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

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 - NSWDC 2025 case summary — Zoe

[6]

Proactive policing

Most of the various officers involved were all engaged either as part of a "protective crime squad" in the command area of Liverpool, some were assigned to a subsidiary of that proactive crime squad known as "Operation Deadpool". In one way or another, the majority of officers involved were engaged in what is known as "proactive policing".
Proactive police work means what it says. The police involved are proactively engaged in identifying crime and hopefully disrupting or preventing it, as opposed to reacting to reports of crime. As part of this approach, it is inevitable that police will sometimes be considering using stop and search powers in circumstances where they have limited information to allow them to reach the relevant level of suspicion on reasonable grounds required by LEPRA.
This is not to suggest that proactive policing is not a sound policy, it may well be. The notion of police detecting and disrupting crime before committed or escalated is commendable. It is no part of the Court's function to advise or direct police as to how to perform their important role in society and exercise their many powers, so long as the police are operating within the bounds of those powers. It is the Court's role to determine if those powers have been properly exercised. The facts of these cases demonstrate that there is a very fine line between an officer holding the relevant suspicion on reasonable grounds on the one hand, and an officer honestly seeking to deter and detect criminals by the use of stop and search methods without there being reasonable grounds to engage the power to do so. Identifying which side of that line one is on is difficult. To put it another way, the worthy goals of proactive policing will inevitably produce a tension between those goals and the statutory prerequisite and limits to the use of stop and search powers. Individual police must remain vigilant to ensure that, not only do they hold a relevant suspicion, but that it is based on reasonable grounds before exercising the powers conferred by LEPRA. These powers amount to a significant infringement on what are people's rights to go about their daily life without being detained and searched by police. Properly used, the powers are a necessary aid to the orderly conduct of society and the effective prevention of crime, but if not used properly, substantially erode liberties so essential to that same society.
Any pressure, expressly or implicitly, brought to bear on officers patrolling, to the effect that it is necessary for them to effect a certain number of stop and searches per shift, is to be discouraged. Such pressure may well have the effect of distracting particular officers from applying the proper legal test rigorously. I am not suggesting that has occurred here, but the topic was explored in cross-examination and a submission to that effect was made by counsel. I am not satisfied that occurred. However, I can understand why the submission was made and simply record that individual officers ought never feel under any pressure to use the powers other than if they form the relevant opinion on reasonable grounds.

[7]

What can or cannot constitute "reasonable grounds"?

The Plaintiffs have a substantial criminal history involving illicit drugs. Each officer's explanation as to their suspicion and the grounds upon which it was based included, as one of those grounds, this history, which becomes known, at least at a very high level, to the police each time they interacted with the Plaintiffs by them accessing the NSW Police database, known as the Computerised Operational Policing System ("COPS"). A second common ground is that the area in which the Plaintiffs were located is known for drug crime. However, the First Plaintiff lives very near the area in question, and it is therefore not surprising that from time to time he would be noticed moving around that area. A third common ground is that the police have access to information concerning earlier searches and opinions held by other officers on earlier occasions concerning the car and the Plaintiffs. This is referred to as "intelligence". To rely on this sort of information as a "reasonable ground" is, in my view, dangerous because it runs the risk of a 'snowball effect' with a series of police officers recording opinions which are later relied on by other officers in forming similar opinions, which themselves become a part of the record. Ultimately, these opinions will inevitably become self-fulfilling.
For reasons I will come to, the mere fact that a person has a criminal history on its own will hardly ever be reasonable grounds for a relevant suspicion under the statute. Moreover, the fact that a person is moving around the area in which he or she lives, even if it is a known crime area, again on its own or combined with a criminal history, will hardly ever be sufficient. The fact that a person has been the subject of earlier 'stop and searches' based on "suspicion of other officers" should also be close to irrelevant unless those searches strongly suggest ongoing actual criminal activity. Nor do I think that the combination of a person's criminal history, limited "intelligence", and the location in which they were found being known for crime can be a basis for a suspicion on reasonable grounds unless the circumstances are extreme and unusual. The facts of these cases disclose that many police officers honestly, but wrongly, believe the combination of that sort of information does amount to reasonable grounds. Police need to be conscious that, while there may be circumstances where that combination of grounds is sufficient, they will be rare and extreme.
On behalf of the Plaintiffs, it was submitted that the decisions of both Fitzsimmons SC DCJ and the Court of Appeal in Madden v State of New South Wales [2022] NSWDC 647 ("Madden") and [2024] NSWCA 40 ("Madden Appeal"), together with what Charteris SC DCJ said in a O'Connor v R (2009/271288 - unreported, District Court of New South Wales, 12 August 2010) ("O'Connor"), are authority for the proposition that the mere fact that a person has a prior criminal record and/or there are intelligence reports in respect of that person on their own or together can never constitute reasonable grounds for the requisite suspicion - I consider such statements, as they appear in those cases, need to be read and understood in the context of the facts as found in those cases.
For reasons I will develop, I consider that there can never be any hard and fast rules, except in the most extreme cases, as to what type of information can or cannot, in the specific circumstances of a particular case, constitute reasonable grounds. It is the totality of the specific grounds relied on that must be considered. Those specific grounds will never be replicated from one case to another, which is why I think it is not helpful to make sweeping, general statements as to types of information relied on as grounds.

[8]

The use of the random breath test power

Police officers have a power to stop a person who is driving a motor vehicle for the purpose of requiring the person to submit to a breath test pursuant to s 3 of Schedule 3 of the Road Transport Act 2013 (NSW) ("RTA").
It should be clear that police cannot rely on the statutory random breath test ("RBT") under s 3 of Schedule 3 of the RTA, so as to assist in their "proactive" policing or to satisfy curiosity or a hunch not amounting to a specific state of mind as required by LEPRA - see R v Buddee [2016] NSWDC 422; R v Large [2019] NSWDC 627 at [106]; and R v Zhang [2022] NSWDC 457 at [18] per Coleman SC DCJ.
In this case, it was put to most of the police witnesses that the various incidents, which often commenced with the use of the RBT power, demonstrate an unlawful use of that power for the simple reason that the stops were not "random" at all but were the consequence of some preliminary investigations carried out by police officers by searching COPS for the registration of the car and any information concerning its owner.
Most officers denied that occurred or ever occurs. However, at least one of them (Constable Martyn) as good as admitted that sometimes it occurs. The timing in some of the interactions between the initial enquiry made of COPS in relation to the vehicle and the time the body worn cameras are switched on by police, which occurs after the RBT has been completed and other interactions have taken place, is such to raise a strong suspicion that perhaps it occurred on some occasions here.
I will take that question no further because, as these matters are pleaded, there is no allegation to the effect that the stop and detaining pursuant to the purported RBT power constituted a tort, rather, the pleading alleges wrongful stopping and detention at a point in time after the RBT has been completed. Ultimately, Mr Canceri, who appeared for the Plaintiffs, conceded that this question really goes nowhere in the resolution of the issues in the case, other than it was submitted that it ought have an impact on my assessment of the credit of the various police officers.
That being said, police officers need to understand that the power to stop and detain drivers of motor vehicles pursuant to the RBT power is only to be used, and can only be used, for its proper purpose and ought be conducted randomly. It ought never be used as a method for police to stop a vehicle on a hunch, falling short of a statutory suspicion, so as to allow time to make further enquiries or have interactions with the people in the vehicle, which may be used as grounds for forming a reasonable suspicion under ss 21 or 36 of LEPRA.

[11]

The Statutory regime

Sections 21 and 36 of LEPRA are relevantly in the following terms: 21 Power to search persons and seize and detain things without warrant (cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37) (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists - … (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug… 36 Power to search vehicles and seize things without warrant (cf Crimes Act 1900, ss 357, 357E, Police Powers (Vehicles) Act 1998, s 10, Drug Misuse and Trafficking Act 1985, s 37) (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, …
Section 32 of LEPRA is relevantly in the following terms: 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. …
Sections 202 and 204A(1) of LEPRA are relevantly in the following terms: 202 Police officers to provide information when exercising powers (1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power - (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with this section - (a) as soon as it is reasonably practicable to do so, or (b) in the case of a direction, requirement or request to a single person - before giving or making the direction, requirement or request. … 204A Validity of exercise of powers (1) A failure by a police officer to comply with an obligation under this Part to provide the name of the police officer or his or her place of duty when exercising a power to which this Part applies does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power.

