March 22, 2019

SJ v State of NSW – Client receives large settlement sum after tort claims

Keywords: Possession of a prohibited drug- section 10 (1), Drug Misuse and Trafficking Act 1985; Cautioning of people – section 139, Evidence Act 2011; assault; battery; and false imprisonment


SJ returned from shopping downtown to find a search warrant being executed on her residence in Forbes NSW. The warrant listed “prohibited drugs, property, currency obtained as a result of the supply of prohibited drugs, property stolen, or otherwise unlawfully obtained” as the subject of the search. Upon arrival at the residence, SJ was instructed to remain on the front lawn. Subsequently, SJ was directed into the lounge/kitchen area and instructed to sit on the couch. During this time, her shopping and bags were searched. Shortly thereafter, SJ was escorted into a bedroom and strip searched by three female officers. The door was not closed. SJ was not advised she was going to be strip searched, or the reasons why a strip search was necessary in the circumstances.

Following the completion of the strip search, SJ was escorted back to the lounge/dining room. The officers subsequently found a bud of Cannabis behind the microwave and proceeded to question SJ about it. During the questioning, SJ claimed ownership of the bud. SJ was then instructed to sit at the kitchen table until the search concluded, approximately 3 hours after SJ had first arrived at the residence. SJ was charged with possession of Cannabis. Despite inquiries into the cash found, and the seizure of some paraphernalia, SJ was not charged with any further offences.

At hearing, the Magistrate ruled a deemed arrest had occurred. Consequently, the failure to caution SJ resulted in her admission being inadmissible in accordance with section 139 of the Evidence Act. Unable to prove possession without the admission, the charge was dismissed. SJ commenced proceeding against the police in the District Court for false imprisonment, assault and/or trespass to the person, trespass to goods; and claims general, aggravated and exemplary damages.


O’Brien Criminal and Civil Solicitors successfully acted for SJ. The State of NSW denied liability for SJ’s claims. However, the State agreed to settle the case outside of court and paid a settlement sum inclusive of all costs and disbursements.

If you think that you have been unlawfully arrested or falsely imprisoned contact us for a free initial consultation. We are experts in this area of law and will be able to assist you in getting the best outcome for your case. Call us on (02) 9261 4281 or email