023, the date the phone was seized from the accused. I did not regard the inference linking the messages to the accused to be “speculative” when the evidence is taken at its highest.

90. The finding of the drugs in the Honda led directly to the interrogation of the accused’s phone. It provides powerful evidence of possession with intention to supply two illegal drugs and supply on other occasions. This factor speaks in favour of the admission of the evidence.

Importance of the Evidence to the Proceedings: s 138(3)(b)

91. The evidence is extremely important. Without it, the Crown has no case. There is no other evidence available to the Crown that is untainted by the illegality. This factor also speaks in favour of the admission of the evidence.

Nature of the Relevant Offence, Cause of Action or Defence and the Nature of the Subject-Matter of the Proceeding: s 138(3)(c)

92. The more grave the alleged offending, the greater the public interest in conviction and punishment of those who are guilty: R**egina v MM [2004] NSWCCA 364 at [54].

93. The evidence is capable of establishing serious criminal conduct of the possession and ongoing supply of illicit drugs.

94. The allegations are contained in six counts pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) for the supply of methylamphetamine and heroin. Count 5 is particularly serious, involving the supply of 185.5 grams of methylamphetamine over a number of days. On indictment, pursuant to s 32 of the DMT Act, each offence carries a maximum penalty of 15 years’ imprisonment.

95. I accept the Crown’s submission that the evidence supports that the accused has played a substantial role in disseminating these prohibited substances into the community. That said, Parente v R [2017] NSWCCA 284 provides that the conviction and sentence of a person dealing in drugs to a substantial degree may not result in a term of imprisonment.

Gravity of the Impropriety or Contravention: s 138(3)(d)

Whether the Impropriety was Deliberate or Reckless: s 138(3)(e)

96. I do not accept the Crown’s submission that this case does not involve a serious breach of LEPRA by police or that it was not deliberate, reckless or even negligent.

97. I find that the search in this case was akin to a ‘random crime stop’ (Buddee supra) to satisfy the curiosity or a hunch of the officers, without the specific state of mind required by LEPRA. I accept the accused’s submission that the conduct has occurred in the face of repeated admonishments of the Courts on this issue.

98. Obtaining evidence in deliberate, wilful or even reckless disregard of an individual’s civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.

99. The accused relies on R v Helmhout [2001] NSWCCA 372 in which Hulme J held at [21], that “reckless” involved, at least, some advertence to the possibility of a breach of the relevant law and a conscious decision to proceed regardless. It is submitted that the actions and lack of appropriate concern for whether the search in this case was lawful, was at best reckless, and at worst deliberate.

100. In my view, although aware of the requirement for a reasonable suspicion, it was given scant or no regard. There was no basis for the suspicion from the outset and no reconsideration of suspicion as other facts came to light. For example, in respect of the woman near the car, the police had determined to search the accused without giving real consideration to whether or not they had reasonable cause.

101. The impropriety is, in my view, relatively high. The police had no reasonable basis to search the accused, who on an objective assessment of what was occurring, was trying to park his car at the Motel. The suggestion that the accused was “fidgeting” suggested, much less reasonably, that the presence of the drugs in the car was, in my view, fanciful.

102. The actions by the officers were highly reckless, if not deliberate. They were intent on searching the accused’s car based on almost nothing, consistent with Officer Azzi’s evidence that they had made the decision before they split up. It was, in my view, a clear example of an abuse of search power.

103. As a minimum, members of the society should expect that they are free to move about the community, including at 10.00pm, and go to a hotel or motel without being targeted in this way. It is no answer to the question that the police were right and that the accused was found with illicit drugs in the car driven by him. There is a strong public interest in the fair and proper exercise of law enforcement powers. My focus has been on the improper conduct of police, rather than on any unfairness to the accused: Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426. It follows that a reasonable cause for suspicion requires significantly more than a person moving in their car, as they try to reverse park, where on one view of the evidence, police had boxed them in. It requires in this case more than observing a person coming towards a car and then moving away, where police are able to exclude the relevance of that action prior to the search. The differences in the account from the officers made the entire scenario difficult to accept. However, even if it is accepted that something like the fidgeting and the woman coming to the window occurred, by the time the search occurred, that was an irrelevant consideration. The later reliance on it by the two officers in their evidence in support of holding a reasonable suspicion was, in my view, disingenuous.

104. This was not a minor contravention. The police had nothing to support a reasonable suspicion, other than the fact that the accused had been involved in drug offences in the past. On one view of the evidence, they had already determined to search prior to knowing that information. However, if the decision had been made with Officer Donaldson knowing that information, it makes little difference. A person who has committed prior offences and is in the community on bail or on parole, is entitled to the same protections under LEPRA as any other member of the community. When it comes to them being searched by police, LEPRA applies equally to all.

