By Paul Gregoire and Ugur Nedim
On being approached by several New South Wales police officers in Potts Point on 3 October 2023, Daniel Karlsson admitted he did not have a ticket to be travelling on public transport. On hearing this admission, police constable Moriarty asked Karlsson to identify himself, and as the civilian did, the officer conducted a search of his name on the police computer system.
The search of the database revealed that Karlsson had a history of drug offences as well as property offences. Based on these prior convictions, Moriarty then asked Karlsson a series of questions, including whether he had any drugs on him, to which he answered in the affirmative. However, the substances Karlsson possessed were completely legal for him to have.
Despite this, Moriarty took his admission to mean he was in possession of an illicit substance, which was later found to be a reasonable assumption by the court. The constable then told Karlsson he was going search him, “which led to an unfortunate interaction” between the two men.
Karlsson’s resistance the search led to him being arrested and charged with hindering police and using offensive language in public. Another anomaly related to this incident that was later raised in court was that constable Moriarty failed to caution the suspect prior to questioning him, as is required under section 139 of the Evidence Act 1995 (NSW).
So, when Karlsson’s matter came before the NSW Local Court in August 2024, Magistrate Scott Nash considered that on hearing the civilian’s confession regarding drug possession, Moriarty then held a reasonable suspicion that the man might be in possession of an illicit substance, and if that had been the case, then the constable would have legitimately had reason to detain and search him.
Guilty as charged
On 9 August 2024, Karlsson pleaded guilty to the offence of travelling without a valid ticket on public transport, contrary to clause 77A of the Public Transport (General) Regulation 2017 (NSW), which carries a maximum penalty of a $550 fine, if the charge goes to court.
Most cases of fare evasion don’t go to court, however. Usually, an authorised transport officer or a police officer issues a person found not to have a valid ticket with an on-the-spot $200 fine of which they can pay at a later date.
When he went before the NSW Local Court, Karlsson also faced two more charges. The first was one count of hinder police in the execution of duty, contrary to subsection 60(1AA) of the Crimes Act 1900 (NSW). This offence carries up to 2 years imprisonment and/or a fine of $2,200.
The second additional charge the fare evader had against his name was one count of using offensive language in a public place, contrary to section 4A of the Summary Offences Act 1988 (NSW). This offence carries a fine of up to $660.
But if found guilty of offensive language, a defendant, instead of being fined, can be ordered to undertake up to 100 hours of community service, or have a community correction order imposed, which is a good behaviour bond that can last up to 3 years, and places restrictions on a subject living in the community, which can include conditions like a curfew and undertaking community service.
Magistrate Nash found Karlsson guilty of these two further offences, because he considered the constable had legally sought to search the fare evader, under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA), which requires an officer to hold a ‘reasonable suspicion’ to search a civilian.
The authority on reasonable suspicion in NSW law is the 2001 NSW Court of Criminal Appeal case R versus Rondo, which provides a two-step process to establish reasonable suspicion. Firstly, an officer must have a factual basis to hold a suspicion, and this can’t just be a belief, and secondly, if that factual basis is there and given the circumstances, the grounds relied upon must be reasonable.
No grounds for reasonable suspicion
Karlsson appealed his two extra convictions, hindering and swearing, to the NSW District Court on 7 May 2025, based on the sole ground that the evidence relating to the interaction between him and the constable that led to the convictions, should have been excluded from his case because it had been illegally obtained, as the civilian should have been free to go after admitting he had no ticket.
Karlsson based this on section 138 of the Evidence Act, which stipulates that evidence obtained “improperly or in contravention of an Australian law, or 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”.
On addressing the ground, NSW District Court Judge Robert Newlinds initially dealt with the question of whether evidence had been obtained illegally or through impropriety by the constable, as the magistrate had considered there were reasonable grounds for suspicion, and therefore, Moriarty had lawfully detained Karlsson to question and search him.
Magistrate Nash had detailed four points that led to his forming a reasonable suspicion to perform the search, which include Karlsson having looked “scruffy”, that the man was in the vicinity of “known drug location” Kings Cross, along with the details from the search of the MOBIPOL Police System and the admission made by Karlsson “to the effect that he did have drugs on him”.