[13]

Reasonable grounds

A finding of a subjective state of suspicion leads to an objective question, being was the suspicion held on reasonable grounds. This question or test, simple on its face, has beneath it large and perhaps difficult questions of law.
The question as to whether a police officer had reasonable grounds for forming the requisite suspicion can only be answered by the application of an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 ("Anderson") at [714] per Kirby P (Meagher and Sheller JJA agreeing) cited in Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at [14] per McColl JA; New South Wales v Randall [2017] NSWCA 88 ("Randall") per Basten JA at [12]-[13]; R v Independent Broad-based Anti-corruption Commissioner [2015] VSC 374 per Riordan J at [118]-[136]; and McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 per Hayne J at [60] and [68].
The legal principle was explained by Hely J in Williams v Keelty (2001) 111 FCRJ; [2001] FCA 1301 ("Williams") at [166], where his Honour said (my emphasis): "It is the issuing officer who is required to be satisfied that there are reasonable grounds for suspecting the relevant matters. The notion of reasonable grounds for a suspicion imports an objective test, but "reasonable" involves a value or normative judgment (Greiner v Independent Commission Against Corruption [1992] 28 NSWLR 125 at 167), and there may well be legitimate differences of opinion as to what falls within the term, particularly when it is used in relation to a nebulous expression such as "suspicion". A Court is not entitled to substitute its own opinion on that question for the opinion of the issuing officer. That does not mean that the issuing officer has an unexaminable discretion; it does mean, however, that the issuing officer's decision is only impeachable if the decision was one which the officer could not lawfully reach on the materials before him: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276."
It is fair to say that there is a little confusion between some of the various authorities in this area. This provoked a lengthy debate between counsel as to the proper legal approach for a Court to take when considering the question of reasonable grounds.
I take as the starting point that there is a two-step process. The first step is a question of fact as to whether an officer formed a relevant suspicion. That poses a subjective question as to whether a suspicion, being a "state of conjecture or surmise", was held by an officer. Absent a finding of dishonesty, capriciousness, or arbitrariness, such a state of mind will be difficult to challenge - see for example Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 ("Eshetu") at [137].
I consider the second step is it must be demonstrated that the grounds actually relied on were reasonable grounds for that suspicion. This again involves a two-step process. Firstly, there must be a finding of fact as to what grounds were actually relied upon by any particular officer at the time and second, the critical question, involving an objective test being an evaluative judgement by the Court as to the reasonableness of that or those grounds.
There was considerable debate in submissions as to what is necessary to satisfy a Court that grounds relied on by a police officer were not reasonable. Ms Langford, who appears for the State, submitted it must be to a level where the Court is satisfied that no reasonable officer in the position of the relevant officer could have relied on those grounds to form the relevant suspicion. Thus, public law notions as explained in cases such as Eshetu at [131]-[137] have application. I do not accept that submission.
In Eshetu, Gummow J, after quoting from a number of long-standing authorities, said at [137]: "This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."
The passage to which Gummow J was referring was part of Gibbs J's judgment in Buck v Bavone (1976) 135 CLR 110, which Gummow J sets out at [136].
What his Honour was referring to, was the very high threshold imposed by the law, if what is under challenge is a requisite state of mind by a decision maker which may turn upon matters upon which reasonable minds could reasonably differ. It is that type of decision which the test of "no reasonable decision maker could have arrived at the decision in question" (previously described as "Wednesbury unreasonableness") applies.
In my opinion, it is clear from the various cases Gummow J cites leading up to that statement of principal, that his Honour was accepting and leaving to one side a situation where a state of mind was formed by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation.
Applying that analysis to ss 21 and 36 of LEPRA, it must be understood that the statutory command is that the grounds (considerations) that have to be taken into account must be "reasonable".
There have been a series of recent decisions of the Court of Appeal in New South Wales dealing with a similar, but not identical, legal test posed by s 99 of LEPRA, concerning a police officer's powers of arrest. They are AD v State of NSW [2023] NSWCA 115 ("AD"); Jankovic v Director of Public Prosecutions [2020] NSWCA 31 ("Jankovic"); and Reeves v State of NSW [2024] NSWCA 125 ("Reeves") at [108]-[124]. In Ghanem v State of New South Wales [2024] NSWDC 213, I sought to reconcile some apparent contradictions within those authorities and concluded that the suggested contradictions were an illusion.
In Reeves at [108]-[122], Bell CJ (White and Stern JJA agreeing) stated that a police officer's state of satisfaction for the purposes of s 99(1)(b) of LEPRA could be impugned only by application of the principle summarised by Basten AJA in AD at [25]-[28].
In AD at [26], Basten AJA cited his Honour's previous decision in Randall at [13] where his Honour had said (my emphasis): "Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu."
As was explained by Bell CJ in Reeves at [113], in Jankovic, White JA encapsulated the point Basten JA had made in Randall in the following terms: "The arrest is not unlawful merely because the police officer's satisfaction of that matter is not reasonable. The question rather is as to the police officer's state of mind as to whether the arrest is reasonably necessary for one of the stated purposes".
Basten AJA and White JA clearly saw a distinction between a requirement for "reasonable grounds" and a challenge to the existence of a suspicion or state of satisfaction. It is only the latter which they considered subject to the "manifestly unreasonable or arbitrary, capricious, irrational, or not bone fide" test as explained by Gummow J in Eshetu.
Nothing the Court of Appeal said in Reeves suggests any doubt as to that distinction as analysed by Basten AJA and White JA, which to my mind is entirely consistent with what Gummow J held in Eshetu.
In my judgement, the proper approach to the question of whether grounds were reasonable or not for the purpose of ss 21 and 36, is that it is an objective question for the Court to determine, the answer to which will be binary. Either the grounds constitute reasonable grounds, or they do not. 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 or misunderstood the statutory test.
This does not mean that a Judge, having concluded that a particular officer or officers held a particular suspicion, decides the matter by asking him or herself whether those particular grounds would cause the Judge to hold that suspicion. That may well be a matter about which reasonable minds may come to different conclusions. It was that approach that Hely J was considering when he said in Williams, "a Court is not entitled to substitute its own opinion on the question of the opinion of the issuing officer".
I think some of the confusion in this area comes about because the statutory test is often stated in a shorthand way as "a reasonable suspicion", as if there is one state of mind being considered. Looked at in this way, it is easy to see how one could identify the answer as being one about which reasonable minds might differ and thus, only being impeachable by the very onerous test described in cases such as Eshetu.
But to reason the matter in that way is, in my opinion, to ask the wrong question and thus get the right answer to that question but to fail to engage with the actual statutory test.
The suspicion itself does not have to be reasonable. That is not the first question. What needs to be identified is a subjective state of mind, amounting to a relevant suspicion. Once that suspicion is established the separate and distinct question of whether that suspicion is based on reasonable grounds needs to be considered. In doing so, a Judge is not deciding whether he or she would have on those particular grounds, held the same suspicion. Rather, the Judge is required to consider the grounds objectively to determine whether those grounds constitute, as a matter of law, "reasonable grounds for the suspicion". If a Court determines that those grounds were not reasonable grounds, then the officer could not lawfully reach the suspicion required by the statute, and the power was not engaged.
Even though the question of "reasonableness" involves an evaluative or normative judgement about which reasonable minds might differ for the purpose of answering the objective question posed by the statute, if a Court concludes that the grounds relied upon were not reasonable, then the result will be a finding that the power was not enlivened.
The next question is whether this question of reasonableness can be approached from a starting point that some particular ground or grounds can never amount to reasonable grounds and others can.
As Hely J explained in Williams, the question of reasonableness involves an evaluative judgement of the actual grounds relied on.
Charteris SC DCJ observed in O'Connor in relation to the power to stop and search under s 21: "I remind myself of a portion of the extract from R v Rondo, namely, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. Parliament could not have intended that if police officers were aware of a citizen's criminal record, that would mean the police officer could stop, detain and search a person at any time on the basis of a reasonable suspicion that person might have possession of stolen goods. Had Parliament had such a view, in my view, it would be easily accommodated in the legislation."
Fitzsimmons SC DCJ in Madden recorded a concession to the same effect made by the State, he said he considered that concession to be: "Entirely appropriate in circumstances where there were many cases emphasising the importance of the strict interpretation of the s 21 and 36 powers".
His Honour's reasoning for this statement was a consequence of the Courts consistently construing these provisions with a starting point of the importance placed on a subject's personal liberty and any power depriving a person of their liberty must be strictly construed - Zaravinos v State of New South Wales (2004) 62 NSWLR 58 (at [23]) per Bryson JA (Santow JA and Adams J agreeing), citing Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 (at 292 and 296) and Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (at 139); see also George v Rockett (at 110 - 111); State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (at [87]) per Callinan and Crennan JJ (Gleeson CJ and Gummow J generally agreeing); (at [16] ff) per Kirby J; Hyder v Commonwealth of Australia [2012] NSWCA 336 at [13] per McColl JA (Basten and Hoeben JJA agreeing).
None of those cases actually stand for the concession recorded by Fitzsimmons SC DCJ, that is that the mere fact a person has a prior criminal record or there are intelligence reports in respect of a person cannot constitute reasonable grounds for the requisite suspicion.
Rather, they emphasise that the sections ought be construed strictly and perhaps as narrowly as possible in favour of preserving people's civil liberties.
Madden was the subject of Appeal to the Court of Appeal (Madden Appeal), where the concession was maintained and not the subject of adverse comment by the Court.
In my opinion, both Madden and O'Connor need to be understood in the context of the facts of those cases. Whether or not a particular police officer who has formed a relevant suspicion has reasonable grounds for that suspicion can only be judged by reference to the particular grounds relied upon by the officer. It is important to record that in neither Madden nor O'Connor did the State rely only on criminal history and intelligence.
In O'Connor, the grounds relied upon were that the appellant was riding a bicycle around midnight and police knew he had convictions for dishonesty. From this (i.e. the convictions, the fact that it was midnight, and the fact that the Appellant was riding a bicycle), the police suspected the bike was stolen. Not unsurprisingly, Charteris SC DCJ found those grounds did not amount to reasonable grounds for the suspicion. It was in that factual circumstance that his Honour made the comments relied upon, which it should be noted relate only to a person's criminal record and do not deal with the closely related, but different, question of what police described as "intelligence" about particular people, with a full understanding of the details concerning each ground.
There may be situations where police intelligence is so recent, alarming, and stark that it may constitute reasonable grounds. Whether intelligence, even if there is a lot of it, will be sufficient, will always depend on a precise understanding of what that "intelligence" is.
The fact that a person has a criminal record ought not be on its own sufficient to invoke the power, otherwise every person who has a criminal record could be subject to being stopped and searched ad infinitum. However, again, there are perhaps circumstances of some criminal records so extreme and recent that they would need to be considered on their own merits.
I conclude that the proposition 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.

