R v El-Kahil (No. 1) - [2022] NSWDC 606

District Court

New South Wales

Medium Neutral Citation: R v El-Kahil (No. 1) [2022] NSWDC 606
Hearing dates: 19 – 21 & 25 July 2022
Date of orders: 15 November 2022
Decision date: 15 November 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused
(2) To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application is refused

Catchwords:
CRIME — Violent offences — Resist/Hinder police officer in execution of duty
CRIMINAL PROCEDURE — Evidence — Admissibility
CRIMINAL PROCEDURE — Trial — Voir dire

Legislation Cited:
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Forensic Procedures) Act 2000
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Drug Misuse and Trafficking Regulation 2021
Evidence Act 1995
Firearms Act 1996
Law Enforcement (Powers and Responsibilities) Act 2002
Police Powers (Vehicles) Act 1998
Road Transport Act 2013
Weapons Prohibition Act 1998

Cases Cited:
Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bales v Parmeter (1935) 35 SR (NSW) 182
Gilmour v Environmental Protection Authority [2002] NSWCCA 399
Hyder v Commonwealth of Australia [2012] NSWCA 336
International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
New South Wales Crime Commission v Vu [2009] NSWCA 349
Pearse v Pearse (1846) 63 ER 950
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
R v Basha (1989) 39 A Crim R 337
R v Buddee [2016] NSWDC 422
R v Elliot (No. 1) [2022] NSWDC 327
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Winikerei v R [2022] NSWDC 250

Texts Cited:
International Covenant on Civil and Political Rights

Category: Procedural rulings
Parties: Rex (Crown)
Robert El-Kahil (Accused)
Representation:
David Phillips (Crown Prosecutor)
Leah Rowan (Counsel for the Accused)
Director of Public Prosecutions (NSW) (Crown)
George Sten & Co Criminal Lawyers (Accused)

File Number(s): 2020/00331724

JUDGEMENT

Introduction

On Tuesday July 19th, 2022, the trial of Robert El-Kahil was allocated to me in the District Court, Sydney, commencing with voir dire proceedings to determine preliminary questions of law before selection of a jury. Before the voir dire commenced the accused was arraigned and pleaded not guilty to each of the charges presented in the original indictment.
The accused appeared on bail which continues without objection from the Crown.

The Proceedings

The proceedings took some time to reach the point of readiness for trial. The present application was commenced on 19 July 2022. The voir dire continued with the tender of documents and body camera recordings and evidence from a police officer. The hearing continued on July 20, July 21, and July 25, 2022. The parties were thereafter to provide written submissions which could not be completed according to the proposed timetable because of the Crown Solicitor Advocate’s illness, whereupon the matter was adjourned to allow for his recovery and the work to be completed. The proceedings were listed for 4 October 2022 when I returned from overseas but that date did not suit since the Crown had briefed private counsel to assume the conduct of the matter and he was unavailable. To accommodate his diary and to avoid disruption to another trial in which I was presiding the matter was deferred to resume on 14 November 2022 when final submissions were presented and addressed.
The trial commenced with jury selection on 15 November 2022.

The Indictment

The indictment upon which the Crown proceeds alleges four offences:

Count One

On 20 November 2020, at Surry Hills in the State of New South Wales, [the accused] did assault Constable Mathew Jackson, being a Police Officer, in the execution of his duty.

S 60(1) Crimes Act 1900 Law part code 21705

Count Two

On 20 November 2020, at Surry Hills in the State of New South Wales, [the accused] did assault Constable Mathew Clarkson, being a Police Officer, in the execution of his duty.

S 60(1) Crimes Act 1900 Law part code 21705

Count Three

On 20 November 2020, in Surry Hills in the State of New South Wales, [the accused] did cause grievous bodily harm to Constable Logan Glasson a police officer while the said officer was executing her duty and while being reckless as to causing actual bodily harm.

S 60(3) Crimes Act 1900 Law part code 77105

Count Four,

in the alternative to Count Three,

On 20 November 2020, at Surry Hills in the State of New South Wales, [the accused] did assault Constable Logan Glasson, a Police Officer, while the said officer was executing her duty and by that assault did occasion actual bodily harm.

S 60(2) Crimes Act 1900 Law part code 21709

The original indictment omitted from Count Three the given name of the police officer. When the proceedings resumed before me on 14 November 2022 the Crown sought amendment to which the accused consented to include her given name, consistent with the particulars in Count Four. The accused was re-arraigned on Count Three and pleaded not guilty.

The Issue

The pre-trial issue was said to turn upon whether evidence gathered by police after the accused was intercepted driving a motor vehicle with a tyre with insufficient tread pattern should be excluded upon the application of s 138 Evidence Act 1995.
The argument presented by the accused was rather more complex than this simple statement might suggest.
When the voir dire was in its early stages I offered the view that the issues raised were more within the province of the jury rather than the trial judge, whereupon counsel announced that the nature of the evidence to be adduced by the Crown and the case against the accused were such that there ought to be permitted a hearing in accordance with R v Basha (1989) 39 A Crim R 337. The Crown did not concede this point. Since that decision legislative amendment to the committal process limits committal hearings, which before involved much use of Local Court resources for presentation of evidence that in large measure was replicated afterward in trials. However, the amendments did not obviate, in an appropriate case, the examination of witnesses before their presentation to a jury, whether in committal hearings or in the presence of the trial judge after committal for trial. I accepted that in this case evidence to be advanced in the Crown case ought to be exposed before the empanelment of the jury. There are features of the events in which the accused was arrested, when evidence of prohibited drugs was allegedly discovered, to be offered in support of the argument that most if not all the evidence in the Crown case ought to be excluded. If that argument failed, the material would be advanced to inform whether the interaction between the police and the accused allowed for the possibility that the accused was acting in defence of his circumstances when the police sought to restrain him in what was without question a violent confrontation.
The essence of the argument advanced by the accused initially was that the conduct of the police was unlawful from the outset and throughout their interaction with him to the point when it is alleged that he committed the offences for which he is to be tried, and that whatever his conduct might have been in the commission of the alleged offences from that time on, evidence of his behaviour ought to be excluded upon the application of s 138 Evidence Act 1995 as it was obtained in consequence of impropriety or contravention of Australian law on the part of the police.
During proceedings on 14 November 2022, I misconceived an aspect of the accused’s argument, believing counsel had blended the initial search of the accused by Constable Clarkson with the later attempt to strip search the accused. The transcript at page 157 includes,

“ROWAN: there's only one other thing that I don't think we've quite addressed, your Honour, and that's this question of whether the strip search was continuing at the time that the accused was withdrawn from the truck. So yes, he's been detained at that point, but the strip search, in our submission, it was continuing, and it may not be clear, but your Honour may recall it from the footage, that the strip search was being conducted in the back of the truck. The accused was in the back of the truck. Officer Clarkson was standing at the door of the truck, directing the accused, it was being filmed by a different officer. I think Sergeant Aishu, from memory, maybe Prince, but I think it was Aishu. Jackson, we see on a piece of footage, walks towards the truck, and the accused at that point is refusing to remove his underwear. Jackson says this is after the accused had already made and that's on the footage, as well objection to the strip search, but anyway, put that to one side. He's refusing to remove his underwear. You hear Jackson say that's okay, pull him out and we'll have to have a look in the underwear. So he's come out of the truck, and they're in a process of handcuffing him for the purpose of looking in his underwear, so in my submission, the strip search is still continuing at that point in time, for what it's worth. And of course, post all of this, there is the footage that shows that indeed, they did look in his underwear on the side of the road”.

It is important to note that Counsel was making clear the important distinction between the events in which the accused and his vehicle were initially searched, and the later body search. The legislative powers of the police to engage upon these searches differ.

The Facts

According to the statement provided by Constable Mathew Jackson the salient events began about 11:20am on Friday 20 November 2020 when he was patrolling on a police motorcycle in Crown Street, Surry Hills. About that time he noticed a tyre on the vehicle driven by the accused had a worn edge, indicating insufficient tread pattern. He followed the vehicle to the intersection of Crown Street and Cleveland Street and through the driver’s window instructed the accused to pull around the corner so that he could speak about the tyre. He followed the accused’s vehicle and both stopped in Nickson Street, Surry Hills. The Constable announced his name, rank, and place of work and asked the accused to produce his licence which he did. The accused submitted to a breath test which proved negative. The Constable indicated the deficient tyre. The Constable called for another vehicle to attend with a roadside drug test kit. His supply was depleted. He instructed the accused that he was removing his helmet and would return in a moment, and told him not to eat, drink, or smoke until a roadside drug test was completed. Senior Constable Clarkson arrived in a police truck fitted with a cage. Constable Jackson activated his body worn camera. When he returned to the accused he saw him chewing with a white powder on his lips. Constable Jackson told him to open his mouth and asked, “What is that?” The accused said he was eating a Mentos sweet, but the constable detected no smell of mint consistent with him doing so and believed the powder on the accused’s lips was also inconsistent with that confection. Coincidental with this exchange Constable Jackson searched indices using a “MobiPol” device and thereby confirmed the accused’s name and the currency of his licence. He noted a history of drug possession and use, and prior charges for drug offences. [1] At paragraph 13 of his statement Constable Jackson asserted,

“There was no minty smell consistent with a Mentos and the consistency of the substance is (sic) the accused’s mouth did not look like a Mentos”.
1. The “MobiPol” is a field device used in circumstances such as these and provided the facility whereby the particulars of a motorist and the details of the alleged offence can be entered formally to commence the processes for action upon an infringement

At paragraph 14 of his statement Constable Jackson asserted,

“As this was occurring I searched the accused’s details on the police MobiPol device. I confirmed that his licence was current and active. The accused had a lengthy history of drug possession and use and had been charged several times that year for drug related offences. At this time I formed the reasonable suspicion that the accused had ingested illicit drugs to avoid detective by police”.