Judge Newlinds found that the constable was entitled to take into account one of his grounds of suspicion, that Karlsson said he had drugs on him, as a valid reason to hold a suspicion. However, without that confession, the other three grounds – scruffiness, being close by Kings Cross and his criminal record – were not reasonable grounds to undertake a search, even when taken together.
The question on appeal then became whether “in the period leading up to the admission”, the constable had any reasonable grounds to suspect the civilian was in possession of illegal drugs up to the point of his confession in order to warrant his detainment, questioning and the searching of the suspect’s criminal history.
On cross-examination, the constable accepted Karlsson was not free to go during the questioning that followed the fare evasion issue having been dealt with and further, the reasonable suspicion the constable had only came into play after the man admitted to possessing drugs, which was after he should have been left alone.
“On that analysis, the detention of Mr Karlsson during the period when he made the admission was in my opinion unlawful in the sense that it was not a detention which could be justified by recourse to section 21 of LEPRA and therefore was a false imprisonment which is contrary to the law of Australia,” his Honour set out.
Failure to caution
Judge Newlinds further explained that on finding that Karlsson had committed a “transport offence”, Moriarty went fishing for an unrelated drug offence, and in doing so, the constable failed to issue a caution to the fare evader, as required by section 139 of the Evidence Act, which states that failure to caution a suspect prior to questioning amounts to evidence obtained improperly as per section 138.
Part 9 of the LEPRA also contains laws requiring the cautioning of suspects. An officer issuing an official caution does not have to follow a script, but they do need to convey that the suspect “does not have to say or do anything but that anything the person does say or do may be used in evidence”.
His Honour further explained that based on a lack of any adequate ground to hold a reasonable suspicion and the failure to caution the civilian prior to questioning him meant that the constable’s determination to search Karlsson had been “the product of improper and/or illegal conduct by the police”; in other words, was an illegal search.
The question of resisting police
Judge Newlinds then referred to Karlsson’s contention that as the search had been improperly carried out, the evidence that he had attempted to resist Moriarity’s search should also be excluded. This assertion raised the discretionary section 138 question, as to whether the improperly obtained evidence should be excluded or if it was more desirable to include at trial.
His Honour went on to explain that the usual scenario in a case triggering section 138 involves evidence, such as concealed illegal drugs or items, being discovered as a result of not following legal process. However, in this case, no such item was turned up, and rather, Karlsson had hindered police and used offensive language, which consisted of illegal conduct as he resisted a police search.
This meant that the convictions being appealed were not the result of the illegal or improper conduct of the constable detaining, questioning and searching the suspect, but rather due to Karlsson’s resisting an attempted search, which triggered the section 138 clause regarding evidence obtained “in consequence of an impropriety or of a contravention of an Australian law”.
So to ascertain whether the evidence relating to Karlsson’s conduct was a consequence of the constable’s impropriety, his Honour considered “an extremely broad ‘but for’ type test”. A ‘but for’ test is a civil law mechanism, which can factor into a criminal case when considering factual causation, and it is legislated in section 5D(1)(a) of the Civil Liability Act 2002 (NSW).
Basically, the ‘but for’ test comprises of the question as to whether the way the wrongdoer had transgressed the law had directedly resulted in the harm caused. So, in the case of Karlsson and Moriarty, the question comprised of whether the fare evader would have resisted police and used offensive language if the constable had not unlawfully detained, questioned and searched him.
And on considering the broad array of authorities on the ‘but for’ test, Judge Newlinds concluded that the best way to look at the current matter would be to consider the question of “expectation”, or whether the actions that led to the behaviour that Karlsson was convicted over might have be the type of actions one might expect given the circumstances.
The orders of the day
“I am satisfied… that the evidence of the resisting arrest and offensive language was obtained because of the conduct of Mr Karlsson which was the consequence of the illegality or impropriety that I have identified,” his Honour reasoned. “This is because I consider the reaction by Mr Karlsson to being searched was objectively something that could be expected.”
And on considering the discretion open to a judicial officer to accept evidence wrongly obtained if, as per section 138 of the Evidence Act, “the desirability of admitting the evidence outweighs the undesirability” of not admitting it, he found that Karlsson’s actual hindering and swearing was low-level conduct of its kind, and therefore, didn’t necessitate being dealt with by the courts.
So, on 7 July 2025, Judge Newlinds ordered that Karlsson’s convictions of hindering police and offensive language in a public place be quashed, and he found the civilian not guilty on both crimes.
