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

Services v JWB & SMB (Marion's case) (1992) 175 CLR 218 Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 Williams v Keelty (2001) 111 FCRJ; [2001] FCA 1301 Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 Zaravinos v State of New South Wales (2004) 62 NSWLR 58 Category: Principal judgment Parties: Mauricio Reyes-Carrion (Plaintiff 1) Roberto Reyes (Plaintiff 2) State of New South Wales (Defendant) Representation: Counsel: A Canceri (Plaintiffs) C Langford (Defendant)

Solicitors: Aussie Lawyers (Plaintiffs) Makinson d'Apice (Defendant) File Number(s): 2023/262342; 2023/214380; 2023/216174; 2023/217456; 2023/163355 Publication restriction: Nil

Introduction

1. On six occasions between 26 July 2021 and 9 February 2022 at various locations in the Western Suburbs of Sydney, Mauricio Reyes-Carrion ("the First Plaintiff") was driving his motor vehicle. On the first occasion he was on his own and the next five times, his brother, Roberto Reyes ("the Second Plaintiff") was in the passenger seat. On each occasion, he was stopped, personally searched, detained, and his motor vehicle searched by various officers of the NSW Police. None of those searches resulted in any charges, and each time the Plaintiff(s) were sent on their way.
2. The incidents, which I shall refer to by date, occurred on 26 July 2021, 6 October 2021, 7 October 2021, 23 November 2021, 25 January 2022, and 9 February 2022. With one exception, different police officers were involved in each incident, albeit the incidents do bear remarkable similarities.
3. By six separate Statements of Claim, the Plaintiff(s) claim damages from the State of New South Wales in relation to the incidents, alleging in essence that they constituted a series of assaults/batteries, false imprisonments, and unauthorised interference with property for which the State is vicariously liable.

The issues

1. The State accepts that it is vicariously liable for any tortious liability of the various officers, but defends each of the claims, alleging that the power conferred on officers pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), insofar as stopping, searching, and detaining of people is concerned, was engaged and/or the power conferred by s 36 of LEPRA, concerning the searching of vehicles, was engaged. This is because it is submitted that the various officers at the relevant time suspected on reasonable grounds that the Plaintiff(s) had in their possession or under their control in the car a prohibited plant or prohibited drug.
2. The State also defends some of the claims in whole or in part because it contends that the relevant Plaintiff consented to the impugned activity and therefore, whether or not the officers had power under either s 21 or 36 of LEPRA, or both, becomes irrelevant because the Plaintiff's claim, based on the various torts identified, is defeated because of consent by the Plaintiff(s).
3. On the morning of the first day of this hearing, the parties handed up consent orders in relation to the incident which occurred on 7 October 2021, being proceedings number 2023/263665, to the effect that orders were made dismissing those proceedings with no order as to costs. The hearing and these reasons concern the other five events.

Some preliminary observations

1. There are a number of overarching matters and common themes I will deal with first. I will then consider each claim separately.

Proactive policing

1. 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".
2. 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.
3. 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.

What can or cannot constitute "reasonable grounds"?

1. 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.
2. 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.

The use of the random breath test power

1. 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").
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Reasonable Force?

1. Finally, the interaction between one officer and the Second Plaintiff on the 25 January 2022, involving the use of handcuffs, was, when analysed with the benefit of hindsight, unfortunate. Police do need to be cautious that, if individuals are being subjected to repeated searches by police, they are liable to, and it should be expected that they may, become irritated by the process. I regret to say that, as to the 25 January 2022 incident, there was a use of force, which I consider was heavy handed.

The common issues

1. There are a series of common issues across the five matters with which I am dealing. They are: 1. Did the relevant officers hold a relevant suspicion on reasonable grounds, so as to enliven their powers under either ss 21 or 36 of LEPRA? 2. If so, was that power exercised lawfully? 3. If the power did not exist and/or was not exercised lawfully, does the State have an answer to the various claims in tort by virtue of the consent of the relevant Plaintiff at the time?
2. In so far as those questions pose legal issues, I will deal with them first.

The Statutory regime

1. 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, …
2. 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. …
3. 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.

Suspicion

1. Both ss 21 and 36 of LEPRA require there to be demonstrated a subjective state of mind of the relevant officer that he or she held a relevant suspicion.
2. A suspicion involves less than a reasonable belief but more than a possibility. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence, some factual basis for the suspicion must exist, although it can be based on material which might not be admissible as evidence in Court, but that information must still be seen to have some probative value: see George v Rockett (1990) 170 CLR 104 ("George v Rockett") at [116]; and Ruddock v Taylor (2005) 222 CLR 612 at [633]-[637].
3. It is not suggested by the Plaintiffs that any of the officers did not subjectively and honestly suspect that the Plaintiffs and/or the car might have on them prohibited drugs.
4. That concession was well-made. On the evidence, I am comfortably satisfied that each and every officer honestly held a relevant suspicion.