[14]

Consent

Consent is a defence to the relevant torts. The onus is on the State to prove consent: see Secretary, Department of Health & Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218 at [310]-[311].
What this means in the context of this case is, as Kirby P said in Anderson (referred to with approval in Director of Public Prosecutions (NSW) v Leonard (2001) 53 NSWLR 227 ("DPP v Leonard") at [46]), even if there were not reasonable grounds for an officer to form a relevant suspicion, nevertheless the search will not be illegal if the Plaintiffs consented to the search: see also Bunning v Cross (1978) 141 CLR 54 ("Bunning") at [64].
The question then becomes what is required to be established for consent to be made out as a defence. Neither Kirby P in Anderson, nor James J in DPP v Leonard explore that question.
Consent must be voluntary and, in the context of consenting to a police officer purporting to exercise a power, it must be something more than mere acquiescence to what a person believes to be another's lawful right. A person can, of course, act voluntarily, notwithstanding with reluctance: R v Bossley [2015] 2 Qd R 102 ("Bossley") at [17].
It ought go without saying that consent can be express, by words or conduct, or can be implied from all the circumstances.
Some of the authorities relied on by Ms Langford suggest that consent can be given by a person to a search by police, even if that consent is given after the person is told and understands that, if he does not give his or her consent, the police will exercise their purported powers in any event. Ms Langford submits this is the law.
This seems to me to be an odd proposition. If a person is told that whatever he or she chooses, the same outcome will follow, (sometimes referred to as "Hobson's choice"), that so called choice is illusory. As a matter of legal theory, I understand that a person can give consent to something, even though they know that regardless of their consent it will go ahead and happen anyway. However, as a matter of fact, I consider that words and conduct relied upon to prove consent very much need to be judged in the context of whether the person understands that the search will go ahead in any event. If that be a person's subjective state of mind, then words which might otherwise look like words of consent to a search, may be no more than conveying that the person understands what the officer has just told them, perhaps that they agree to cooperate in the process, or perhaps that they understand they have no choice. Because the question involves consenting to what otherwise may be unlawful acts, I consider that any ambiguity ought favour the person alleged to be consenting.
Ms Langford submits that a plaintiff can act voluntarily in consenting, notwithstanding he or she does so with reluctance or a belief that the outcome was inevitable. In support of this proposition, reliance is placed on Bunning at [64] and Bossley at [17], [29]-[30].
I am not sure those cases directly stand for that proposition. In Bossley, Dalton J said, having concluded that consent was given freely, at [30]: "I do not regard his evidence that he assumed the police had a power to look in his bag as vitiating the apparent consent he gave when he was asked initially if the police could look in his bag. I do not regard his lack of knowledge as to the law about consent searches as meaning he did not in fact consent. His will was not overborne; he decided to be co-operative."
This, it seems to me, is no more than a finding of fact in the particular circumstances.
In Bunning, Barwick CJ said at [64]: "There is, in my opinion, nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it. Of course, a fine line divides such a willingness from a willingness the product of coercive conduct: and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been "taken" to the police station."
His Honour clearly considered that consent might be coerced if it is the product of a requirement or command by someone with the apparent authority of a police officer. In such circumstances, the so-called consent would have no legal effect.
In other areas of the law, voluntary acts by people procured in circumstances where they really have no choice but to do the act, are construed as something else. I am thinking in particular about the notion of "constructive dismissal" in employment law. If a person is told that they are going to be dismissed from their employment whatever they do and then asked if they would like to resign, the law has long recognised that what actually occurs in that interaction, notwithstanding clear words of resignation, is in fact at law a dismissal. The legislation speaks in terms of a person being "forced to do so because of conduct… engaged in by his or her employer" (see s 386(1)(b) of the Fair Work Act 2009 (Cth)).
In Mohebatullah Mohazab v. Dick Smith Electronics Pty Ltd [1995] IRCA 645 (29 November 1995), the Court said: "When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative."
Of course, the context is different and is found in a statutory setting, but my point is that the law does recognise that conduct by people in circumstances where the outcome of what is about to happen is inevitable, is not necessarily seen to be what it may look like on its face.
Take as another example, a person is told that whatever they say or do, they are going to be sexually assaulted. They are then asked if they consent, and they respond affirmatively. It is hard to imagine a defence based on that consent succeeding. The consent would almost certainly be seen to be the product of coercion or duress. Yet the analogy seems sound because here, the alleged consent is to, inter alia, an assault.
I find it very hard to reconcile the notion of free consent with a factual setting where that so-called consent is given in circumstances where the thing is going to happen in any event. Whatever the theoretical legal answer to that question, in my opinion, the question can usually be resolved by determining, from all of the circumstances surrounding the words used, whether what was said actually amounted to consent. The fact that the person said to be consenting subjectively knows that the search will go ahead whatever they say, will be a powerful circumstance against which to judge the words used, as will any apparent command given by a police officer, as alluded to by Barwick CJ in Bunning at [64].