According to a plain reading of these paragraphs together with the instructions given by the Constable to the accused not to eat or drink or smoke, the accused’s disregard of his instruction, the representation by the accused that he had eaten a Mentos, and the presence of white powder on his lips, which was not there before he observed it, in conjunction with the information provided by the MobiPol device, he suspected that the accused might have ingested a drug to avoid detection. This implies that the decision to search the accused and the accused’s car was informed by all these factors, but the implication is qualified by paragraph 15 of his statement in which he wrote,

“I showed Constable CLARKSON the information I had obtained from the police system and he turned to the accused and stated (sic) “I Constable CLARKSON from Surry Hills Police. I’ve got reasonable suspicion that you’re in possession of a prohibited drug. I’m going to give you a search”.

The accused responded that he needed to call his lawyer and became aggressive and argumentative. Constable Jackson told the accused he could call his lawyer at a suitable time, that they would assist him to do so, but that he and his vehicle were to be searched. Constable Jackson wrote in his statement that because of continued aggression, and to facilitate the accused’s safety and the search, Constable Clarkson handcuffed the accused. As he did so the accused continued to tense his arms and not comply with requests to keep his arms still. The accused called out to members of the public telling them to film the interaction. He was told on several occasion that the body worn cameras were recording the exchange.
As Constable Clarkson searched the accused Constable Jackson searched the vehicle and he found a plastic bag filled with tissues and rubbish. Inside the bag was a small resealable bag with crystals consistent with methylamphetamine, and a small vial containing liquid with a smell consistent with gamma hydroxybutyrate, referred to in his statement as GHB. This was later confirmed upon analysis to be gamma-butyrolactone.
He approached the accused and told him he was under arrest for drug possession. The accused denied the items were his. Efforts to caution the accused were met with interruptions and aggression. He repeated that he needed to call his lawyer.
Other police arrived by this time. A roadside drug test then administered was positive for methylamphetamine.
One of the police, Sergeant Aishou, said he saw the accused adjusting his waistband as if trying to remove or hide something in his underwear. Constable Jackson wrote that “it was decided” to search him in the cage of the police truck to afford him privacy. Constable Clarkson undertook the task but when the accused refused to remove his underwear “it was decided” to remove him from the truck, reapply handcuffs, and continue the search. When this was attempted accused tensed and refused to comply. He was spun around with his chest placed against the vehicle and one arm put behind his back.
In the melee that followed the accused struck out at Constable Jackson in the groin. This is the offence charged in Count One.
The accused was taken to the ground where he continued to resist, punching, and kicking police. Constable Clarkson called out, “He’s got the taser.” Constable Jackson saw the accused with his hands on the taser as if trying to remove it from the holster. Constable Jackson applied a two second burst of OC spray, which appeared to have no effect.
Constable Clarkson called out, “He’s biting me” twice. This is the offence charged in Count Two.
Constable Glasson called out, “Stop doing that to my finger.” She suffered a swollen finger and was taken to hospital in due course. This founds Counts Three and in the alternative Four.
Six police sought to control the accused who began to tire after about 90 seconds when handcuffs could be applied. He was returned to the cage truck where he continued to yell and scream. Sergeant Aishou announced that the accused had something in his underwear with which he cut himself. He was removed from the truck with heavy bleeding from his hand. Constable Jackson saw what he believed was a smashed “Ice Pipe in the cage.
The accused was taken to hospital.
The charges upon which the accused is presented for trial do not include any arising from the possession or use of prohibited drugs but are confined to the assaults allegedly committed by the accused when the police sought to control him after he resisted them refusing to comply with their instructions to facilitate the search of his underwear.

The Application

The accused’s application is for exclusion of the evidence available in proof of this sequence of facts. The accused denies that he committed the acts charged. When the matter resumed on 14 November 2022, the accused abandoned the argument upon which he initially relied that the conduct of Constable Jackson having the accused submit to the traffic stop was improper. The legislative powers given to the police to deal with motorists and vehicles identified by the accused are no longer relied upon.
I hereinafter refer to the arguments that are now relied upon.

The Accused’s First Submissions

The accused’s submissions of 27 July 2022 argue that the evidence of all that occurred and of what was found from when the police embarked upon their initial search of the accused, including the description of what occurred in the melee, so described, should be excluded upon the application of s 138 Evidence Act 1995. This must now be qualified with the concession made regarding the lawfulness of the traffic stop. The timeline to which the argument relates begins with the interaction between Constable Jackson and the accused after they left their respective vehicles.
As noted in Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1, s 138 Evidence Act 1995 is exclusionary, proscribing the use of evidence caught by s 138(1) subject to the exercise of discretion for the admission of the evidence if the desirability of admitting the evidence obtained improperly or in contravention of an Australian law, or in consequence thereof, outweighs the undesirability of admitting evidence that has been obtained so. The section provides, relevantly,

(1)    Evidence that was obtained—
(a)  improperly or in contravention of an Australian law, or
(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)    …—
(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)  the probative value of the evidence, and
(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d)  the gravity of the impropriety or contravention, and
(e)  whether the impropriety or contravention was deliberate or reckless, and
(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

There was no argument advanced regarding the International Covenant on Civil and Political Rights. There are no other proceedings current or likely in respect of the conduct by the police officers. There was perhaps a qualified argument in the accused’s submissions regarding the issue whether there was difficulty in obtaining the evidence without impropriety or in contravention of an Australian law, but upon my understanding of the submissions they were not focused upon s 138(3)(h), but were instead developed upon the premise of impropriety or contravention in conduct leading to the states of mind of the police officers which led to their endeavour to control the accused in response to his resistance of their efforts, in the course of which it is alleged that the assaults occurred. This is a question which does not engaged that paragraph.
The reasons given in support of the accused’s argument include reference to the strip search, which was said in oral argument to have continued when the accused was at the rear of the truck into the melee from which the charges are brought.
As I noted, the essence of the present argument is that the police conduct was unlawful throughout their interaction with the accused from when Constable Jackson and the accused left their respective vehicles in Nickson Street, to the point when it is alleged that he committed the offences for which he is to be tried, and that whatever his conduct might have been in the commission of the alleged offences, evidence of that conduct ought to be excluded upon the application of s 138 Evidence Act 1995 as it was obtained in consequence of impropriety or contravention of Australian law on the part of the police: s 138(1)(b) Evidence Act 1995. I would not hold that the evidence of the accused’s conduct was obtained improperly or in contravention of Australian law as provided in s 138(1)(a). The evidence addressing the conduct in which it is alleged the offences were committed is by way of observations made by the police present and recordings of the event captured electronically. For the accused’s application to succeed it must be on the basis that the evidence to prove conduct said to be the offences charged was obtained in consequence of impropriety or contravention of Australian law. Whether it was so is the question to be resolved.
In support of the submission the following points were advanced.

The decision to search the accused and his car was based solely upon Constable Jackson’s awareness of the accused’s criminal record, was therefore unlawful, and evidence of items seized in the search of the car is inadmissible.

Constable Jackson’s asserted belief that the accused may have had something secreted was not sufficient to justify a strip search of his person, it was not necessary for the Constable to do so, the circumstances did not involve seriousness and urgency sufficient to necessitate a strip search, and the strip search was therefore unlawful.

The melee in which it is alleged that the charged conduct occurred was during the ongoing unlawful strip search and was a consequence of it.

The accused is entitled to defend himself against the unlawful trespass even if found to be in response to lawful conduct: ss 418 & 422 Crimes Act 1900.

The accused’s submissions include a table in which he denies the specific events in which the impugned police behaviour is said to have occurred, the Australian law allegedly contravened by police, and page references for the evidence relevant to each.
Regarding the search of the accused’s vehicle counsel invited attention to s 138 Evidence Act 1995, ss 25-41 Law Enforcement (Powers and Responsibilities) Act 2002, Schedule 3, ss 5-68 Road Transport Act 2013.
Ss 25 – 41, Law Enforcement (Powers and Responsibilities) Act 2002 appear in Part 4 Search and seizure powers without warrant. Ss 25 – 27 were at all material times repealed. Ss 28 – 41 of the Act cannot all be relevant to the application. They provide:

Division 3 Searches of persons on arrest or while in custody
27 Power to carry out search on arrest
(1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody, or
(c) that is a thing with respect to which an offence has been committed, or
(d) that is a thing that will provide evidence of the commission of an offence, or
(e) that was used, or is intended to be used, in or in connection with the commission of an offence.

