Citation: Carroll v R [2025] NSWDC 546
Court: District Court of New South Wales
Date: 8 December 2025
Judge: Newlinds SC DCJ
Background
The appellant had been convicted in the Local Court of two counts of unlawful entry on inclosed lands under the Inclosed Lands Protection Act 1901 (NSW). The convictions rested on a finding that his consent to enter any Westfield-controlled premises had been withdrawn and he had been served with notice of that withdrawal. The appellant had admitted to police that he had visited Westfield Bondi Junction on 16 June 2025.
The admissions were made during a roadside interaction following a vehicle stop by Constable Blair. The officer stopped the vehicle after observing the appellant enter and exit 42 Flood Street, Bondi quickly, and relying on his knowledge that the address was associated with drug supply. When asked what he had been doing, the appellant voluntarily disclosed he had been shopping at Westfield Bondi Junction, premises from which the officer knew he had been banned.
The appellant objected to the admissions in the Local Court on the basis that the stop-and-search power was not lawfully engaged. The magistrate admitted the evidence, finding no impropriety or unlawfulness. The appellant then appealed to the District Court under the Crimes (Appeal and Review) Act 2001 (NSW).
Legal Issues
- Whether Constable Blair held reasonable grounds for his suspicion as required by s 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), such that the stop-and-search power was validly exercised
- Whether the admissions obtained during that stop were improperly or illegally obtained, engaging the exclusionary discretion under ss 138 and 139 of the Evidence Act 1995 (NSW)
- Whether the appellant ought to have been cautioned before questioning, and whether s 139(6) of the Evidence Act applied
Decision
Newlinds SC DCJ began by clarifying the correct legal test under s 36 of LEPRA. The provision requires both a subjective suspicion in the officer's mind and, separately, that the suspicion be based on objectively reasonable grounds. These are two distinct inquiries. The court's role when considering the second element is not to ask whether the judge would have formed the same suspicion, but to assess objectively whether the grounds relied upon constitute reasonable grounds as a matter of law.
The primary ground advanced by Constable Blair was the combination of his knowledge that 42 Flood Street was associated with drug supply and his observation that the appellant entered and exited the premises quickly. Newlinds SC DCJ found this did not constitute a reasonable ground. The address is a large residential complex with many separate units. A person entering and exiting briefly may have an entirely innocent explanation, such as visiting a resident or dropping something off. The observation was therefore insufficient to objectively ground the required suspicion.
The other grounds offered by the officer in evidence, including the appellant's criminal record, prior stops, a drug-dog encounter on a train, and past interactions with the officer, were also assessed. These were found to be too vague, stale, or inconclusive individually or in combination to constitute reasonable grounds. No drugs had been found on the appellant in any prior stop, and the additional matters added no material weight.
Because the stop power under s 36 was not validly engaged, the admissions were improperly obtained and the discretion under s 139 of the Evidence Act was enlivened. The Crown did not contend that, if the court reached that conclusion, the discretion should be exercised in favour of admitting the evidence. The court agreed that concession was well made, given the circumstances and the relatively minor nature of the offence charged. Without the admissions, no conviction could stand, and the appeal was upheld.
Orders Made
- The appeal was upheld
- The conviction recorded by the magistrate was set aside
- The sentence (which had been imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)) was also set aside
Key Takeaways
- Under s 36 of LEPRA, the question of whether reasonable grounds exist for a suspicion is an objective one for the court, distinct from the officer's subjective state of mind. A court does not ask whether it would have formed the same suspicion; it asks whether the grounds relied upon are objectively reasonable as a matter of law.
- A brief entry and exit from a large residential complex known for drug activity was found, on the facts of this case, to be insufficient on its own to constitute reasonable grounds for suspicion that a person possessed prohibited drugs.
- Vague or inconclusive background material, including prior searches that found nothing, an unspecified drug-dog encounter, and generalised "intelligence," did not cure the deficiency in the primary ground when assessed in combination.
- Where a police stop-and-search power under s 36 of LEPRA is not validly engaged, the detention that follows is not lawful, and s 139(6) of the Evidence Act is not activated. The person is deemed to be under arrest for the purposes of s 139(5), and a caution is required before questioning.
- Convictions that rest entirely on admissions obtained through an improperly exercised stop-and-search power are vulnerable to challenge under ss 138 and 139 of the Evidence Act, and courts may decline to exercise the discretion to admit such evidence, particularly where the offence charged is relatively minor.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 36
- Evidence Act 1995 (NSW), ss 138, 139
- Inclosed Lands Protection Act 1901 (NSW), s 41B
- Crimes (Appeal and Review) Act 2001 (NSW), s 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases:
- Reyes-Carrion v State of New South Wales [2025] NSWDC 28
- Williams v Keelty [2001] FCA 1301
- Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611