[15]

The lawful exercise of the power

Pursuant to s 202(1) of LEPRA, a police officer who exercises a power must provide the following to the person subject to the exercise of the power: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power.
Section 204A(1) of LEPRA expressly provides that a failure by a police officer to comply with an obligation to provide the name of the police officer or his or her place of duty (subs (a) and (b)) when exercising a power to which the part applies, does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power. Importantly, s 204A(1) makes no reference to the obligation of a police officer to provide the reasons for the exercise of the power (subs (c)).
Mr Canceri draws an analogy with a situation where an officer who unlawfully arrests a person is not acting in the execution of their duty: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [118]. He submitted that this principle is equally applicable to a stop and search under ss 21 and 36 which is rendered unlawful if the reason for the exercise of the power has not been given, in breach of s 202(1)(c).
There is a question of statutory construction here. Section 202(1) needs to be understood and construed so as to work harmoniously with s 204A(1), which explicitly states that a failure of an officer to comply with s 202(1)(a) and (b) will not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power.
Ms Langford put the matter in writing as follows: "28. In Hadid v New South Wales [2023] NSWDC 446, Weber DCJ commented at [43] that there was "doubt as to whether compliance with section 202 of LEPRA is a necessary precondition for the exercise of the power of arrest", referring to New South Wales v Randall [2017] NSWCA 88 (Randall) at [32] per Basten JA. … 33. Secondly, it was proposed to enact s 204A: Tink-Whelan, pp11-16. This was in response to various decisions in which Courts had found arrests to be unlawful because the officer had failed to provide his or her name and place of duty. The discussion in Tink-Whelan suggests a contemporary understanding that non-compliance with s 201 had at least the potential to invalidate the exercise of power (among other consequences). 34. However, express reference is made (at p 14) to the decision of the New South Wales Court of Appeal in Poidevin v Semaan (2013) 85 NSWLR 758 (Poidevin). … 35. Importantly, as his Honour observed at [24], the question before the Court was whether the officer was acting in the lawful exercise of his duty (and not whether he had a defence to a tortious claim). 36. Returning to Randall: The State had, in the appeal, contended that any non-compliance with s 201 was technical and did not invalidate the exercise of the power. The submission relied on the approach taken to statutory conditions expressed in mandatory terms in Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627. Ultimately, it was unnecessary to decide the question because it was not raised below (and the majority justices did not consider it). However, Basten JA made the following, pertinent observations (at [31]-[32]): "In circumstances where a statute prescribes specific matters in mandatory terms, apparently conditioning the exercise of an administrative or executive power, but does not identify the consequence of non-compliance, the effect of non-compliance must be a question of statutory construction to be determined in accordance with principles outlined in Project Blue Sky Inc v Australian Broadcasting Authority. In short, it is necessary to identify a legislative purpose in respect of invalidation, which is to be "ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition." Applying those principles, there is much to be said for the view that it would be absurd if an arrest were rendered unlawful merely because the arresting officer failed to give his or her name and station. It might also seem absurd (and therefore an unlikely construction) if a reason were not given in circumstances where the reason was obvious, and the officer had a sound basis for believing that the suspect knew the reason." … There is also authority for the proposition that, because former s 201 (current s 202) is reflective of the common law, the requirements of s 202(1)(c) will "depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what the suspected offence is": State of New South Wales v Abed (2014) 246 A Crim R 549 at [92]; compare Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 at [160]-[161] per Campbell J; see also Barram v New South Wales [2017] NSWDC 255 at [72]-[76]; Shalboub v New South Wales (2017) 27 DCLR (NSW) 36; New South Wales v McCarthy (2015) 251 A Crim R 445 at [78]-[79]. 38. The State adopts that construction and, alternatively, that suggested by Basten JA in Randall (i.e., that a de minimis breach of s 202(1)(c) does not invalidate an otherwise valid exercise of power under ss 21 or 36 of LEPRA). 39. However, it must be recognised that there is authority against the State's position: see e.g. R v Murray [2020] NSWDC 729 per Priestly SC, DCJ; R v Kershaw [2022] NSWDC 90; Carvana v State of New South Wales [2024] NSWSC 254; Murphy v State of New South Wales [2023] NSWSC 407."
I start with the statutory language as amended, the fact that s 204A(1) is silent as to s 202(1)(c), that is the requirement of an officer to tell a person the reason for the exercise of the power, to my mind very strongly supports the construction of the statute to the effect that a failure to comply with the requirements of s 202(1)(c) of LEPRA will render the exercise of a ss 21 or 36 power, which might otherwise have been based on a suspicion on reasonable grounds, unlawful and invalid, and thus any detention, battery, or interference with property will, subject to questions of consent, amount to a tort. There may be occasions where it is seen to be not practicable for an officer to say the words. Such an exception is not apparent from the words of the statute, but perhaps can be gleaned from the context and purpose of the section. That might make a difference, but as there is no suggestion of that in any of the cases before me, I do not need to consider it.
There are a number of cases which do point in different directions. However, the decisions of Wright J in Carvana v State of New South Wales [2024] NSWSC 254 and Davies J in Murphy v State of New South Wales [2023] NSWSC 407 seem to support Mr Canceri's submission.
My own view, uninstructed by the various authorities, is that the proper construction of the statute as amended almost compels the conclusion that Parliament intended that a failure to comply with s 202(1)(c) would render what might otherwise have been the lawful exercise of a power to be invalid. I think the preponderance of the authorities are consistent with this.

[16]

What criminal history and police intelligence?

The question of a person's prior criminal history and/or police intelligence amounting to reasonable grounds for a relevant suspicion under either ss 21 or 36 of LEPRA, looms large in this case, although there is actually no instance of those being the only grounds said to have been relied on.
In each and every one of the instances, I have evidence from the officers involved to the effect that, prior to forming their suspicion, they conducted searches of COPS relating to both the car and one or both of the Plaintiffs.
There is evidence, which I accept based on audits conducted on COPS, corroborating that evidence. In other words, I am satisfied that the various police officers, who gave evidence that they searched COPS relating to the car and the Plaintiffs at the time of the various interactions, did just that.
This then throws up an extremely difficult question of fact, which I consider important. What precise information in those records did any particular officer look at and take into account as part of his or her grounds? There is a veritable mountain of evidence constituting more than a folder's worth of extremely confusing, voluminous, repetitive, and hard to read information which the State has proved, to my satisfaction, was information from time to time on COPS. From that I am invited to infer the police took into account all of that information as grounds to form a suspicion.
Not all the information that was within COPS is immediately apparent to any officer who accesses the system. It is necessary, by a method of pressing buttons on the computer or mobile screen, to interrogate the information to find out more and more. For example, the information lists criminal charges, but it is necessary to press a button on each charge to find out the result of any particular charge.
Not unsurprisingly, none of the officers actually have a memory of what information they saw or what they understood from it, other than at the highest and vaguest levels to the effect that there was a history of criminal charges and intelligence and that it involved illicit drugs. So much may be accepted. The State was able to demonstrate by a "reverse audit" process, what particular areas of COPS particular officers accessed on the day. That proves that the particular command was given to the computer system and that the page opened. It does not prove it was probably read or understood. As I have said, the information contained in the various parts of COPS is voluminous, is in extremely small font, and the time that the officer spent with particular aspects of the records open on the screen is recorded in the material. Unless particular officers were extraordinarily fast readers, it is inevitable that they did no more than a quick scan of what they considered to be important information, most likely starting with the most recent events. I am left unable to determine by any sort of sensible process of inference precisely what parts of that information any particular officer took into account. I am comfortably satisfied that no officer actually read all of the information - there is simply too much detail for them to have undertaken that task in the time available. This is problematic for the State, because even though I have been persuaded by Ms Langford that a more nuanced approach than commended itself to Fitzsimmons SC DCJ in Madden or Charteris SC DCJ in O'Connor is required, in order to properly apply that nuanced approach, I need to be able to make detailed specific findings of fact as to precisely the information of criminal history and/or intelligence that was taken into account by police officers, so as to assess whether or not that information, combined with other information, amounted to reasonable grounds.
With two exceptions, I find myself unable to make such findings.
The first exception is the entry for the interaction on 6 October 2021, which is the subject of claim number 2023/214380, which I set out in full later in these reasons, was clearly seen and taken into account by the various officers who form suspicions in relation to the incidents that come after, being 3 November 2021, 25 January, and 9 February 2022. They all have memories of information that can only be from that entry. The second is a "warning" which is the first piece of information anyone searching the First Plaintiff's name would see and it is likely that the First Plaintiff's information would have been searched immediately after the search of the registration number of the motor vehicle, because the First Plaintiff is the registered owner of the motor vehicle. That warnings in the following terms: "WARNING Active thief, bust merchant, junkie, etc"
That information or "intelligence" is obviously quite alarming if read as speaking in the present tense, which is strongly suggested by the use of the word "Active". However, next to the entry is the date it was created, which is 31 October 2000, some 21 years before the events the subject of these cases.
Whilst none of the officers said they took that particular "warning" into account, a number of them said that they took "warnings" into account and it does appear to be the only relevant warning in COPS at the time. By the same token, none of the officers said that they did not take that warning into account because they noticed that it was so remarkably out of date.
It ought go without saying that I consider that the taking into account of that warning, which spoke of some other police officer's state of mind many decades earlier, could not be a reasonable ground for forming a relevant suspicion.
Apart from those two findings, I am unable to find at any level of specificity, precisely what criminal history/police intelligence was taken into account by the various officers in relation to each action with the Plaintiffs.