(2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody.

(3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2).
(4) Nothing in this section limits section 28A.
28 Ancillary power to search persons
(1) In conducting a search of a person under section 27, a police officer may, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 27(1) or (2) is concealed in the person’s mouth or hair, require the person—
(a) to open his or her mouth to enable it to be searched, or
(b) to shake, or otherwise move, his or her hair.

(2) Subsection (1) does not authorise a police officer to forcibly open a person’s mouth.
(3) A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section.
Maximum penalty—5 penalty units.
28A Power to carry out search of person in lawful custody after arrest
(1) A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search.
(2) Any such search may be carried out at a police station or other place of detention or immediately before or during transportation of the person to or from a police station or other place of detention.
Division 4 Provisions relating generally to personal searches
29 Application of Division
(1) This Division applies to any search of a person carried out by a police officer under this Act, except as otherwise provided by this Act or the regulations.
(2) This Division also applies to any search of a person that is carried out by a police officer after obtaining the person’s consent to carry out the search. In that case—
(a) the purpose of the search is the purpose for which the police officer obtained consent to search, and
(b) a general consent to the carrying out of a search is not consent to carry out a strip search unless the person consents to the carrying out of a strip search.
30 Searches generally
In conducting the search of a person, a police officer may—
(a) quickly run his or her hands over the person’s outer clothing, and
(b) require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and
(c) examine anything in the possession of the person, and
(d) pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person, and
(e) do any other thing authorised by this Act for the purposes of the search.

31 Strip searches
A police officer may carry out a strip search of a person if—
(a) in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b) in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

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.

(5) The police officer must conduct the least invasive kind of search practicable in the circumstances.
(6) The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
(7) A search must be conducted by a police officer of the same sex as the person searched.
(7A) ….
(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.
(8A) Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.
(9) A person must be allowed to dress as soon as a search is finished.
(10) If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.
(11) In this section—
“questioning” of a person means questioning the person, or carrying out an investigation (in which the person participates).
33 Rules for conduct of strip searches
(1) A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—
(a) the strip search must be conducted in a private area,
(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,
(c) except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.

(2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.
(3) ….
(3A) ….
(4) A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.
(5) A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(6) A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(7) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.
(8) This section is in addition to the other requirements of this Act relating to searches.
(9) ….
Note. Procedures for searches of a more invasive nature are dealt with under the Crimes (Forensic Procedures) Act 2000.
34 ….
34A Searches carried out with consent
(1) A police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.
(2) A police officer must, before carrying out any such consensual search, provide the person with—
(a) evidence that the police officer is a police officer (unless the police officer is in uniform), and
(b) the name of the police officer and his or her place of duty.

Division 5 Vehicle stop, entry, search and roadblock powers
35 Relevant offences
The following offences are “relevant offences” for the purposes of this Division—
(a) indictable offences,
(b) an offence against section 93FB of the Crimes Act 1900,
(c) an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts.

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) [2]
2. These provisions were repealed at the material times.
(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—
(a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(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,
(f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.

(2) ….
(3) A police officer may seize and detain—
(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

Regarding the strip search of the accused counsel invited attention to s 138 Evidence Act 1995, and ss 31-34A Law Enforcement (Powers and Responsibilities) Act 2002 quoted above.
Regarding evidence relevant to the analysis of the substances and the roadside drug test counsel invited attention to s11(2) Drug Misuse and Trafficking Regulation 2021. S 11 provides,

Division 2 Samples and analysis
11 Initial quantity or mass of substances to be recorded and certificate provided
(1) As soon as practicable after a relevant substance first comes into the custody of a member of the NSW Police Force, and before a sample is taken for analysis, an approved member of the NSW Police Force must—
(a) record the quantity or mass of the relevant substance (the “initial quantity or mass”), or
(b) provide the relevant substance to an analyst to record the initial quantity or mass of the relevant substance.

(2) The member of the NSW Police Force or analyst must—
(a) produce a certificate stating the initial quantity or mass of the relevant substance, and
(b) cause a copy of the certificate to be served on the defendant or accused person in all proceedings under the Act relating to the relevant substance.

(3) In proceedings under the Act, the production of a certificate, purporting to be signed by an approved member of the NSW Police Force or analyst, is prima facie evidence of the initial quantity or mass of the relevant substance and the matters stated in it.
(4) Subsection (3) does not apply if a quantity review order is made under the Act, section 39M.
(5) In proceedings under the Act, the production of a certificate, purporting to be signed by a person who determined the mass of a relevant substance in accordance with a quantity review order under the Act, section 39M, is prima facie evidence of the mass of the relevant substance and the matters stated in it.

Regarding evidence of the roadside drug test counsel invited attention to s 138, Evidence Act 1995 quoted above, and ss 55, 76, and 137 of the Evidence Act 1995; and Schedule 3, ss 32, 32B, and 33 Road Transport Act 2013, which provide,

55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to—
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.

76 The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Note— Specific exceptions to the opinion rule are as follows—
• summaries of voluminous or complex documents (section 50 (3))
• evidence relevant otherwise than as opinion evidence (section 77)
• lay opinion (section 78)
• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)
• expert opinion (section 79)
• admissions (section 81)
• exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))
• character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Examples:
1 P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.
2 P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work. S137 Evidence Act 1995.

137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
32 Evidence of presence of drugs in proceedings for offences against section 111

(1) This clause applies to any proceedings for an offence against section 111 (Presence of certain drugs (other than alcohol) in oral fluid, blood or urine).
(2) In proceedings to which this clause applies in relation to a prescribed illicit drug—
(a) evidence may be given of the presence of a prescribed illicit drug in the oral fluid of the person charged as determined by an oral fluid analysis under this Schedule of a sample of the person’s oral fluid, and
(b) the presence of a prescribed illicit drug in a person’s oral fluid so determined is taken to show the presence of the drug at the time of the occurrence of the relevant event referred to in section 111(1)(a), (b) or (c) if the oral fluid sample analysed was provided within 2 hours after the event, unless the defendant proves the absence of the drug when the event occurred.

(3) In proceedings to which this clause applies—
(a) evidence may be given of the presence of a prescribed illicit drug or morphine in the blood or urine of the person charged as determined by an analysis of the person’s blood or urine under this Schedule, and
(b) the drug the presence of which is so determined is taken to be so present at the time of the occurrence of the relevant event referred to in section 111(1)(a), (b) or (c) or (3)(a), (b) or (c) if the blood or urine sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug when the event occurred.

32A Evidence of alcohol concentration in proceedings for offences against section 111A
(1) This clause applies to proceedings for an offence against section 111A in relation to evidence of alcohol concentration.
(2) Evidence may be given in the proceedings of the concentration of alcohol present in the breath or blood of the person charged as determined by—
(a) a breath analysis carried out by a police officer authorised to do so by the Commissioner of Police, or
(b) an analysis of the person’s blood under this Schedule.

(3) In the proceedings, the concentration of alcohol determined under subsection (2) is taken to be the concentration of alcohol in the person’s breath or blood at the time of the occurrence of the relevant event referred to in clause 3(1)(a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant’s breath or blood at the time was—
(a) less than an amount in the range of the prescribed concentration of alcohol relevant to the offence charged, or
(b) zero grams of alcohol in 210 litres of breath or 100 millilitres of blood.

(4) Nothing in subclause (3) affects the operation of section 111A (5).
32B Evidence of presence of prescribed illicit drug in proceedings for offences against section 111A
(1) This clause applies to proceedings for an offence against section 111A in relation to evidence of a prescribed illicit drug.
(2) In the proceedings in relation to a prescribed illicit drug—
(a) evidence may be given of the presence of a prescribed illicit drug in the oral fluid of the person charged as determined by an oral fluid analysis under this Schedule of a sample of the person’s oral fluid, and
(b) the presence of a prescribed illicit drug in a person’s oral fluid determined by an oral fluid analysis under this Schedule is taken to show the presence of the drug at the time of the occurrence of the relevant event referred to in section 111A(1), (2) or (3) if the oral fluid sample analysed was provided within 2 hours after the event, unless the defendant proves the absence of the drug when the event occurred.

(3) In the proceedings in relation to a prescribed illicit drug—
(a) evidence may be given of the presence of a prescribed illicit drug in the blood or urine of the person charged as determined by an analysis of the person’s blood or urine under this Schedule, and
(b) the drug the presence of which is determined by an analysis of the person’s blood or urine under this Schedule is taken to be present at the time of the occurrence of the relevant event referred to in section 111A (1), (2) or (3) if the blood or urine sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug when the event occurred.

33 Evidence of presence of drugs in proceedings for offences against section 112
(1) This clause applies to any proceedings for an offence against section 112(1) (Use or attempted use of a vehicle under the influence of alcohol or any other drug).
(2) In proceedings to which this clause applies—
(a) evidence may be given of the presence of a drug, or the presence of a particular concentration of drug, in the blood or urine of the person charged, as determined pursuant to an analysis under this Schedule of a sample of the person’s blood or urine, and
(b) the drug the presence of which is so determined or the particular concentration of the drug the presence of which is so determined (as the case may be) is to be taken to have been present in the blood or urine of that person when the event referred to in section 112(1)(a) or (b) (as the case may be) occurred if the sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug, or the presence of the drug in a different concentration, when the event occurred.