Reasonable grounds

1. 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.
2. 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].
3. 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."
4. 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.
5. 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].

Consent

1. 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].
2. 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].
3. 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.
4. 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].
5. It ought go without saying that consent can be express, by words or conduct, or can be implied from all the circumstances.
6. 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.
7. 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.

The lawful exercise of the power

1. 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.
2. 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)).
3. 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).
4. 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.
5. 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."

What criminal history and police intelligence?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The incidents/cases

1. Turning then to the various incidents and claims.

26 July 2021 - Proceeding number 2023/262342 - First Scott Street

Findings of fact

1. At around midday on 26 July 2021, the First Plaintiff was driving his vehicle along Scott Street, Liverpool near the intersection of Bigge Street.
2. At the same time, NSW Police officers Constable Delmazio and Senior Sergeant Maher were patrolling the area as part of Operation Deadpool.
3. 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.
4. The police officers pulled over the First Plaintiff's vehicle and performed an RBT on the First Plaintiff, which returned a negative result.
5. 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.
6. 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.
7. 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.

Reasonable grounds

1. I accept that Constable Dalmazio did honestly suspect that the First Plaintiff was in possession of illicit drugs. I do not consider that suspicion was based on reasonable grounds because those grounds boil down to the fact of the First Plaintiff's criminal history and the "intelligence" such as it might have been viewed by Constable Dalmazio, including the "warning" from 2000, and where he was located (which on the one hand is a known drug trade area, but on the other hand is directly across the road from the methadone clinic).
2. Whilst every case will turn on its own facts and there are no hard and fast rules, in the absence of any sighting of drug paraphernalia in the car, I do not consider those to amount to reasonable grounds for the purpose of the statute.
3. However, that is not the end of the case.

Consent

1. 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.
2. 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.
3. 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.
4. 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.

Resolution

1. For those reasons, in my opinion, notwithstanding that the powers conferred by ss 21 and 36 of LEPRA were not engaged in relation to the events of 26 July 2021, the First Plaintiff's claim for damages for the various torts alleged fails for the reason that the First Plaintiff freely consented to the conduct, the subject of the claim.
2. Accordingly, I propose to make orders dismissing proceeding number 2023/262342.

Damages

1. 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.
2. 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.
3. 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.

6 October 2021 - Proceeding number 2023/214380 - Brennan Street

Findings of fact

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Reasonable grounds

1. 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).
2. It is accepted by the Plaintiff that the officers all held the relevant suspicion. The question becomes were the grounds for that suspicion reasonable.
3. 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.

Resolution

1. I am satisfied that both Constable Williams and Sergeant Kassab subjectively suspected that both Plaintiffs and the vehicle might contain illicit drugs on the basis of the findings I have set out above and also am satisfied that subjective opinion was based on reasonable grounds.
2. It follows that the various torts upon which they sue are defeated by virtue of the fact that the police officers were exercising lawful powers pursuant to ss 21 and/or 36 of LEPRA.

Damages

1. Lest I be wrong in relation to liability, I would have assessed damages modestly.
2. The Plaintiffs seek general damages for false imprisonment of $1,500 each, assault and battery for the personal searches of $2,000 each, and the First Plaintiff seeks general damages of $1,000.
3. The State accepts that $1,500 would be an appropriate award for the false imprisonment but suggests, in relation to the assault and battery and trespass to goods, $500 is more appropriate.
4. The Plaintiffs seek exemplary damages but again, in the circumstances, I do not think, even if I am wrong as to liability, that the officers were doing anything other than acting honestly and reasonably. If it be determined that the grounds upon which they formed their suspicion were unreasonable, I do not think that such an error would justify any award for exemplary damages. As far as aggravated damages are concerned, again the Plaintiffs press for same, but again it is clear from the video that the interaction occurred in a quiet street, late at night, with no one else around, and as with the first incident, the dealings between the police officers and the occupants of the car are respectful and measured going both ways. I would not allow any amount for aggravated damages.
5. Accordingly, in relation to each Plaintiff, I would have awarded general damages for false imprisonment of $1,500 each, general damages for assault and battery of $1,000 each, and in relation to the First Plaintiff and the trespass to his goods being the search of his vehicle, I would allow $100 nominal damages. That is a total of $2,600 for the First Plaintiff and $2,500 for the Second Plaintiff.