[19]

Findings of fact

At around midday on 26 July 2021, the First Plaintiff was driving his vehicle along Scott Street, Liverpool near the intersection of Bigge Street.
At the same time, NSW Police officers Constable Delmazio and Senior Sergeant Maher were patrolling the area as part of Operation Deadpool.
Scott Street Liverpool is, in particular near the Railway Hotel, which was directly opposite where this incident occurred, a well-known area for drug use, dealing, and related crime. Next to the Railway Hotel, is a methadone clinic.
The police officers pulled over the First Plaintiff's vehicle and performed an RBT on the First Plaintiff, which returned a negative result.
Constable Dalmazio gave evidence that he then formed a suspicion that the First Plaintiff might be in possession of illicit drugs. His reasons are consistent with the almost contemporaneous COPS event record, which he created, and were the combination of firstly, that their checks of the First Plaintiff's criminal record demonstrated a history relating to drug activity, secondly, that he saw some "capped syringes" through the windows of the First Plaintiff's car somewhere in the vicinity of the back seat, thirdly, upon questioning, the First Plaintiff admitted to previous use of drugs, and that fourth, the First Plaintiff was driving in Scott Street, which is a well-known "hot spot" for illicit drugs.
It was based on the totality of those matters that Constable Dalmazio said he suspected the First Plaintiff might be carrying drugs. Senior Sergeant Maher did not give evidence, and so did not confirm any of the evidence given by Constable Dalmazio. There is no issue that the First Plaintiff has and had a criminal history involving drug use, I also accept that he admitted to past drug use in discussion with Constable Dalmazio, but the specifics of that admission are not known. I also accept that Scott Street, near the Railway Hotel, is well known for drug-related criminal activity.
Where there is an issue is whether the capped syringes referred to in the COPS document and the evidence of the Constable Dalmazio were in fact sighted by the officers prior to them exercising their powers. I leave to one side one syringe that was found in the glovebox of the car during the search, because self-evidently that could not have been anything that was sighted through the windows of the car.
Most, but not all, of this interaction between the officers and the First Plaintiff is recorded on body worn footage. Two things are clear from that footage. First, at no point do the police officers, either before they commence purporting to exercise their powers or during, question the First Plaintiff as to any syringes in the back of the car, and secondly, even taking into account that the body worn camera is on an odd angle and therefore is not necessarily recording everything that the officer conducting the search could see, there are no syringes in the back seat at all to be seen in the video footage. Moreover, the absence of Senior Sergeant Maher from the witness box is problematic for the State on this important question of fact.
Notwithstanding that the First Plaintiff gave no evidence to the contrary and therefore I can and do comfortably infer that on the question of whether there were syringes in the car he could have given no evidence to assist his case, I think this is one of those circumstances where his case did not need assisting. I am not satisfied, taking into account all of the evidence, that there were any syringes or drug paraphernalia sighted before the relevant powers were exercised. That does not mean that I find that Constable Dalmazio was lying, rather I think he has become confused. What I think has happened at some point in the process is that there has been confusion in Constable Dalmazio's mind between the one syringe that was found in the glove box, and this has created his recollection of sighting syringes in the car before exercising the relevant powers.

[21]

Consent

It is quite clear that very early on in their interactions, which I should say were quite harmonious and respectful going both ways, that the First Plaintiff expressly consented to being personally searched, for his car to be searched, and for him to be detained for those purposes. That consent was express and was in the following terms: (00:01:30.00] - Constable Damazio [sic] Yeah, I know. It's well known to us. This is very common. Cars park out here, either buying or selling or some sort of drug activity. So I have reason to believe there may be drugs or some paraphernalia or any sort of urn related stuff in your car. [00:01 :41 .27] - Constable Damazio Yeah, that's fine man [00:01 :42.14] - Constable Damazio Also said earlier, consent to a search being made still give us consent? [00:01:45.05] - Mauricio [Reyes-Carrion] Yeah, I don't mind. You can search. [00:01:45.28] - Constable Damazio You understand you don't have to give us consent? [00:01:48.04] - Mauriclo Yeah, I know that. [00:01:48.25] - Constable Damazio Too easy. If failure to consent, I'll use other powers instead. [00:01:51.12] - Mauricio Yep, I know.
I am satisfied that the First Plaintiff, by those words, freely consented to the claimed assault and battery, and trespass to goods. The officer's tone of voice was not "commanding". The First Plaintiff's words and their tone were unequivocal, they compel the conclusion that, notwithstanding that he knew the search would occur anyway, he freely consented.
Each and every one of those torts has either, an essential element for the Plaintiff to prove that there was no consent to the impugned activity or, at the very least, is subject to a defence of consent.
Mr Canceri, as I understood him, effectively conceded consent in relation to the assault, battery, and search of the vehicle. If he did not make a concession, I find that there was consent freely given by the Plaintiff. However, Mr Canceri submits that there still remains, at least for a period of time, albeit short, a valid claim for false imprisonment. The argument goes that, even accepting that the original stop power was under the RTA RBT power, there was a point where the RBT had been administered and that power was spent. At some point before the above conversation, Constable Dalmazio had decided to use the ss 21 and 36 powers to conduct the personal search of the First Plaintiff and of his vehicle. During that period, even though nothing was said, the First Plaintiff was not free to go and was in the effective custody of the police.
As a matter of logic, those steps must have occurred in that order. In other words, after the RBT power had expired the First Plaintiff believed he was not free to go, and as a matter of fact was not free to go, even though he had not consented to that state of affairs. I accept that, but on the evidence this period prior to him consenting to the search, which implicitly carried with it a consent to wait until the process was completed, may have been nothing more than a minute or perhaps two. If that be a correct analysis, any damages flowing from that false imprisonment would be de minimis and rise no higher than nominal. As ingenious as the argument is, I consider these things have to be determined in a practical, sensible manner and I am not prepared to find any false imprisonment for that short period.
If I am wrong in that regard, I would have awarded nominal damages of no more than $100.