The Crown’s Submissions

On 14 August 2022 the Crown provided written submissions prepared by the solicitor advocate with carriage of the matter until that role was assumed by counsel now appearing. Counsel relies upon those submissions.
The application to exclude evidence at trial set out in the table in the accused’s written submissions, specifically upon the application of s 138 Evidence Act 1995, is opposed.
The Crown does not dispute application to the actions of police of the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 and to a lesser extent the Road Transport Act 2013.
The Crown submits that at least some of the submissions advanced by the accused, and specifically those advancing that the acts constituting the offences charged in the melee, that the accused pleaded not guilty to all counts, that the accused denies that he committed the acts alleged of him, and that he is entitled to assert that his response, whatever it might have been was proportionate to an unlawful trespass to his person, are matters that are for determination by the jury in their assessment of whether the Crown has established the offences beyond reasonable doubt. I agree with that submission, but the expression of those points has given the court some understanding of the some of the issues against which to assess the merit of this application.
The Crown submits that the essence of the accused’s submission is that the following aspects of the impugned conduct attract the application of s 138 Evidence Act 1995,

The accused was searched and his vehicle was searched without a reasonable suspicion to justify those steps;

The subsequent strip search procedure, in the circumstances that existed at that time, was unnecessary and beyond the power of the police to take that step.

I agree that the defence position may be so distilled, but consideration of the application requires attention to the complex array of facts to which the accused points in support of his position
I note that there were two searches of the accused, the first at the point when Constable Jackson and Constable Clarkson embarked upon that course when at the accused’s motor vehicle, and subsequently, when Sergeant Aishou is said to have alerted the other officers to behaviour of the accused prompting the decision to search the accused for an item or items suspected to be in his clothing. The second search would be properly described as a strip search.
The Crown noted that the conduct at the point of the initial arrest or detention was not the subject of complaint, but that evidence of the strip search and evidence of what occurred after the decision to strip search the accused was challenged as evidence obtained in consequence of impropriety or in contravention of Australian law.
The Crown submitted that the accused has not met his onus of persuasion that the subject evidence falls within the terms of s 138(1) Evidence Act 1995. Had he done so, it would then fall to the Crown to satisfy the Court that the evidence should nevertheless be admitted when applying the balancing test in s 138(1), bringing to account the matters set out at s 138(3) and any other matters that the Court considers relevant. The Crown cited Gilmour v Environmental Protection Authority [2002] NSWCCA 399 at [46], reported at (2002) 55 NSWLR 593 and (2002) 134 A Crim R 466, however the court there was dealing with s 137 of the Act. Santow JA, with whom Hidden and Adams JJ agreed, wrote,

"46 As to whether the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act, the short answer is this. Even if otherwise it were the case that its probative value in retrospect was outweighed by the danger of unfair prejudice to the defendant, the onus to have that evidence so excluded lay on the defence, who simply did not invoke s137 at trial. Clearly the onus to have such evidence excluded lies on the defence. Self-evidently this is because it is only the defence that can point to the danger of unfair prejudice, to be weighed against any probative value".

The judgement makes no reference at all to s 138 Evidence Act 1995.
In Kadir v The Queen [2020] HCA 1 reported at (2020) 267 CLR 109, upon which the accused relies, their Honours wrote,

"11. Section 138 is modelled on cl 119 of the draft Bill proposed by the Australian Law Reform Commission ("the ALRC") in its final report on the law of evidence ("the Final Report”) [18]. With one alteration, cl 119 mirrors cl 116 of the draft Bill appended to the ALRC's interim report ("the Interim Report”) [19]. The ALRC proposed that the admissibility of improperly or illegally obtained evidence should be governed by a modified form of the common law exclusionary public policy discretion articulated in Bunning v Cross [20]. The two modifications that the ALRC proposed were to place the onus on the tendering party to justify admission and to clearly articulate the factors informing the competing public interests [21].
12. In the event, s 138 enacts a "discretion"[22] which is wider than the modified Bunning v Cross discretion discussed by the ALRC in the Interim Report [23]. Bunning v Cross is an exclusionary discretion that applies in criminal proceedings and requires the court to balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law [24]. Section 138 provides for the conditional exclusion of evidence obtained by, or in consequence of, impropriety or illegality in any proceeding to which the Act applies. Notably, the exclusion is not confined to evidence that is improperly or illegally obtained by police or other law enforcement agencies. The "discretion" conferred is to admit the evidence, should the court be persuaded that the balance of the competing public interests requires that outcome.
13. As s 138 is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally. In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt.
14. Recognition that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police raises a number of issues. Whether evidence has been obtained improperly in such a case is determined by reference to "minimum standards of acceptable police conduct"[25]. The standard by which the court assesses the impropriety of the conduct of private individuals is less clear. That question is not raised in these appeals; it is common ground that the surveillance evidence was obtained in contravention of Australian law".

To the extent that it is sought to rely upon paragraph [46] from Gilmour v Environmental Protection Agency ibid, dealing with s 137 of the Act, in support of the proposition that the accused in this trial has an “onus of persuasion” that the proposed evidence is caught by s 138(1) of the Act, the argument is misconceived. Ss 137 and s 138 appear in Part 3.11 of the Act providing for discretionary and mandatory exclusions but have disparate purposes and application albeit that they are concerned with the proper and fair use of relevant evidence. Moreover, it could not be said that the impropriety or contraventions which the accused asserts were uniquely matters to which the accused might point. The accused did not give evidence on the voir dire but relies upon the evidence provided by the Crown in the statements and recordings which the accused tendered on the voir dire, supplemented by the evidence viva voce led from Senior Constable Jackson.
There are differences in recollection offered by the police officers, and between the recollection offered by Senior Constable Jackson in his evidence compared with aspects of his statement or what might be inferred from the expression of the facts there described. Issues of credibility and accuracy are matters for the jury to decide. For the decision I must make the task required is to consider the evidence adduced on the voir dire, and therefrom to decide whether the evidence upon which the Crown would rely in support of the elements of the offences charged was obtained in consequence of impropriety or a contravention of Australian law, which, if shown, excludes the evidence unless it is to be admitted in the exercise of the discretion for which s 138 Evidence Act 1995 provides: Kadir v The Queen ibid.

The decision to search and detain the accused and the accused’s vehicle

The Crown correctly submits that the evidence establishes the following sequence. I have included references to the initial traffic stop and the legislation empowering the Constable to detain the accused in those circumstances to provide the entire sequence of the interaction between the accused and the police, noting that the accused abandoned that part of the application alleging that there was an inappropriate exercise of that function.

Constable Jackson observed the worn tyre on the accused’s vehicle and resolved to stop the vehicle for a roadside inspection in the exercise of his powers given in s 76(1) Road Transport Act 2013. [3]
3. (1) A police officer, …, may inspect a registrable vehicle (whether or not on a road) for the purpose of deciding its identity, condition or ...

When stopped Constable Jackson viewed the tyre with the accused and commenced an infringement notice for driving a vehicle with a worn tyre on the MobiPol device. He entered the accused’s details, which brought up a screen indicating in respect of the accused intelligence reports, charges, and events.

A roadside random breath test was negative for the presence of alcohol. Constable Jackson decided to administer a roadside oral fluid test for the presence of prohibited drugs and made a radio call for other police to bring a testing device to the scene as he had depleted his supply.

Constable Jackson stepped away from the accused as he examined the MobiPol device which disclosed that the accused:

Had multiple charges for possession of a prohibited drug, the most in October 2019.

Had multiple charges for driving while illicit substance is present, the most recent in March of 2020.

Had an intelligence report from February 2020 when found in possession of amyl nitrate which he admitted he used to amplify the effect of drugs.

Constable Jackson denied foreknowledge of these matters. From the information he suspected the accused might possess prohibited drugs. In his evidence at page 19 (my emphasis):

“Q. So, having seen those reports, do you form a view about the accused?
A. Yeah, so, obviously, Crown Street is what joins the inner west to Surry Hills, or to the eastern suburbs, it's a it's a main thoroughfare, or a main arterial road. Obviously, there's a, an intelligence there that I read that's a first-person conversation between the accused and a police officer, that was from earlier the same year, where he admitted drug use on a on a regular regular drug use. And then, when I went through his events, there's a consistent theme of driving with present in oral fluid, there was possession and supply matters, and that carried from 2020 all the way back to 2016 for all possession and illicit illicit fluid matters.
Q. So, at that time, did you form a determination to do anything towards the accused?
A. Yeah, I did, yeah. I was satisfied that due to the intelligence that was there about the self-admitted drug use, as well as the fact that many many interactions where he'd been charged with possess, supply and oral fluid, I decided that I was going to search the vehicle and the accused for illicit drugs”.

He announced his name and informed the accused of his suspicion and his intention to search the accused and his motor vehicle.

The Crown referred to s 21(1)(d) Law Enforcement (Powers and Responsibilities) Act 2002 empowering a police officer without warrant to stop, search, and detain a person if the police officer suspects on reasonable grounds that a person has in their possession a prohibited drug, and s 36(1)(e) of the Act empowering the search of a vehicle in similar circumstances of suspicion.