The 6 October COPS entry

1. Before leaving this matter, it is appropriate to record that part of the information contained in the COPS record created in relation to this incident includes the following: "Police activated BMV and informed the occupants that the VOI and POI's would be detained for the purpose of a search as it was believed they had illegal drugs in their possession. Whilst searching the vehicle, 2 sets of scales and a bundle of strong small magnets were located in the drivers side door. In the rear of the vehicle was a balaclava, which the driver stated it was his beanie for winter which he no longer uses. When further questioning the occupants of the vehicle, POI stated he was also just in the area to pickup POI3, however would not state where from. Police are of the belief that the POI's are in the area to sell drugs and that the magnets are used to be placed in containers to hide in inconspicuous locations. Warning created on VOI and intel created to link POI's, VOI, LOI and times."
2. I accept the evidence that, during the search, two sets of scales and a bundle of strong, small magnets were located in the car, together with a balaclava. However, none of this is relevant to the officers' state of mind at the time they exercised their powers. The more important point is that the above entry was entered into the COPS record, which becomes relevant to the later incidents because the various officers involved thereafter had access to that information, including the opinion of the officers as the "intelligence" relating to the Plaintiffs in the vehicle which they took into account when they formed their states of mind.

23 November 2021 - Proceeding number 2023/216174 - Bowden Street

Findings of fact

1. The First and Second Plaintiffs were again driving in the First Plaintiff's car, this time along Bowden Street, Cabramatta.
2. Senior Constable Fidow and Leading Senior Constable Martyn, who were involved in proactive policing on the day, were conducting patrols and noticed the vehicle and pulled it over for the purpose of a random breath and drug test.
3. During the process, COPS was interrogated which disclosed "intelligence" on the Plaintiffs concerning drug use, warnings on the vehicle about a metal box used for drug concealment, and information identifying that drug paraphernalia, namely scales, had previously been located in the vehicle.
4. That information quite clearly included the information contained in the COPS event record created on 6 October 2021 concerning the incident on that date which I have already set out. What other information was taken into account by the officers is not known, although I think it likely the "warning" was noticed.
5. It is that information upon which a suspicion was formed by Fidow and Martyn pursuant to ss 21 and 36 of LEPRA. I accept such a suspicion was honestly held.
6. Later on in the interaction, which like most of the others was entirely courteous, cooperative, and polite going both ways, and included quite a large degree of light-hearted banter from the Plaintiffs, a Constable Cini arrived and one of the Plaintiffs said to him that, if the police were interested in finding drugs, he should look behind the rear right-hand tail-light of the car, as there were plenty of drugs there.
7. Constable Cini suspected this had been said in jest, which turned out to be the case, because, not unreasonably, Constable Cini, based on that statement, formed the relevant suspicion pursuant to s 36 of LEPRA. It is not suggested that suspicion was not on reasonable grounds. He then unscrewed the tail-light and failed to find drugs, which not only the Plaintiffs, but also some of the police officers, found quite amusing.

Reasonable grounds

1. 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.
2. I accept that the relevant officers held the relevant suspicion subjectively. The question concerns reasonable grounds.
3. What then are the specifics of what was known to the officers on this occasion?
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Consent

1. The state relies on consent in relation to this incident.
2. 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".
3. The State relies on that part of the exchange to demonstrate that there was full and free consent given by both Plaintiffs.
4. 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".
5. 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.

Resolution

1. For those reasons I have concluded that the purported exercise of the stop and search powers on both Plaintiffs and the First Plaintiff's car was unlawful because there was no consent by either Plaintiff to what would otherwise be the tortious acts of the various officers.

Damages

1. The Plaintiffs were effectively in the custody of the police for about 14 minutes.
2. During that time, they were both searched, which involved the touching of each of them by officers.
3. Whilst both Plaintiffs became a little irritated during this incident, their anger/distress was more directed to them not wanting their car made messy and the hamburgers they had in the car getting cold. They were certainly not distressed as to the personal searches or the actual period of detention.
4. In those circumstances, I award both Plaintiffs $1,000 general damages for false imprisonment.
5. I award $1,000 general damages to both Plaintiffs for the personal searches.
6. As far as the trespass to goods is concerned, again there is no evidence of any damage to any property of the First Plaintiff or anyone else. Accordingly, I award nominal damages of $100 to the First Plaintiff.
7. I reject the Plaintiffs' claim for aggravated damages or exemplary damages. Notwithstanding the findings I have made as to the lack of power, it was the consequence of an honest mistake by the officers and was certainly not done in conscious disregard of the law, and overall, the interactions between the officers and the Plaintiffs were innocuous, benign, and respectful. The interaction became positively friendly once the officers gave the Plaintiffs their hamburgers, which they were very concerned would get cold during the search.
8. For those reasons, I find in favour of the Plaintiffs and award the First Plaintiff a total of $2,100 damages and the Second Plaintiff a total of $2,000 damages.

