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District Court 4 November 2025

R v Nguyen

[2025] NSWDC 567

Drugs

Citation: [2025] NSWDC 567
Court: District Court of New South Wales (Criminal)
Date: 4 November 2025
Judge(s): Wass SC DCJ

Background

The accused was charged with multiple counts of drug supply following events on the night of 28 August 2023. Two uniformed police officers from the Bankstown Proactive Crime Unit, travelling in an unmarked car, observed a Honda with Queensland registration plates perform an illegal U-turn before pulling into a motel car park in the Bass Hill area. The officers were aware of a recent intelligence report that two individuals — neither of whom matched the accused — were supplying methylamphetamine and heroin from a particular room at that motel, using a different vehicle.

The officers followed the Honda into the motel car park. After observing certain activity — including a woman briefly approaching the Honda before turning back, and the accused allegedly "fidgeting" under the steering wheel — the officers decided to search the accused and the vehicle. That search uncovered approximately 57 grams of methylamphetamine and 3.2 grams of heroin inside the car (counts 1 and 2). A phone seized from the accused's possession yielded evidence supporting four additional ex officio counts of drug supply (counts 3 to 6), involving substantial quantities of heroin and methylamphetamine on various dates in August 2023.

The accused applied under s 138(1) of the Evidence Act 1995 (NSW) to exclude all evidence obtained as a consequence of the search, arguing that the police lacked the reasonable suspicion required by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") to lawfully search him or his vehicle.

  • Whether the police officers held a "reasonable suspicion" as required by LEPRA to conduct the search of the accused's person and vehicle, and whether the search was therefore lawful.
  • Whether the evidence gathered from the search was "improperly or illegally obtained" within the meaning of s 138 of the Evidence Act 1995 (NSW).
  • If the evidence was improperly obtained, whether the court should nonetheless admit it under the discretionary balancing exercise in s 138(1) — weighing the desirability of admitting the evidence against the undesirability of admitting improperly obtained evidence.
  • The credibility and reliability of the police officers' evidence on the voir dire, including the impact of irregularities in evidence preparation and record-keeping.

Decision

The Search Was Unlawful

Her Honour conducted a detailed assessment of the evidence of both officers on the voir dire and found significant problems with its reliability. Officer Donaldson habitually did not carry a notebook and made no contemporaneous notes. Officer Azzi prepared his statement using Officer Donaldson's statement, the COPS event, and the police facts — a practice the Court described as "highly irregular" because it undermined the independence and reliability of Officer Azzi's account. Body-worn camera footage only commenced very shortly before the accused was approached and searched, failing to capture the critical earlier observations on which the officers said they based their decision. No effort was made to obtain CCTV footage from the motel that could have objectively verified the officers' accounts.

The Court found the officers' accounts of what they could observe from their vantage point to be inconsistent and, in key respects, unreliable. Officer Donaldson claimed the unmarked police car was parked within about a metre of the Honda; Officer Azzi said it was 10–15 metres away. The Court preferred Officer Azzi's estimate, finding it unlikely that uniformed officers in an unmarked vehicle conducting covert surveillance would park directly behind the target car. At that distance, and in the lighting conditions of a motel car park at night, the Court was not satisfied the officers could have seen the details they claimed — including the accused allegedly "fidgeting" under the steering wheel, or the contents of his lap.

On the critical question of reasonable suspicion, her Honour found that the intelligence report did not connect the accused, the Honda, or any woman seen near the car to the known suspects or to the particular motel room identified in the report. The officers conceded that the vast majority of motel attendees were there for lawful purposes and that simply walking out of a motel room at night was not suspicious. The Court found that the officers' pre-existing mindset — actively looking for drug dealing — contributed to confirmation bias, and that the objective circumstances known to the officers at the time they decided to search did not amount to a reasonable suspicion that the vehicle contained drugs. The term "lazy policing" was used by the Court to characterise the officers' failure to take basic investigative steps, such as making contemporaneous notes, activating body-worn cameras earlier, checking whether the woman came from the room identified in the intelligence, or seeking CCTV.

The Discretionary Balancing Exercise Under s 138

Having found the search was unlawful and the evidence improperly obtained, the Court turned to the balancing exercise under s 138. The Crown argued that the evidence was highly probative and that the offences were serious — factors favouring admission. However, the Court weighed against admission the deliberate nature of the impropriety (the officers chose not to carry notebooks and not to activate their cameras earlier), the seriousness of the breach of the accused's rights, the absence of any urgency that might justify dispensing with proper procedures, and the availability of less intrusive means of investigation. Her Honour concluded that the undesirability of admitting the evidence outweighed its desirability, and ordered the evidence excluded.

The Court emphasised that the result — the fact that drugs were indeed found — did not retrospectively validate a search conducted without reasonable suspicion. The integrity of the criminal justice system required that police comply with the statutory safeguards in LEPRA, and that courts enforce those safeguards even where the evidence is significant.

Orders Made

  • The evidence obtained as a consequence of the police search on 28 August 2023 — including the drugs found in the vehicle and the contents of the phone seized from the accused — was excluded pursuant to s 138(1) of the Evidence Act 1995 (NSW).

(Note: The judgment text provided was truncated, and the precise form of the final orders should be confirmed against the full published decision.)

Key Takeaways

  • Reasonable suspicion must be grounded in objective facts rather than hunches or confirmation bias. The District Court found that police awareness of general intelligence about drug activity at a location did not, without more, establish a reasonable suspicion to search a particular individual who had no identified connection to that intelligence.

  • Deficiencies in police evidence-gathering practices proved significant to the exclusion application. The Court was critical of the failure to make contemporaneous notes, the late activation of body-worn cameras, the failure to obtain available CCTV, and the sharing of one officer's statement with another for the purpose of drafting their own evidence. These failures were characterised as "lazy policing" and materially undermined the Crown's position.

  • No retrospective justification for an unlawful search arose from the discovery of contraband. The District Court held explicitly that the fact drugs were ultimately found was irrelevant to whether the officers held a reasonable suspicion at the time the decision to search was made.

  • Under the s 138 balancing exercise, the seriousness of the charged offences and the probative value of the evidence were outweighed by other considerations. Although those factors favoured admission, the Court found that the deliberate nature of the police impropriety and the systemic importance of enforcing statutory safeguards tipped the balance in favour of exclusion.

  • Officers sharing statements during preparation was found to be "highly irregular," seriously damaging the reliability and weight of their evidence. The Court's scrutiny of how police statements were prepared was a material factor in its assessment of the officers' credibility and the ultimate exclusion of the evidence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA")

Key Cases Cited:
- Bunning v Cross (1978) 141 CLR 54
- George v Rockett [1990] HCA 26; (1990) 170 CLR 104
- R v Rondo [2001] NSWCCA 540
- IMM v The Queen (2016) 257 CLR 300
- R v Bauer (2018) 92 ALJR 846
- Azar v DPP [2014] NSWSC 132
- Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219
- Parente v R [2017] NSW