After announcing his intention, Constable Jackson observed the accused chewing a substance which he suspected was a prohibited drug. He was not satisfied with the explanation the accused provided.

At page 21 of the transcript Constable Jackson told the Court (my emphasis).

“A. when I was at the academy six years ago, five and a half years ago, they taught us a principle called the "This Principle" which is Time, History, Intelligence and Situation. And they said to us I apply that to all my searches and they said that there was history which is what I had I had intelligence, which was the first-person conversation, and then, situation was obviously the something in his mouth, and a story that wasn't consistent with what he was telling me.
Q. What did you suspect he was chewing?
A. Well, as I didn't see him chewing anything, and then, I turned my back and turned back and he was chewing, I believed he'd either I believed he'd discarded a prohibited drug in his mouth.
Q. And did that change your view about whether he was possibly in possession of a prohibited drug?
A. I'd already formed the opinion, but it which I'm I'm I'd already stated to him that I was going to search him, however, it just added to my reasonable suspicion”.

The Crown referred to paragraph [15] in the judgement of McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA 336. In respect of an action for false arrest and false imprisonment her Honour considered s 3W Crimes Act 1914 (Cth) empowering arrest without warrant and wrote:

“15 The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:

(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);
(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;
(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
(5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);
(6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116);
(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;
(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ".

The accused submitted that the decision to search was based solely on Senior Constable Jackson’s awareness of the accused’s criminal history. The Crown found no authority for the proposition that a belief, solely aroused by knowledge of prior convictions, cannot constitute the basis for a reasonable belief, and submitted that the proposition seemed to conflict with the fourth and eighth principles identified by McColl JA in Hyder v Commonwealth of Australia ibid.
I do not agree entirely with this observation. Proposition (4) specifies the need for some factual basis for either the suspicion or the belief; that the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; and the materials must have some probative value: Proposition (8) asserts that the information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. Whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it. It is the character of the circumstances which must be consider and whether they would lead to the specified inference.
Her Honour’s propositions (4) and (8) do not suggest that information such as a past criminal record would of itself be sufficient to ground reasonable suspicion, but I accept that drawing upon the principles which she summarised for these propositions an antecedent criminal history might support reasonable suspicion if illuminated by the context and circumstances in which it is assessed.
Her Honour said in proposition [8] (citations omitted),

“The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it...”.

Nonetheless, so the Crown submitted, the proposition advanced by the accused was not upon an accurate understanding of the evidence led in the voir dire, which was that the officer’s suspicion was initially informed by both prior convictions and intelligence that related to accused’s possession of a prohibited drugs and driving with prohibited drugs in his blood. These were, the Crown submitted, relevant to the asserted suspicion that on this occasion the accused was in possession of a prohibited drug. The information relied upon by the Senior Constable was not expressed as a suspicion held by another officer but was with respect his prior convictions and assertions attributed to the accused by an officer in previous dealings, and opinion expressed in the intelligence which Senior Constable Jackson weighed according to his evidence reaching the decision to search the accused and the vehicle.
The Crown submitted that this was not the sole source of facts ultimately informing Senior Constable Jackson’s suspicion, for he saw the accused eating after he was told not to do so, saw residual material on the accused’s face, which he suspected was a prohibited drug, and found no support for the explanation given by the accused that the item was a Mentos sweet including that there was no wrapper for that found in the vehicle or in the bag of rubbish suspended from the gear selector in the vehicle to which the accused directed the police.
The Crown submitted, correctly in my opinion, that the state of mind of reasonable suspicion required before the searches of the accused and the car was justified, which should be assessed within the fluidity of the evolving circumstances, and that the suspicion might be reinforced or eroded by additional facts as they become known. In this instance the suspicion was reinforced by the observations made of the accused eating with a white residue on his face, and an inconsistent explanation given as to what he was eating.
The Crown submitted that this is not a case of impermissible post-justification resting upon facts discovered in the exercise of the power, a proposition which upon the evidence was not Senior Constable Jackson’s mindset. Moreover, the Crown did not rely upon the discovery of methylamphetamine and gamma-butyrolactone (which were later analysed to be the substances found in the vehicle) or a glass ‘ice pipe’ on the accused’s person to support the argument that the searches and the accused’s detention were lawful.
To summarise, the Crown submitted that the facts considered by Senior Constable Jackson afforded more than reasonable grounds to suspect the presence of prohibited drugs on the accused’s person or in his vehicle, fortified by his observations of the accused eating with something chalky and white and his demeanour when dealing with police.
I agree with this submission.

The strip-search procedure

The Crown noted the accused’s contention that there was no reasonable basis to strip search the accused. The contention did not include that the strip search was conducted in a manner that of itself was improper or unlawful. The Crown submitted correctly in my opinion that the images of the search demonstrated that the privacy and dignity safeguards required by s 32 Law Enforcement (Powers and Responsibilities) Act 2002 as were the requirements for a strip search provided in s 33.
I have not overlooked that the accused was handcuffed and removed from the rear of the van to ensure the accused had nothing in his underpants after he refused to allow that part of the strip search in the rear of the van.
The Crown submitted that the accused was subjected to the strip search following his arrest for the following purposes:

Suspected possession of prohibited drugs contrary to s 10(1) Drug Misuse and Trafficking Act.

For conveyance to a police station for oral fluid samples following the positive oral fluid test conducted at the roadside.

The exercise of the power to search after arrest provided in s 27(1) Law Enforcement (Powers and Responsibilities) Act 2002.

The search power given in s 27(1) of this Act is given to a police officer who arrests a person for an offence, or who is present at the arrest, to search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so to ascertain whether the person is carrying anything:

that would present a danger to a person, or

that could be used to assist a person to escape from lawful custody, or

that is a thing with respect to which an offence has been committed, or

that is a thing that will provide evidence of the commission of an offence, or

that was used, or is intended to be used, in or in connection with the commission of an offence.

Section 27(2) provides that the grounds for the taking a person into lawful custody, otherwise than for arrest, are more limited but may be exercised if the officer suspects on reasonable grounds that it is prudent to do so to ascertain whether the person is carrying anything that would present a danger to a person, or that could be used to assist a person to escape from lawful custody.
Section 31(b) of the Act provides that an officer may conduct a strip search if, in the case where the search is carried out other than in a police station or other place of detention, the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.
The Crown pointed to Senior Constable Jackson’s evidence of his reasons for administering a strip search, in examination at chief during the voir dire at page 28, line 19, however the defence submissions ultimately are that the strip search was commenced at an earlier point in time, from which it would follow that the Constable’s evidence from line 19 in page 28 does not provide the complete picture.
I refer to the evidence beginning at page 26. The Constable was asked questions regarding roadside testing of drivers for the presence of drugs and then to describe the accused’s demeanour when he was confronted with the drugs found in the car. He said he believed he saw the wipe test applied to the accused’s tongue, and at page 26 line 34 the following appears:

“Q. It's the case that the accused was at some point taken for a strip search. Do you recall that?
A. Yes, that's correct.
Q. Do you know who it was that had decided that a strip search should be employed.
A. I think it was numerous officers on scene, but it was conducted by Senior Constable Clarkson.
Q. Did you take any part in the strip search procedure?
A. I think I was present for a portion of it, but I offered no directions in relation to removal of the clothing, and I didn't search any of the items of clothing that were removed.
Q. That was conducted in the rear of the police van that you said had attended.
A. That's correct. I believe, um, it was, um, maybe Surry Hills 15, I'm not 100%. I'm only just going off the call.
Q. What sort of vehicle was it?
A. It was a Hyundai iLoad with a double opening rear door with a police secured cage in the back.
Q. You observed that he was in the back of the vehicle.
HIS HONOUR
Q. Sorry, just describe that vehicle again for me.
A. It's like a van that's got a section in the back that's insulated with, like, a cage. We call them cage trucks.
Q. Not like the ones with the pod on the back?
A. No, no. It's actually an enclosed van where the cage forms part of the back.
SOLICITOR ADVOCATE
Q. Analogous to a delivery van.
A. Yes, very similar, yes, but it's enclosed with a specifically designed police cage inside that van section.
Q. Did you see him come out of the back of the van?
A. At which point? At all?
Q. He was in there for a strip search?
A. Yeah, correct.
Q. Did you see him come out of the van?
A. Yeah, I did.
Q. Can you describe what you observed when he was coming out of the van?
A. He was protesting again about the lawyer, but I know that not all of his items of clothing had been removed at that point.
Q. Do you understand what the reason for him being removed from the rear of the vehicle was?
A. I believe in order to secure the handcuffs and then convey him to the police station.
Q. Do you know why he was to be handcuffed?
A. And put back in the truck?
Q. Yes.
A. Yeah, because the strip search hadn't been completed. We weren't sure if he would have access to anything inside the cage truck, and from where we were back to Surry Hills was approximately a five to 10 minute drive.
Q. Are you aware if he was handcuffed when he was in the back of the van participating in the strip search?
A. Possibly.
Q. Do you have an independent recollection of it?
A. No, I don't. I can't remember.
Q. You do recall that he was to be handcuffed‑‑
A. Yes.
Q. ‑‑and then conveyed to the station?
A. Correct.
Q. You said so he would have access to things in the van, I think was your evidence.
A. Sorry, access to things that were in the items of clothing that hadn't been searched yet.
Q. Why was that a concern? In your mind?
A. My concern, obviously I wasn't there for the whole time, but my concern would've been that, if he was outrightly refusing to complete that search and he was given the option to either the underwear or simply move them, so we could check the contents and make sure there was nothing there that shouldn't have been. If he was protesting and that wasn't able to be completed, we weren't able to ensure that there wasn't something in there, either it could have been a weapon, it could've been drugs, you know, and the inherent risk of that is he could hurt himself, or he could ingest drugs, and then be ill because we don't know what it was, or how much he ingested.
Q. Did you have reason to believe that he may well ingest drugs on his person if he was left in the van?
A. Only for the previous interaction that he put something in his mouth when my back was turned.
Q. Once he was out of the van, what occurred after that?
A. He offered some resistance when we tried to put the handcuffs on. I then turned him around and placed him against the rear of the cage truck to hold him still while the handcuffs were reapplied. At that stage it got a bit out of control.
Q. We'll go through it in stages.
A. Yep”.