[23]

Damages

If I am wrong in my conclusion as to liability, I would have assessed damages extremely modestly. For the false imprisonment, the First Plaintiff seeks general damages of $1,500 and exemplary damages of $5,000, whilst the State suggests general damages of $500 with no exemplary damages. For the assault and battery (the ordinary search), the First Plaintiff suggests general damages of $1,000, with exemplary damages of $500 and the State submits that $500 general damages would be appropriate with no exemplary damages. Finally, for trespass to goods the First Plaintiff's position is $1,000 for general damages and $5,000 exemplary damages, with the State again suggesting $500 for general damages with no exemplary damages.
Notwithstanding the findings that I have made concerning the question of whether drug paraphernalia was sighted in the vehicle, I am satisfied that at the time the officer genuinely held the relevant suspicion, however the suspicion was not based on reasonable grounds. He made an evaluative judgment at the time, which I have found to be erroneous, but that does not mean he acted intentionally or recklessly in defiance of the law. In that context, I do not consider any award of exemplary damages to be appropriate. As I have said, I have viewed the footage of almost all of the interaction. It is peaceful, calm, and with respectful dialogue, bordering on friendly banter, between the parties and, in any event, it all happens in the context of what appears to be and would have appeared to the police officers at the time, full and free consent by the First Plaintiff. There is no occasion for aggravated damages.
In those circumstances, I would have awarded the First Plaintiff $1,000 for the assault and battery, $1,000 for the false imprisonment, and $100 for the claim for trespass to goods (this is nominal only as there is no suggestion of any actual damage), with no other heads of damages. In summary, if I am wrong as to liability, I would have awarded the First Plaintiff $2,100 damages.

[25]

Findings of fact

On 6 October 2021 at about 10:20pm, the First and Second Plaintiff were parked in Brennan Street Smithfield in the First Plaintiff's car. There was a third person in the rear of the car, being Frank Leota.
Constable Williams and Sergeant Kassab, who were members of the NSW Police Transport Command not involved in proactive policing, were travelling down Brennan Street when they noticed the Plaintiff's vehicle parked in what they considered to be an unusual position. That is, it was parked towards the middle of the street, which had double yellow lines running along the middle. The way the car was positioned would have prevented any other vehicle from proceeding down the street without crossing the double yellow lines.
The police officers, quite reasonably in my opinion, thought that positioning of the vehicle was out of place, and it made them suspicious enough to investigate further.
The police vehicle turned around, parked behind the Plaintiff's vehicle, and Constable Williams spoke to the First Plaintiff, who was sitting in the passenger seat. At some point, either Constable Williams or Sergeant Kassab noticed the Second Plaintiff emerge from the darkness on the footpath, get back in the vehicle, and exchange what they believe was some money with Mr Leota in the back seat.
Both Constable Williams and Sergeant Kassab gave evidence that they smelt cannabis when they approached the car. They were challenged about this in cross-examination and the video footage shows the Plaintiffs denying this. However, neither Plaintiff gave evidence to contradict the evidence of the officers in this regard, which I accept.
With assistance having been called for by the officers on the scene, Detective Sergeant Rigney arrived in a second police car prior to the search commencing and was involved in the search of one of the Plaintiffs.
Both the First and Second Plaintiff and the car were searched. There is no suggestion that either Plaintiff consented to the search in this instance, rather they protested and asserted that they were either delivering or picking up meat from the Plaintiffs' mother, who lived in the street.

[26]

Reasonable grounds

The question therefore is whether Constable Williams, who relevantly made the decision to commence the searches, and Sergeant Kassab and Detective Sergeant Rigney, who were involved in the searches, suspected on reasonable grounds that either the First or Second Plaintiff had in his possession or under his or her control a prohibited plant or a prohibited drug (s 21 of LEPRA) and that the vehicle contained, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or a prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985 (NSW).
It is accepted by the Plaintiff that the officers all held the relevant suspicion. The question becomes were the grounds for that suspicion reasonable.
Having considered the evidence of Constable Williams, Sergeant Kassab, and Detective Sergeant Rigney, together with the almost contemporaneous entry made by Constable Williams in the COPS event record, in the context that neither of the First and Second Plaintiff nor Mr Leota gave any evidence before me, I am satisfied that the combination of the location itself, which is known for drug activity, the unusual and illegal way the vehicle was parked, the perceived activities of the Second Plaintiff in handing some cash to Mr Leota, the smell of marijuana noticed by both officers, together with such limited information they probably gleaned from COPS, which at the very least would have told them of some sort of drug history, amounted to reasonable grounds for Constable Williams, Sergeant Kassab, and Detective Sergeant Rigney to suspect that both the Plaintiffs might have in their possession a prohibited drug and/or that that drug may be in the vehicle and that the officers each subjectively held the relevant suspicion based on those grounds. Detective Sergeant Rigney's opinion was largely based on what the other officers told him, together with the location. I consider that information was sufficient to constitute reasonable grounds for his suspicion.

[32]

Reasonable grounds

The real issue here (leaving to one side the brake light joke) is whether the information contained on COPS was sufficient to amount to reasonable grounds for the purpose of the statutory test.
I accept that the relevant officers held the relevant suspicion subjectively. The question concerns reasonable grounds.
What then are the specifics of what was known to the officers on this occasion?
As I have said, they were clearly armed with, and took into account, the statement in the COPS event record created on 6 October 2021, together with the "warning" from 2000, which I have already set out.
However, the 6 October statement contains an opinion by other officers that they believed that the Plaintiffs at that time had drugs in their possession. Of course, that belief proved to be wrong which fact is also disclosed in the records.
More relevantly, it discloses that two sets of scales and some strong, small magnets were located on the driver's side door, as was a balaclava. It then goes on to state that the police creating the record were of the belief that the Plaintiffs were in the area to sell drugs and that the magnets are used to be placed in containers to hide in inconspicuous locations, which caused them to create the warnings.
In other words, the "intelligence" being referred to is no more than an opinion by other officers as to their belief and the fact that the two sets of scales and magnets, together with a balaclava, had been located in the vehicle.
As far as the criminal history of the Plaintiffs is concerned, it is probable that the officers noticed the "warning" concerning the First Plaintiff to which I have already referred. If they took that into account, in my view, that would have been unreasonable because of its ancient nature. Again, there is evidence that they interrogated various portions of the information contained on COPS, but the timing is such that it is impossible to form any view other than it was no more than a quick scan and they took away from that that the Plaintiffs had a long history of criminal activity involving charges. I do not think the outcome of those charges was known to the officers. However, a close analysis of that history demonstrates that, in relation to the First Plaintiff, it had ceased many years before, and in relation to the Second Plaintiff, it had certainly diminished over time. It really is no more than the 6 October entry and a history of drug-related crime.
In my judgement, the grounds taken into account by the officers do not constitute reasonable grounds for the suspicion they formed and accordingly, the purported exercise of power by them was not lawful.

[33]

Consent

The state relies on consent in relation to this incident.
The various interactions are all recorded on the body worn video. The exchange commences with the officers asking for consent to a search whilst both Plaintiffs are still in the vehicle, which consent is expressly refused. The officers then tell the Plaintiffs that they are exercising their powers in any event and direct the Plaintiffs to get out of the vehicle. At this point, the First Plaintiff becomes somewhat agitated and starts to make it clear to the officers that he does not, and wants it recorded that he does not, consent to the search of the vehicle. He explains that this is because he considers the officers that previously searched his vehicle have left it in a messy state (or to be fair, in a messier state then the police found it, if that is at all possible). At this point, he says words to the effect "you can search me but not my car… get on with it".
The State relies on that part of the exchange to demonstrate that there was full and free consent given by both Plaintiffs.
I reject that submission. I think what really is happening in the interaction is that it starts with the First Plaintiff been told that the police are going to exercise their search powers and then expressly saying that he did not consent. It then develops into a slightly heated exchange where the First Plaintiff makes it entirely clear that he does not want his vehicle searched. In that context, he says that they can search him and invites them to "get on with it".
I consider the context of him saying that is such that he is indicating that he is prepared to cooperate with the exercise of power, which they have already told him they proposed to exercise whatever he says, and that he was not changing his position from that originally stated, which was expressly no consent. This is one of the situations where I consider the fact that he search was going to happen anyway and the First Plaintiff knew that is important context to the objective question of what the words used conveyed. In any event, I do not understand how anything the First Plaintiff said or did could convey consent by the Second Plaintiff.

