Citation: Reyes-Carrion v State of New South Wales [2025] NSWDC 28
Court: District Court of New South Wales
Date: 25 February 2025
Judge: Newlinds SC DCJ
Background
Between July 2021 and February 2022, two brothers (referred to here as the first plaintiff and the second plaintiff) were stopped, searched, detained, and had their vehicle searched by NSW Police on six separate occasions while driving in Sydney's western suburbs. The officers involved were largely engaged in "proactive policing" operations targeting drug crime in the area. None of the stops resulted in charges, and the plaintiffs were released each time.
The plaintiffs brought six separate proceedings against the State of New South Wales, alleging the searches constituted assault and battery, false imprisonment, and trespass to goods. One proceeding (7 October 2021) was resolved by consent orders dismissing it before the hearing concluded. The remaining five incidents were the subject of this judgment.
The State accepted vicarious liability for any tortious conduct by the officers but defended each claim on the basis that the powers to stop, search, and detain under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) were lawfully engaged, and that the plaintiffs had in any event consented to some of the searches.
Legal Issues
- Whether the police officers held a suspicion on "reasonable grounds" sufficient to engage the stop-and-search powers under ss 21 and 36 of LEPRA (which authorise personal searches and vehicle searches respectively where an officer suspects on reasonable grounds that a person possesses a prohibited drug or plant)
- Whether the plaintiffs consented to the searches, and if so, whether that consent was valid given the context of an apparent police direction or command
- Whether s 204A of LEPRA (which contains procedural protections for the exercise of police powers) was complied with
- Whether aggravated or exemplary damages were warranted
Decision
Reasonable grounds for suspicion. The court examined what can and cannot constitute "reasonable grounds" for suspicion under ss 21 and 36 of LEPRA. Newlinds SC DCJ found that a combination of factors commonly relied upon by the officers, namely the plaintiffs' criminal history, the fact that the area was known for drug crime, and prior searches recorded in the NSW Police database (COPS), will rarely if ever suffice. The court expressed particular concern about a "snowball effect," where earlier recorded suspicions by police officers are simply adopted by subsequent officers to justify further searches, risking those opinions becoming self-fulfilling. On the facts of each incident, the court assessed individually whether the officers' stated grounds met the objective statutory threshold.
Consent. The State argued that in some incidents the plaintiffs had consented to the searches, rendering the question of statutory power moot. The court was sceptical of consent given in circumstances where an officer's direction or command effectively signals that the search will proceed regardless. On the facts, consent was found to defeat certain claims where the court was satisfied it was genuinely voluntary, but not across the board.
Outcomes by incident. Three of the five proceedings resulted in judgment for the plaintiffs. The court awarded modest general damages reflecting the relatively brief nature of each unlawful detention and search. The claim for aggravated or exemplary damages was rejected across all incidents, the court finding no circumstances justifying an uplift beyond ordinary general damages.
Proactive policing and statutory limits. The court observed that proactive policing is a legitimate and commendable policing strategy, but that it creates an inherent tension with the statutory prerequisites for stop-and-search powers. The judgment emphasised that individual officers must be satisfied they hold a genuine suspicion based on objectively reasonable grounds before exercising powers that represent a significant intrusion on personal liberty.
Orders Made
- Proceeding 2023/262342: Plaintiff's claim dismissed. Judgment for the defendant.
- Proceeding 2023/214380: First and second plaintiffs' claims dismissed. Judgment for the defendant.
- Proceeding 2023/216174: Judgment for the first and second plaintiffs. First plaintiff awarded $2,564.94 (inclusive of interest); second plaintiff awarded $2,442.80 (inclusive of interest).
- Proceeding 2023/217456: Judgment for the first and second plaintiffs. First plaintiff awarded $2,550.08 (inclusive of interest); second plaintiff awarded $6,071.62 (inclusive of interest).
- Proceeding 2023/163355: Judgment for the first and second plaintiffs. First plaintiff awarded $1,940.22 (inclusive of interest); second plaintiff awarded $1,818.96 (inclusive of interest).
- Costs reserved; parties to be heard on 28 February 2025.
Key Takeaways
- Under ss 21 and 36 of LEPRA, the requirement that an officer suspect "on reasonable grounds" is an objective test: a genuine subjective belief, however honestly held, does not satisfy it if the underlying grounds are insufficient as a matter of law.
- A person's criminal history, their presence in a high-crime area, and prior police searches recorded on the COPS database will, in the District Court's analysis, rarely if ever individually or in combination constitute reasonable grounds for suspicion absent something more specific connecting the individual to current suspected criminal activity.
- The "snowball effect" risk, where prior police suspicions feed subsequent ones without any fresh basis, was identified as a particular concern that can undermine the lawfulness of repeated searches.
- Consent to a search may defeat a torts claim, but the District Court applied close scrutiny to whether consent given in the face of an apparent police command or direction was truly voluntary.
- No aggravated or exemplary damages were awarded; general damages for the successful claims were modest, reflecting the brief duration of each unlawful interference with the plaintiffs' liberty and property.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 30, 36, 202, 204A
- Drug Misuse and Trafficking Act 1985 (NSW)
- Road Transport Act 2013 (NSW), Schedule 3, cl 3
- Civil Procedure Act 2005 (NSW), s 100
Cases
- AD v State of NSW [2023] NSWCA 115
- Carvana v State of New South Wales [2024] NSWSC 254
- George v Rockett (1990) 170 CLR 104
- Ghanem v State of New South Wales [2024] NSWDC 213
- Hrdavec v New South Wales [2022] NSWCA 52
- Hyder v Commonwealth of Australia [2012] NSWCA 336
- Jankovic v Director of Public Prosecutions [2020] NSWCA 31
- Madden v State of New South Wales [2022] NSWDC 647 (and Court of Appeal, [2024] NSWCA 40)
- Murphy v State of New South Wales [2023] NSWSC 407
- New South Wales v Randall [2017] NSWCA 88
- O'Connor v R (District Court of NSW, 12 August 2010, unreported)
- Buck v Bavone (1976) 135 CLR 110
- Coleman v Power (2004) 220 CLR 1