The Crown referred to further evidence at page 38 line 10 but to provide context I shall refer to the evidence leading to that point beginning at page 37 line 29:

As noted in, Pearse v Pearse (1846) 63 ER 950 at 957, “truth, like all good things, may be loved unwisely, may be pursued too keenly, may cost too much”. It is contended by the Accused that in this case, where the conduct of the Police is of such nature that there is a need for discipline, an exacting standard and a stern application of the law by the Court, lest there be the appearance that the Court is condoning that conduct (see R v Elliot (No. 1) [2022] NSWDC 327 per Grant DCJ at [23] when dealing with section 138).
The only thing that urges in favour of the admission of the evidence is that it is necessary to afford the Crown an opportunity to prosecute an alleged assault upon Police who otherwise are the authors of their own contraventions. That the matter resulted at all in what is depicted on the evidence as a result of a roadside stop that involved an unlawful search, is itself all the more reason for the exclusion of the evidence”.

This submission is focused upon the operation of s 138(2) and the exercise of discretion to admit the evidence that might otherwise be excluded by force of s 138(1) of the Act. It extends across the entire spectrum of events, but with focus upon the criticism of the arrest, search, and seizure, ultimately blending with that the alleged assaults for which it appears that the police should be held accountable.
The submission might be read as challenging the Crown’s position that the exercise of discretion would have the evidence admitted, and as urging that exclusion of the evidence be maintained with the result that when the evidence of all that went before the alleged assaults is denied to the Crown it will be left unable to meet the burden of proof it has to show that the accused was not acting in self-defence against police acting beyond their powers but engaged upon an unlawful trespass.
Upon this analysis, the accused might also be disadvantaged if the evidence of all that went before is excluded with loss of the basis for his argument that the police were guilty of impropriety or acted in contravention of the empowering Australian laws. When this was suggested during argument counsel suggested that cross examination of the police would allow those features upon which the accused would rely to be elicited. I indicated my view that this was not appropriate, for if it was material upon which the accused would rely the Crown ought to be permitted to lead the evidence if it wished.
Hence my proposition that the “fruit of the poison tree” argument perhaps ought to have been extended to support exclusion all evidence that the Crown might wish to call.
As to the roadside drug test it is conceded that the Constable had the power to conduct it, although the reasonableness of requiring the accused to wait for over 15 minutes for a test kit to arrive might be questioned. It is not suggested that the roadside drug test or what flowed from that was a consequence of the illegal search.
However, it is said that the roadside drug test which was positive for methylamphetamine gives rise to other considerations. According to the evidence Senior Constable Prince performed the test, but thereafter Senior Constable Jackson intervened and handled the drug test in several ways contrary to the Standard Operating Procedures for Random Oral Fluid Testing. This is referred to in Senior Constable Jackson’s evidence at pp 101-103 of the transcript. He handled the test without gloves, after he handled without gloves the item said to contain methylamphetamine seized from the vehicle. The argument is that contamination was thereby possible, if not probable. There is no video recording of the test result, and the test was not retained. The evidence of the test result is limited to the observations of Senior Constable Jackson and Senior Constable Prince. There was no subsequent request for a blood test after what the presumptive test allegedly revealed, even though the accused was conveyed to hospital. The accused submits that the evidence of the road drug test and opinion evidence as to its result be excluded because of the high-risk of contamination leaving the evidence with little probative value outweighed the prejudicial effect it might have. Attention is invited to s 137 Evidence Act 1995. This provides,

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

It was pointed out Senior Constable Jackson’s evidence differed upon who determined that a strip search was to be undertaken. He had given evidence in chief that Senior Constable Clarkson made that determination. I was referred to his contrasting evidence in cross examination at pp 94 - 95 of the transcript.

“Q. 11:33:28, this is the point where you quite presciently tell the accused that he's under arrest for a positive drug wipe because it's going to come, and you suspect it's going to be positive as well as drug possession?
A. Correct.
DVD PLAYED TO COURT
Q. Who said, "In my opinion, a strip as well"? Was that you?
HIS HONOUR: I think was that, "In my opinion" or "We might give"?
ROWAN
Q. I heard it as, "In my opinion".
A. Yeah, I'm not sure.
Q. We can play it back.
DVD PLAYED IT COURT
Yeah, that was me.
Q. That was you?
A. Correct.
Q. Now, officer, I may have missed it, but had he actually been searched at this point in time?
A. Yeah, Constable Clarkson completed the search, yeah.
Q. So, you made a decision that a strip search is now to be undertaken?
A. Yes.
Q. I think you said yesterday that it was Constable Clarkson who made that decision.
A. I apologise. It was me. It was definitely me who made the decision. I think it was agreed upon, but I formed my own suspicion at that point. Whether they made their own, that's I guess that'll be part of their evidence, but I made the I clearly said, "In my opinion, we should strip search as well".
Q. What you meant by that is a strip search at the scene?
A. Yes, correct.
Q. Not taking him back to the police station and
A. That's not common practice, no.
Q. You meant to strip search him at the scene.
A. Correct”.

The accused submits that the opinion of Senior Constable Clarkson as to the reason for the strip search is irrelevant, if it was the decision of Senior Constable Jackson to search the accused, and that it is his reasons for that decision to which ss 31 – 34A Law Enforcement (Powers and Responsibilities) Act 2002 apply. Whether the Constables jointly came to a view that strip search was appropriate, or separately but contemporaneously did so, I do not accept that legislation requires that there be one officer responsible for the decision, to which the legislation is to be applied. The legislation would apply to the decision reached, regardless of whether it was by one or two Constables, and the conduct of the Constable who took on the task of performing the search.
S 31 provides the power to perform a strip search:

31   Strip searches
A police officer may carry out a strip search of a person if—
(a)  in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b)  in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

The following sections provide for preservation of privacy and dignity, rules for the conduct of a strip search, that there can be no strip searches of children under ten, and strip searches by consent. They need not be repeated here.
The accused submits that when the decision was made to conduct the strip search the accused, Senior Constable Jackson had informed the accused that he was under arrest for drug possession, and that he was under arrest for a positive roadside drug test not yet administered. He was told that he was to be strip searched for his own safety according to Senior Clarkson’s body worn video recorded at p 49 of the transcript.
Senior Constable Jackson said in evidence at pp 95-96 of the voir dire transcript:

Q. The decision to strip search was based on the items that you found; is that correct?
A. No, that's not correct.
Q. What was the decision to strip search based on?
A. My decision to strip search is the fact that I believe he ingested something while I wasn't looking and then as part of the rest of the search nothing else was located, so I wanted to ensure sorry, I'll rephrase that. As a result of the search of his person, no other items of interest were located. My concern was if he was going back to the police station, if that item had been secreted anywhere on his person, be it inside his underwear or under a garment of clothing that that rest of that item could be either ingested or otherwise disposed of whilst being conveyed back to a police station.
Q. It would follow then that on that logic time is of the essence that you strip search him immediately?
A. Not necessarily, no. He's under observation by multiple police officers and he's handcuffed to the rear.
Q. If he was to be escorted back to the police station to be strip searched he would still be under the observation of police officers, would he not?
A. Not all the time, no. There's one person driving a car and the other one acting as an observer, so, yes, there is a window in the back of the car but they wouldn't have undivided police attention between when he left the scene and when he arrived at the police station.

It is submitted that the mere fact that the Applicant was seen to be chewing on an unknown substance, some 10 minutes or so before the decision to strip search is made, even if there was a belief that it was an illicit drug, is not a reasonable ground to render such a search necessary because of the seriousness and urgency of the circumstances as required by section 31(b) Law Enforcement Powers and Responsibility Act.
I do not agree with this submission, considering the circumstances the evidence describes. I accept that in the circumstances of the accused’s arrest, to be thereafter conveyed to the police station, there was sufficient seriousness and urgency to require that the police ensure that there was nothing with which the accused might self-harm when alone in the rear of the vehicle. The Accused disputes the assertion made in paragraph 36 of the Crown written submissions. The Crown wrote,

“The Crown submits that the belief that the accused continued to be in possession of a prohibited drug, or a weapon would be reasonable grounds to perform a strip search to ascertain if he were in possession of such a substance prior to his being conveyed to Surry Hills station. The injury to the accused’s hand from the broken glass object being just such an outcome”.