105. LEPRA establishes clearly the standards of conduct that are required of its officers and the breach in this case is a clear breach of minimum standards: Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219 at [42].

106. The nature of the breach speaks against the admission of the evidence.

Whether the Impropriety or Contravention was Contrary to or Inconsistent with a Right of a Person Recognised by the International Covenant on Civil and Political Rights: s 138(3)(f)

107. Article 9 of the International Covenant on Civil and Political Rights provides that,

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

108. Article 17 provides that,

“No one shall be subjected to arbitrary or unlawful interference with his privacy… Everyone has the right to the protection of the law against such interference or attacks.”

109. In Ousley v The Queen (1997) 192 CLR 69, McHugh J observed at [111] – [112] that absent statutory authority, a search without consent involves tortious conduct. In Trans Nominees v Ryan and Raven (1986) 42 SASR 361, Jacobs J described at [369] that an unlawful search without warrant is “an invasion of the liberty of the subject which was jealously protected by the common law”.

110. Accordingly, the accused submits that the police conduct was a serious intrusion upon his rights: R v Sibraa [2012] NSWCCA 19 per Hulme J at [18].

111. The Court should expressly consider the extent to which an individual’s rights have been infringed. The Court acknowledges that there are significant public policy considerations in ensuring that police are not subjecting its citizens to routine searches or deprivation of their liberty and evidence of this nature should be obtained within the safeguards of the ample powers according to the safeguard.

112. The breach of the accused’s rights to the protection of the law is a relevant factor which I have taken into account and which speaks against the admission of the evidence.

Whether any Other Proceeding (Whether or not in a Court) has been or is Likely to be Taken in Relation to the Impropriety: s 138(3)(g)

113. There is no evidence that disciplinary action or similar will be taken against the officers.

114. The Crown submits that the Court should do no more than merely observe that there was an impropriety or contravention without further sanction.

115. As the Court noted in the R v Gallagher*; R v* Burridge [2015] NSWCCA 228 at [45], the fact that no other proceedings will be taken in relation to the contravention is a factor in favour of rejecting the evidence, as this will be the only way to mark the contravention.

116. Given the nature of illegality and the ongoing breaches in respect of searches of this kind, it is likely that a mere observation that a contravention occurred would do nothing to dissuade police from acting similarly in the future. Accordingly, that fact speaks in favour of the rejection of the evidence.

Difficulty (if any) of Obtaining the Evidence without Impropriety: s 138(3)(h)

117. In Bunning v Cross, the Court identified as a relevant consideration the “ease with which the law might have been complied with in procuring the evidence in question”. Their Honours explained that while a deliberate “cutting of corners” would tend against admission of illegally obtained evidence, in the circumstances of that case, the fact that the driver had been unlawfully required to undergo a test which he could easily have lawfully been required to undergo, was a factor of little significance.

118. The Crown submits that where the illegality was neither deliberate or reckless, the difficulty of obtaining the evidence lawfully should be a neutral consideration.

119. It is not possible to forecast whether police would ever have had reasonable cause to search the Honda and the phone in the accused’s possession. It was open to police to seek a warrant, although based on the information they had, it would be unlikely, in my view, that one would be granted. It was also open, however, for the officers to wait and see what transpired; to observe the accused further and to gather such evidence. They had the accused essentially pinned down in the Motel car park. However, they chose to act on inconclusive movements by the accused in the car, irrelevant intelligence regarding a room in the Motel and unrelated players, and the accused’s criminal record. In short, in my view, they were engaged in lazy policing, made unreasonable assumptions, and cut corners.

120. That failure speaks against the admission of the evidence.

Conclusion

121. I find that the officers carried out the search in breach of ss 21 and 36 of LEPRA.

122. I have considered all of the considerations set out in the Evidence Act.

123. As a final observation, the search was carried out illegally, in breach of a comprehensive legislative regime that has been in operation for more than two decades. Notions of reasonable suspicion founding a search have been in existence for much longer. The purpose of the legislation is to balance the needs of law enforcement to conduct lawful searches, as against the rights of its citizens to move freely from arbitrary interference. Despite repeated denunciation by the Courts of the practices of searching without reasonable suspicion, the two police officers in this case proceeded without due regard. There is a strong public interest in calling for strict compliance.

124. On balance, I am of the view that it has not been established by the Crown that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way that it was obtained under s 138(1) of the Evidence Act.

125. The evidence of the search of the accused’s car and its contents and the contents of the phone found in the possession of the accused are excluded.

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