[38]

Consent

In relation to the First Plaintiff, Ms Langford submits that he consented to SC Quine when SC Quine asked if he consented to his vehicle being searched and a personal search of him. He responded, "yeah that's all right".
The First Plaintiff did say to SC Quine "Yeah that's alright". That statement was said in response to the following statement by SC Quine: "… I believe there is a prohibited drug in the vehicle or on either of you. So, I'm going to subject you both to a search, do you consent to that?"
Mr Canceri submits the words used by SC Quine, especially when coupled with his office, amount to a direction or command followed up by a request that the occupants of the vehicle cooperate with the police officers.
I have reviewed the body worn footage of the exchange on a number of occasions. The question is whether the words "yeah that's all right" in their context amounted to consent to the actual searches.
I do not consider that they do. The tone by which SC Quine delivered the words "so I'm going to subject you both to a search" was emphatic, is delivered as a 'command', and leaves no doubt that, whatever the response to the question "do you consent to that?", the search would go ahead in any event.
Thus, consent was obviously irrelevant to what was going to happen next.
In that context, I consider that the words "yeah that's all right" were doing no more than conveying that the First Plaintiff understood what was about to happen and that he would cooperate in the process. I do not consider that objectively they amount to consent in a legal sense as I have described by the First Plaintiff.
Moreover, the Second Plaintiff remained silent during the exchange, and I do not think there is any basis to consider that the "yeah that's all right" statement by the First Plaintiff was said on behalf of the Second Plaintiff, or that he somehow acquiesced.
For those reasons, I do not consider that either Plaintiff consented to the relevant acts of the officers.

[39]

Reasonable grounds

I turn then to the question of whether the conduct of the officers was otherwise lawful by reference to the relevant provisions of LEPRA.
Whilst I am satisfied that both officers held the relevant statutory suspicion, I am not satisfied that suspicion was held on reasonable grounds. The basis of the officers' suspicion was, first, vague information contained on COPS concerning the vehicle relating to its history involving drug activities. Second, the fact that both the First and Second Plaintiffs made admissions to the use of prohibited drugs, being cannabis. Neither police officer gave clear evidence of such admissions, and they are not apparent on the portion of the interaction that can be seen on the body worn video. Sergeant Sheldrick did give very vague evidence of the admission, but again it entirely lacked any detail. Nonetheless, it is some evidence and neither Plaintiff gave evidence contradicting it. I accept Sergeant Sheldrick's evidence combined with the COPS report, but it is, to say the least, unpersuasive because it lacks any specificity as to the nature of the admissions, and in particular, when the admitted use of cannabis had taken place. Third, the police relied on the First and Second Plaintiff's history of drug-related activity as disclosed in COPS. Finally, the officers relied on the location, being Scott Street, a well-known drug crime area.
Dealing then with those grounds. As I have already held, there is no doubt that Scott Street is a "hot spot" for drug activity in the Liverpool area. However, there is also no doubt that there is a methadone clinic almost next door to the Railway Hotel. Accordingly, it seems to me that the mere location of Scott Street is a neutral factor, especially as the Plaintiffs were driving down Scott Street as opposed to parked. Many people in Scott Street may well have been involved in drug-related criminal activity in the past but are now visiting Scott Street for no other purpose than to attend the methadone clinic. More importantly, the car was not parked in Scott Street, but rather was driving down Scott Street. Sergeant Sheldrick gave evidence that he assumed at the time the vehicle was going to park, yet in cross-examination he conceded this was nothing more than an assumption.
Second, there was the "intelligence" and history on the COPS record relating to the Plaintiffs, to the vehicle, and some vague admissions as to past cannabis use. Without putting the various grounds into silos and performing some sort of calculus, I am not satisfied, taking into account all the information known to the officers at the time, that they had reasonable grounds for suspecting the relevant matters. It was really nothing more than a criminal record and the intelligence reports of the 6 October 2021 incident (the "warning"), together with the location, being Scott Street, and some vague admission as to previous use of cannabis.

[41]

Use of force

I should record at this stage that unfortunately the interaction between Sergeant Sheldrick and the Second Plaintiff, unlike all of the other interactions the subject of this case, did not go smoothly. Ultimately Sergeant Sheldrick saw fit as part of him conducting the personal search of the Second Plaintiff to place the Second Plaintiff in handcuffs because it is contended that the Second Plaintiff was acting aggressively and was not cooperating, in that he was not following reasonable directions of Sergeant Sheldrick, in that he declined to put his hands on the wall. The relevant interaction is all captured on body worn footage.
It is clear that the Second Plaintiff did ignore that direction and instead said to Sergeant Sheldrick "arrest me" and later said "search me, get it over and done with", at which point Sergeant Sheldrick placed him in handcuffs.
Sergeant Sheldrick was at the time and remains a very senior and experienced officer. He had the clearest understanding of the notion of "proactive policing" of any of the police witnesses and a much firmer grasp of the interaction between, and difficulties for, police officers in applying the various provisions of LEPRA and the powers to stop vehicles under the RTA when involved in proactive policing, than any of the other witnesses.
He has been involved in many interactions with the public over the years and has been, from time to time, assaulted by people when conducting searches on them. I accept completely that Sergeant Sheldrick is entitled, as all police officers are, to take reasonable steps to protect their own safety when performing their duties.
However, having reviewed the body worn footage on a number of occasions, what I think happened between Sergeant Sheldrick and the Second Plaintiff was that firstly, the Second Plaintiff was not happy about being stopped and searched. He quite reasonably pointed out to the police that this was happening "all the time". Second, whilst he was irritated and perhaps a little angry, he at no time acted in any way aggressively towards any police officer. Third, he very clearly acquiesced to being subjected to a body search by Sergeant Sheldrick. Fourth, what he objected to was being told to put his hands on the wall to allow that search to take place. He told Sergeant Sheldrick that he thought that was embarrassing. The words he used were "people drive past, I look stupid". Fifth, there is a point where he stands in the street with his arms open and says to Sergeant Sheldrick, "search me", whilst at the same time continuing to refuse to put his hands on the wall. Sixth, at that point, Sergeant Sheldrick roughly handled the Second Plaintiff and placed him in handcuffs. Sergeant Sheldrick then tells the Second Plaintiff "that'll look stupider, won't it?"
There are two questions, did the use of force involving the handcuffs involve Sergeant Sheldrick overstepping his powers (even if he was properly exercising powers, which I have found he was not) and/or does the treatment of the Second Plaintiff by Sergeant Sheldrick in public view justify aggravated or exemplary damages or both.
Section 30 of LEPRA expressly provides that, in conducting the search of a person, a police officer may "quickly run his or her hands over the person's outer clothing…" and "do any other thing authorised by this Act for the purpose of the search".
Section 30 does not include any express provision for a police officer to give directions to a person, so as to allow the officer to exercise his or her powers in accordance with s 30.
I consider such a power is implicit in the legislation. In other words, I consider a police officer, when exercising a personal search pursuant to a lawful exercise of power under s 21 of LEPRA, notwithstanding the prescriptive nature of s 30, does have a 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.
Sergeant Sheldrick gave evidence that, in his considerable experience as a police officer, the safest and best method from the officer's point of view to conduct a personal search is to firstly, have the person being searched facing away from the officer and secondly, to have them place their hands on a wall.
I respect and accept Sergeant Sheldrick's experience in this regard and accept that police officers are entitled to take reasonable steps to protect their own safety when carrying out their onerous duty and consider that the direction he gave to the Second Plaintiff was a reasonable direction.
The Second Plaintiff said to Sergeant Sheldrick that the reason he did not want to put his hands up against the wall was two-fold. Firstly, that he was prepared to be searched and would not resist (this he conveyed implicitly by all of his words and conduct) and secondly, that he felt putting his hands up against the wall was embarrassing in the sense that he felt he would "look stupid".
It is to be remembered that Scott Street is a significant thoroughfare, there were plenty of people around at the time, and I can well understand why the Second Plaintiff considered to be searched in that way to be embarrassing and that he would "look stupid".
Section 32 of LEPRA provides, in part, as follows: "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. … (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…"
There is a question here as to whether Sergeant Sheldrick ought to have offered the Second Plaintiff to go into a quieter side street for the search to continue. He did not do that, rather he immediately placed the Second Plaintiff in handcuffs and said words to the effect that "that'll look stupider, won't it?".
Section 230 of LEPRA provides it is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual thing and anyone helping the police officer to use such force as is reasonably necessary to exercise the function. Of course, this question really falls away because I have found that Sergeant Sheldrick was not exercising a lawful function.
The justification by Sergeant Sheldrick for the requirement that the Second Plaintiff put his hands on the wall, so that Sergeant Sheldrick could lightly pat down his clothing, was a concern Sergeant Sheldrick held for his own safety. Whilst, with the benefit of hindsight and the luxury of being able to review a video on a number of occasions, I think Sergeant Sheldrick may have been being a little overly cautious at the time and I do consider the way he conducted the search to have been extremely heavy-handed, I accept his explanation as to the use of handcuffs in the circumstances. I do not think that conduct amounts to a separate and specific tort, but the fact is it occurred, was embarrassing and rough, and I have taken it into account when assessing general damages for the Second Plaintiff. I do not think it justifies any exemplary or aggravated damages because I accept that, at the time in the "heat of the moment", Sergeant Sheldrick honestly and reasonably considered what he was doing was appropriate.

