Expert legal advice is the vast majority of 4.3 million NSW personal and vehicle searches by police over past 20 years were unlawful

From ABC

The footage you’re about to see reveals the key moments when a routine stop-and-search by NSW police officers crossed into the unlawful — ultimately costing the state $320,000.

https://www.abc.net.au/news/2024-03-18/how-proactive-policing-quotas-sent-nsw-police-searches-soaring/103579210

This is the first time it’s been made public outside a courtroom.

Ebonie Madden was jailed for six months in 2020 after police searched her and a companion Dylan on a street in the suburb of Penrith in Sydney’s west.

This search was the basis for police charging Madden with resisting arrest, possessing a knife and theft. 

But a judge later ruled that it was unlawful. Here’s why.

The footage below comes from the body cameras attached to senior constable Michael Darnton and another officer who searched the pair. 

It shows that Dylan, not Madden, is holding the black bag that the officers confiscate and search.

Now comes the moment when senior constable Darnton finds a knife and makes the arrest.

Listen closely and you’ll hear Dylan say three critical words (“It’s mine, chief”) which the officers will later tell a court that they didn’t hear.

The footage also captures comments from a third officer Danielle Munt (“That’s what happens when you’re mouthy. You get searched”). Munt will eventually agree in court that the comments were “unprofessional”.

In December 2020, Madden won $320,000 after a judge found that Darnton did not have reasonable grounds to justify conducting a search, and the “clear inference is that Darnton’s motivation was other than a legitimate exercise of police powers”.

The judge also ruled Madden had been subject to malicious prosecution and false imprisonment. That ruling was upheld on appeal in February this year.

A spokesman for the NSW Police told the ABC: “The NSW Police Force will review the Court of Appeal judgement and consider ways to improve the way we handle such matters.”

But the problem runs far deeper than this one case, experts warn. And now, exclusive data that reveals Madden’s search is just one among millions conducted by NSW Police as part of a stats-driven strategy that has turbocharged police searches for across the state.

Only a tiny fraction of the 4.3 million person and vehicle searches conducted in NSW over the past two decades will ever be examined. But legal experts fear that in the lion’s share, police may have abused their powers.

“My experience is unequivocally … that a very vast number of those searches will have been unlawful,” says civil litigator and criminal lawyer Peter O’Brien.

“[Australia] has one of the largest per capita police populations in the world … so when there’s a quiet night, police often feel the need to be proactive.

“And what that actually means, in many instances, is that they are overstepping their mark.”

It’s a big call but UNSW Professor Vicki Sentas, an expert in policing practices, backs it.

“I do think that it’s likely that the vast majority of searches in this state are conducted unlawfully,” she told the ABC.