Paragraph 27 of the accused’s further submissions noted that the Crown conceded that it was not disputed that the accused was injured, but as I understand the submission here that was because he was dragged from the vehicle where a strip search was being conducted. It was submitted that the accused to be given, immediately, physical treatment in the form of violence formed no part of Senior Constable Jackson’s pre-search thinking (unless he benefits from precognition of his own violence). The accused’s submission continued,

“Moreover, it is incorrect to suggest (as it apparently is seriously contended in paragraph 39) that the Accused had no right to resist the unlawful violence visited upon him as a consequence of his legitimate raising of objection to the conduct of the strip search”.

I find this submission confusing, perhaps conflating the injury to the accused’s hand after he was finally secured following the melee with when he was first removed from the rear of the van. According to the evidence, the accused was placed in the secure area in the police van, and in that position was seen to be bleeding by one of the police, whereupon steps were taken to remove him from the cage where, on the floor, remnants of a glass instrument were found.
I do not accept the submission as I understand it. It presumes a factual sequence that it is not consistent with the evidence as I perceive it. The decision by the accused to not allow the search of his underpants did not prompt any action other than to attempt to secure his hands behind him so that his underpants to which he denied access might be searched before transportation to Surry Hills police station for a search to be carried out there, which would be the procedures followed in such cases.
The accused’s submissions refer to the absence of Crown submissions about the fact that the Accused had relevant objections to the conduct of the search or that it was not in accordance with the law. I do not know which of the searches this is concerned with, but regardless, I do not accept the premise upon which it is made. I am not persuaded that the accused had relevant objections to any of the searches that were undertaken or attempted. He could not be expected to understand or even have knowledge of the specific provisions to which counsel directs attention on his behalf, in which case whatever objections the accused might have to the search, there is no basis upon which to conclude that he was behaving as alleged because of his knowledge or understanding that the search was contrary to the law. This is so even if it had been the case that he was subjectively of the view that he was the subject of unlawful conduct.
In response to the Crown submissions (at paragraphs 9-18) regarding the evidence of the decision by Senior Constable Jackson to search and detain the accused and his vehicle based solely upon a record of past convictions, this is not the evidence. It is said that a decision to search based solely on past convictions conflicts with the judgement of McColl JA in Hyder v Commonwealth of Australia ibid. I do not accept that submission. The evidence of the reasons for the decision went beyond the past convictions and extended to the intelligence also provided by way of the device.
The accused argues that the fourth principle stated by McColl JA concerned the need for a factual basis for suspicion or belief, permitting that it may be based upon hearsay material including materials inadmissible in evidence, and the eighth principle concerned with the need to allow for an officer to act on information from another source, which is complementary to the fourth principle. It was submitted that neither permits nor otherwise allows for a Police Officer to form a suspicion based on a criminal record. In support it is said that this is so because, as each of the ten principles makes perfectly plain, the suspicion is not reasonable if it is merely informed by prior conduct.
As a statement of principle expressed so simply this must be inaccurate. Regardless, Constable Jackson did not have the accused’s criminal record alone. I noted earlier the extent of the information available to him, and available to any police officer who might come to deal with the accused with notification on the system of warnings, court appearances, and the product of face-to-face conversations between the accused and police who reported the information gathered as intelligence. The analysis that it is self-evident that a prior conviction does not amount to a basis to conclude that the same offence (or even a similar offence) is extant at the time of contact, with nothing more relevant to the events then occurring, and need for suspicion to arise from known facts occurring in the immediate incident and not at some past unrelated point in time, and that there were no current facts known to the officer giving rise to a basis for a current suspicion, ignores the facts that were before Senior Constable Jackson as the interaction unfolded, including reinforcement provided by the decision the accused made to ignore the instruction by the Constable not to eat, drink, or smoke, when he put something in his mouth leaving a residue on his face, followed by an explanation that it was a Mentos though it left no odour consistent with mint emanating.
I do not accept the submission crafted upon McColl JA’s second principle.
I do not accept the argument that the suspicion or belief advanced by Constable Jackson was nothing more than a bias toward people of a certain class, masquerading as an exercise of Police Powers.
The submissions referred to a decision of this court in In Winikerei v R [2022] NSWDC 250, where his Honour Neilson DCJ observed at [47]:

“He has also referred me to an unreported decision of Charteris DCJ of 12 August 2011 where his Honour pointed out that a bad criminal record was not grounds for a reasonable suspicion to stop and search somebody. Indeed, if a bad criminal record was such a reason to stop and search somebody, any person with a criminal history could be stopped and searched at any time by any member of the constabulary”.

Judge Neilson considered the decision of McClintock DCJ in R v Buddee [2016] NSWDC 422 noting that his Honour excluded the evidence of drugs found in a motor vehicle that was stopped and searched. Authorities to which McClintock DCJ referred are cited. These were offered in support of the proposition that the evidence before this court was of the class considered in the decisions summarised, consistent with Senior Constable Jackson utilising powers in name only, without the required standard of suspicion and belief which renders the exercise of power an abuse, unlawful and the basis to be excluded.
It is submitted,

“These authorities show that there is nothing unusual, exceptional or particularly special about a Court being asked to exclude, or indeed, proceeding to exclude evidence of the type here concerned. The authorities also show the importance to be placed upon procedural compliance in all circumstances, but especially those in the present case lest an impermissible trespass upon a person’s liberty occurs or, such trespass impermissibly spins out of control”.

The submissions continue with criticism of the Crown arguments upon what is said to be the proviso. The operation of s 138(2) Evidence Act 1995 is not by way of a proviso. I need not repeat my remarks upon operation of this section.
The submissions at this point I quoted earlier, but to summarise the Crown submissions are criticized in the following respects:

First it is said that the Crown submissions are blended and bely the truth that the assaults are impossible to prove if the evidence is excluded because the assaults would be presented as acts of self-defence. How that might ultimately evolve is not entirely clear in the way this submission is crafted, but submissions continue with the proposition that this underscores the importance of the principle that only lawfully obtained evidence be admitted lest a decision based upon unlawfully obtained evidence is reached.

Secondly, the greater the importance of the evidence to the fact in issue, the greater is the undesirability of admitting it if unlawful obtained because of the anathema of a Jury convicting a citizen based upon such evidence.

Thirdly, it is contended by the Accused that the conduct of the Police is of such nature that there is a need for discipline, an exacting standard, and a stern application of the law by the Court, lest there be the appearance that the Court is condoning that conduct.

Finally, the sole factor in favour of the admission of the evidence is to allow the Crown the opportunity to prosecute assaults upon Police who were the authors of their own contraventions, evolving from a roadside stop that involved an unlawful search, providing more reason for the exclusion of the evidence.

These submissions have merit only if the court came to the view that the police were not acting within the powers given to search the accused and his motor vehicle upon the suspicion aroused by the matters advanced by Senior Constable Jackson and were not acting within the powers given to them to perform a strip search to ensure that the accused had no item on his person with which he might self-harm. I find upon the evidence tendered on the voir dire that the police were acting within their powers and that the submissions therefore fall away.

Other Evidence

There was a wealth of evidence presented on the voir dire, though only Constable Jackson was called. In addition to his statements there were transcripts of the recordings captured by the body worn cameras, and statements from Constables Leonard, Glasson, Prince, and Sergeant Paul Aishou. There are also documents relevant to the injury to Constable Glasson’s hand, the incident log maintained by New South Wales Police, the certificate of analysis issued in respect of the drugs found in the accused’s car, a printout of the COPS event, and images of the accused’s car and the MobiPol screen.
There is no need to summarise all that evidence. I viewed the video recordings as they were played. As one might expect there were aspects of Senior Constable Jackson’s evidence that suggested inconsistency with what was recorded, and what he recalled when he prepared his statement and during evidence. Those are matters that did not generate any submissions of any substance.
Important though is the evidence anticipated from Sergeant Aishou. He did not record in his statement any assertion that the accused was adjusting his waistband, though in Senior Constable Jackson’s statement at paragraph 25 he asserts that he heard Sergeant Aishou say this. There is no recording of that assertion that I have been able to find in the transcripts of the body worn camera recordings.