[43]

The other officers involved

At some point after both Plaintiffs had been asked to get out of the car and were on the footpath by Sergeant Sheldrick, who had formed a relevant suspicion and was proposing to conduct a search, Constable Fidow arrived on scene assisted by Probationary Constable Koro.
Both of those officers gave evidence before me to the effect that they formed a reasonable suspicion in accordance with LEPRA. Constable Fidow's grounds were based on what she first described as a "Crimestoppers Report", but I think is much more likely to be the COPS event report of the October incident, her earlier interactions with the Plaintiffs on the incident that occurred on 23 November 2021, and the fact that Scott Street was a "hot spot" for drug activity.
In other words, it was the same ground(s) relied upon by Sergeant Sheldrick.
For the same reasons, I have concluded that those grounds were not reasonable grounds, in relation to Sergeant Sheldrick I make the same finding as to Constable Fidow.
It was actually Probationary Constable Koro who performed the search on the First Plaintiff. He gave evidence before me at the highest and vaguest level and, whilst commendable for his honesty, was able to say nothing more than he remembers some discussion with Constable Fidow where she explained the legal requirements on police when conducting searches and how the legislation worked. Probationary Constable Koro says that he remembers forming a suspicion but cannot remember what the grounds were.
I think the most likely thing that happened here is that Constable Fidow told Probationary Constable Koro what her opinion was and probably explained to him her reasoning, which I have concluded was not based on reasonable grounds.
Accordingly, if it was necessary for Probationary Constable Koro to form his own opinion, rather than conducting a search under the supervision of another officer who had formed the opinion, I do not think Probationary Constable Koro had reasonable grounds because those grounds rise no higher than Constable Fidow's opinion.

[45]

Findings of fact

On 9 February 2022 at about 12:20pm, the First Plaintiff was again driving his own vehicle along Anderson Avenue, Mount Prichard. Again, the Second Plaintiff was in the passenger seat.
Senior Constable Storey and Constable Deith were driving the other way down the road, identified the vehicle, and determined to stop it for a random drug and breath test of the driver.
This they did. Whilst the random drug and breath test was being administered on the First Plaintiff by SC Storey, Constable Deith ran a check of the vehicle and its owner (being the First Plaintiff), which disclosed the same intelligence from the earlier COPS event record to which I have referred. I am satisfied the "warning", and the 6 October event were noticed and taken into account. I am unable to make any finding as to what other information they took into account.
Constable Deith brought the information to SC Storey's attention and he formed an opinion based on that intelligence and warnings, together with a discussion he had with the Second Plaintiff where the Second Plaintiff admitted to him that he had used marijuana and heroin in the past but was on the methadone program and that, whilst he had some slipups in staying off drugs, said "I'm not going to lie I have, compared to how I was it's like 90% better".
SC Storey also gave evidence that the car was in a very messy state, which in his experience, combined with other information he had, can be an indication of there being drugs in the vehicle.
Constable Deith gave evidence consistent with the above, other than the messy state of the vehicle. She did not conduct any of the relevant searches, the subject of this incident, and did not give any evidence that she held a relevant suspicion.
The State concedes that, at no point in this interaction, did either officer comply with the provisions of ss 202 and 204A, in that, at no time did they state to either Plaintiff that they had a reasonable suspicion and were proposing to exercise their purported powers under ss 21 and 36 of LEPRA.
For reasons I have already explained at paragraphs [86] to [93] of this judgment, I consider that failure means that, even if there was otherwise a proper basis to exercise the power, it was exercised unlawfully.
The State contends, in relation to this incident, that there was consent.
There are no express words of consent relied upon, rather the submission is based on an implied consent by reference to all of the relevant conduct at the time.
The interaction is, again, extremely friendly, courteous, light-hearted, and cooperative.
It is in the following terms: "[00:01:34.23] - Police Officer I All right. Is there any drugs on you guys are in the car? [00:01:37.04] - Police Officer I No. [00:01:37.26] - Police Officer I All right. Do you just want to jump out? We'll give the car a quick search while we're waiting for this drug white [sic]. I'll just do you one at a time. [00:01:47.15] - Speaker I Yeah, that's all right. [00:01:49.26] - Police Officer I I'll do you first, Roberto. Where are you? Yeah, I'll take your wallet. I'll just do your pockets. No sharps or anything? [00:01 :56.10] - Roberto Nup. [00:01 :59.04] - Roberto You use a heaps nicer than the last time we got pulled over. [00:02:02.00] - Police Officer I Are we?"
It is reasonably clear to me that the Plaintiffs (who, by this stage, are well aware of the "drill" by having been searched about six times in the last six months) understand that the police intend to conduct a search and, are asked to get out of the car to allow that to happen, the agreement by the words "Yeah, that's alright", is, in my opinion, a response to the request to get out of the car, not to the search itself.
In all the circumstances, I do not think that conduct can be seen as anything more than cooperation by them in a process which they know is going to happen in any event, rather than express consent to what might otherwise be an unlawful tort on their bodies and possessions.
The question of whether there was a proper exercise of power under LEPRA is irrelevant if I am correct in my analysis of the failure to comply with s 204A, but I will deal with it shortly.
Again, I accept that the officers held a relevant suspicion.
The grounds relied upon were as follows: 1. The intelligence they gleaned from accessing COPS. This included the warning which I have set out earlier and the entry concerning the 6 October 2021 event. I am not in a position to find that they noticed anything more specific than those entries, other than there were lots of entries relating to the vehicle and the Plaintiffs; 2. An admission by the Second Plaintiff that he had used heroin in the past, but that he was now clean and taking part in the methadone program, to which he added that, despite some slipups, he was overall quote "90% better". 3. That the car was in a messy state which indicated to the officers a likelihood of drug use; and 4. The location, which again was said to be well known for drug use.
As to the admission of past drug use, that really took the matter no further because the most cursory glance at the Plaintiffs' records did demonstrate past use of illicit drugs, albeit many years ago.
That then leaves the intelligence "warning", the admission by the Second Plaintiff that he is on a methadone program and has had some slipups but is 90% better, and the fact that the car was in a messy state and that it was pulled over in an area known for illicit drug trade.

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Cases Cited (45)