25 January 2022 - Proceeding number 2023/217456 - Second Scott Street

Findings of fact

1. On 25 January 2022 at about 7:25am, the First Plaintiff was driving his vehicle down Scott Street, Liverpool with the Second Plaintiff in the front passenger seat.
2. He was pulled over by Senior Constable ("SC") Quine and Sergeant Sheldrick, who were part of the Proactive Crime Team, for the apparent purpose of an RBT. Whilst conducting the breath test, which the First Plaintiff passed, checks were run on the identity of the First and Second Plaintiffs and as to the vehicle, which aroused suspicions in the minds of both SC Quine and Sergeant Sheldrick.

Consent

1. 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".
2. 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?"
3. 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.
4. 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.
5. 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.
6. Thus, consent was obviously irrelevant to what was going to happen next.
7. 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.
8. 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.
9. For those reasons, I do not consider that either Plaintiff consented to the relevant acts of the officers.

Reasonable grounds

1. I turn then to the question of whether the conduct of the officers was otherwise lawful by reference to the relevant provisions of LEPRA.
2. 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.
3. 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.
4. 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.

Resolution

1. I do not consider the combination of those factors to constitute reasonable grounds for the suspicion.
2. What follows from that finding is that, in relation to both Plaintiffs, the assault and battery, trespass to goods and false imprisonment alleged have been made out because the police did not have the ability to rely on their statutory power to stop and search.

Use of force

1. 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.
2. 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.
3. 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.
4. 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.
5. 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?"

Damages

1. Accordingly, I have concluded that the Second Plaintiff is entitled to damages, which I assess at $4,000 for the assault and battery, taking into account the handcuffing and pushing and shoving involved, and $1,000 for the false imprisonment, being a total judgment sum of $5,000.
2. As far as the First Plaintiff, I award $1,000 for the assault and battery, $1,000 for false imprisonment, and $100 nominal damages for trespass to goods, a total of $2,100.
3. As I have said, I do not think the conduct is such to justify any award of aggravated or exemplary damages. Notwithstanding that I have come to the view that the suspicion held by the officers was not based on reasonable grounds at the time, they however thought they were acting within power. Sergeant Sheldrick considered he was acting appropriately with the use of the handcuffs.

The other officers involved

1. 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.
2. 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.
3. In other words, it was the same ground(s) relied upon by Sergeant Sheldrick.
4. 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.
5. 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.
6. 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.
7. 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.

9 February 2022 - Proceeding number 2023/163355 - Anderson Avenue

Findings of fact

1. 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.
2. 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.
3. 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.
4. 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".
5. 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.
6. 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.
7. 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.
8. 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.
9. The State contends, in relation to this incident, that there was consent.

Resolution

1. I do not consider the combined effect of that information to amount to reasonable grounds and therefore consider the activities of the officers at the time to be to have been unlawful.

Damages

1. This is probably the friendliest interaction of them all.
2. The Plaintiffs were detained for about nine minutes.
3. I allow each of them $500 general damages for that false imprisonment.
4. I allow $1,000 for the battery and assault, and nominal damages of $100 to the First Plaintiff for the interference with the personal property, which again there is no suggestion was affected any damage.
5. I do not think there are any circumstances to justify the aggravated or exemplary damages claimed.
6. Accordingly, in relation to this incident, I award the First Plaintiff a total of $1,600 damages and the Second Plaintiff $1,500.

Conclusion: Orders

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

Proceeding Number 2023/262342: 1. The Plaintiff's claim is dismissed. 2. Judgment for the Defendant.

Proceeding Number 2023/214380: 1. The First and Second Plaintiffs' claim are dismissed. 2. Judgment for the Defendant.

Proceeding Number 2023/216174: 1. Judgment for the First and Second Plaintiff. 2. I award the First Plaintiff damages in the amount of $2,564.94, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 3. I award the Second Plaintiff damages in the amount of $2,442.80, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

Proceeding Number 2023/217456: 1. Judgment for the First and Second Plaintiff. 2. I award the First Plaintiff damages in the amount of $2,550.08, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 3. I award the Second Plaintiff damages in the amount of $6,071.62, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

Proceeding Number 2023/163355: 1. Judgment for the First and Second Plaintiff. 2. I award the First Plaintiff damages in the amount of $1,940.22, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 3. I award the Second Plaintiff damages in the amount of $1,818.96, inclusive of interest at the Court rates up to and including the date of this judgment, pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

Costs and interest

1. In each of the matters: 1. I will hear the Parties on the question of costs at 10:00am 28 February 2025. 2. I will ask the parties to check my interest calculations which are at Court pre-judgment rates from the day after each incident up until today. Any errors in arithmetic can be corrected under the slip rule on 28 February 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2025