Consideration

I do not accept the accused’s submissions with respect to Constable Jackson’s reference to the “THIS” analytical tool, as it was described. I accept that there is nothing of significance in the time when the accused was stopped for the traffic offence, and there was nothing in his manner of driving that otherwise attracted attention. However, to confine the use of intelligence and information to that which would prove forewarning that the accused would be in that place at that time, driving, with drugs in his system, or on his person, or in his car, is unnecessarily restrictive. The proposition as I understand it is that the intelligence and information available to the police officer by this system would be of no support for the decision to search the accused and his motor vehicle unless it was shown to be connected directly with the immediate circumstances of the time, when driving with illicit drugs in his blood, or on his person or in the car. True it is that the intelligence and information did not go so far, in the sense that it was not so precise to the immediate circumstances in which the constable came upon and commenced his interaction with the accused, but there was ample material from the MobiPol device in my judgement to support the suspicion that he might be found to be in possession of prohibited drugs, even though it did not identify specifically this occasion on 20 November 2020 or any time proximate to it.
The information was,

By way of the initial entry: LIKELY PURCHASING DRUGS IN INNER WEST PAC – FOUND WITH $650 CASH AND AMYL NITRATE – SELF CONFESSED MDMA/GHB USER

By way of the charge history: between 3 March 2016 and 31 March 2020 he was charged with six offences of possession of prohibited drugs, two of driving with an illicit drug in his blood, and one of supply prohibited drug.

By way of intelligence reported consistent with the initial entry which appears to be drawn therefrom: face-to-face contact with the accused which occurred on 17 February 2020 in Victoria Road, Marrickville when he was seen in a parked Toyota Camry registration XXX-455, then drove away to be followed because it was thought he was attempting to avoid the police officers, was stopped, was searched along with the car upon suspicion that he had prohibited drugs and with his consent, was found to have $650.00 cash, was found to have amyl nitrate which he said “makes the high better”, and confirmed that he took it with GHB and MDMA.

He was driving the vehicle on 20 November 2020 when stopped by Senior Constable Jackson.

There is no prosecution in this trial for any driving offence, or for the possession of the prohibited drugs, which would require consideration of whether the evidence thereof could be excluded, and if it could, whether in the exercise of the court’s discretion it ought to be admitted.
The significance of the challenges to the integrity of the seizure and management of the seized items, and obtained by way of the roadside drug test, are matters for the jury, considering the issues anticipated in the trial upon the charges of assault. The Crown case is that the accused assaulted the police in the proper exercise of their powers endeavouring to restrain him after he was removed from the rear of the police van refusing to allow the strip search to extend to his underwear. The Crown asserts that when it was decided to handcuff him to continue the search, before returning him to the van to take him to the police station, to obviate the risk that he might have drugs or an item with which he could self-harm or harm the police, he resisted violently prompting the need for greater physical control in resistance of which he perpetrated the assaults. Relevant to the consideration of the issues arising upon that analysis is the sequence of events from when the accused came into contact with Senior Constable Jackson, including when he at first provided a measure of co-operation until it was announced that he and the motor vehicle would be searched, from which point the recordings could support the argument that he resisted the search, and when handcuffed continued to resist with increasing vigour consistent with concern that there might be found the prohibited drugs which are alleged to have been discovered and later upon analysis confirmed to be so. True it is that the management of the exhibits seized on the face of things was less than appropriate, but the evidence of the search, seizure, and nature of the substances has probative value in these circumstances, the assessment of which by the jury will involve consideration of the inadequacy of the care with which the police dealt with those items.
Evidence of these facts, up to the point of the strip search, is evidence of circumstances providing the context in which it is alleged that the assaults upon the police occurred and taken in combination and not in isolation provide a source of basic facts from which the jury may, if they choose to do so, infer a purpose behind the accused’s decision to engage upon the violence of which he is accused. Each of those facts need not be proved beyond reasonable doubt for that purpose.
I find that the decision to strip search the accused was a reasonable one in the circumstances. I accept that there is evidence of the belief that the accused had ingested a substance, with residue on his face, which did not emit odour on his breath of mint. It was believed that he did this after and notwithstanding that he was told not to eat, drink, or smoke, pending the roadside drug test. Sergeant Aishou was attributed with the statement that the accused was manipulating his waistband. Though it appears there might be an issue about whether that was said and if so by whom, it was part of the information that prompted Senior Constable Jackson according to his evidence to make the decision that a strip search was appropriate, in addition to the seizure of the items from the vehicle believed to be prohibited drugs. It was in my opinion a sensible course to conduct a strip search to ensure that when alone in the rear of the police van the accused would not have access to any item with which he could self-harm as he was taken to the police station. These circumstances were sufficient to allow the conclusion that the strip search before the accused was conveyed to the Surry Hills police station was necessary and ought to have been performed urgently when the accused was controlled and thereby constrained from the vigorous resistance on which he had engaged.
The argument regarding the evidential value of the positive roadside drug test there was referred to opinion evidence to which it related. I do not agree with that description. The evidence is that a test was administered and it gave a result. The result was exhibited on the device. This is not evidence of opinion as to the result, but direct evidence of the observation made of the reading obtained by the device, which in the normal course of things would have resulted in a further test at the police station for evidence of the existence of the prohibited drug indicated by the test result. The evidence is not presented in proof of the fact that the accused drove with an illicit drug in his blood, but that the roadside test revealed the possible presence of the illicit drug and no more. The bare fact that Senior Constable Jackson handled the item after the test, and did so without gloves, after he handled the plastic bag containing what was later found to be methylamphetamine, is a matter for the consideration of the jury in their assessment of the evidence of the roadside drug test, aided by such other evidence that might be expected in respect of the nature of the test device and whether there was in fact risk of contamination. There was no blood or urine analysis performed even though the accused was taken to the hospital, it would appear because in the sequence of events that followed including injury to the accused and his transportation by ambulance to hospital for treatment. It was not performed by the hospital as might have been expected and was not requested by the police. The reasons for this are unclear, but it does not follow in my opinion that the probative value of the evidence is outweighed by unfair prejudice. How the jury might misuse the evidence of the observation made of the test device reading is not made clear and is difficult to discern. It would have been preferable to have the test retained. It was discarded, as would be the case if the further test or blood and urine analysis was performed. The fact they were not does not diminish the evidence of the observations made of the test result at the roadside. Nonetheless, the factors which are urged by the accused are relevant to the decision required of the jury as to the weight to be attributed to the evidence as one of the circumstances in support of the Crown case that the accused was violently resisting the efforts of police to effect his arrest, during which it is alleged that he assaulted three of them.
I am not persuaded that use of the evidence of the roadside drug test, and of the observations made of the results of the test displayed on the device gives rise to unfair prejudice, but if it were found that it did, it does not outweigh the probative value of the evidence.
I do not accept the argument advanced regarding the decision made to carry out the strip search. The strip search was executed by Senior Constable Clarkson, recorded by Sergeant Aishou. He asserts that he made the decision for the reasons he identified. It is true that the evidence is also that Senior Constable Jackson reached the conclusion that there should be a strip search. Upon the evidence presented it is not of any significance in my view if both constables reached the same conclusion, whether jointly or individually.
I am not persuaded that the impugned evidence ought to be excluded as the consequence of impropriety or in contravention of Australian law, upon the application of s 138(1) Evidence Act 1995. If this view is found to be in error, bringing to account the matters provided in s 138(2) of the Act, I would exercise the discretion provided in favour of admitted the evidence for it is more desirable to do so than to not admit it.

Orders

The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused.
To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application is refused.

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Endnotes

(2) A registered operator or owner of, or any person in charge of or having the custody of … the registrable vehicle must afford the police officer … all reasonable facilities for making such an inspection.

Maximum penalty—20 penalty units.

(3) Without limiting subsection (1), for the purposes mentioned in that subsection and in connection with any inspection, a police officer or Transport for NSW may—

(a) enter in or on the vehicle on a road, or

…

(7) In this section—

“inspect”, in relation to a registrable vehicle, includes observe the vehicle’s performance, with or without the use of instrumentation.

Decision last updated: 06 December 2022

Medium Neutral Citation:	R v El-Kahil (No. 1) [2022] NSWDC 606
Hearing dates:	19 – 21 & 25 July 2022
Date of orders:	15 November 2022
Decision date:	15 November 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused (2) To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application is refused
Catchwords:	CRIME — Violent offences — Resist/Hinder police officer in execution of duty CRIMINAL PROCEDURE — Evidence — Admissibility CRIMINAL PROCEDURE — Trial — Voir dire
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Forensic Procedures) Act 2000 Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Regulation 2021 Evidence Act 1995 Firearms Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Police Powers (Vehicles) Act 1998 Road Transport Act 2013 Weapons Prohibition Act 1998
Cases Cited:	Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Bales v Parmeter (1935) 35 SR (NSW) 182 Gilmour v Environmental Protection Authority [2002] NSWCCA 399 Hyder v Commonwealth of Australia [2012] NSWCA 336 International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 New South Wales Crime Commission v Vu [2009] NSWCA 349 Pearse v Pearse (1846) 63 ER 950 Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 R v Basha (1989) 39 A Crim R 337 R v Buddee [2016] NSWDC 422 R v Elliot (No. 1) [2022] NSWDC 327 R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 R v Tillett; Ex parte Newton (1969) 14 FLR 101 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Winikerei v R [2022] NSWDC 250
Texts Cited:	International Covenant on Civil and Political Rights
Category:	Procedural rulings
Parties:	Rex (Crown) Robert El-Kahil (Accused)
Representation:	David Phillips (Crown Prosecutor) Leah Rowan (Counsel for the Accused) Director of Public Prosecutions (NSW) (Crown) George Sten & Co Criminal Lawyers (Accused)
File Number(s):	2020/00331724