NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR DANIEL KARLSSON V/S OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS CASE

Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. On 9 August 2024, after a contested hearing before Magistrate Nash in the Local Court, the Offender, Mr Karlsson, was convicted of two offences arising from events on 3 October 2023 at Potts Point.

1) Sequence 1, hinder police in the execution of duty contrary to s 61AA Crimes Act 1900 (NSW) and

2) Sequence 6, use offensive language in a public place contrary to s 4A Summary Offences Act 1988 (NSW).

2. Mr Karlsson appeals to this Court pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) which appeal is a rehearing on the certified transcripts before the Local Court (Charara v The Queen [2006] NSWCCA 244 at [17]). The task for this Court on appeal was explained with clarity by McCallum J in Lunney v Director of Public Prosecutions [2021] NSWCA 186 at [18]. Whilst there is no need for appealable error to be identified, the Court's task is to assess for itself the evidence and competing submissions giving due weight to any advantage the Magistrate may have had and form its own opinion as to the correct outcome of the case and if that outcome is different from that determined by the Local Court then the appeal should be allowed.

3. The essential facts are not in issue.

4. On 3 October 2023, Mr Karlsson volunteered to police officers, including Constable Moriarty, that he did not have a ticket to travel on public transport, for which offence he has pleaded guilty and been sentenced. That conviction and sentence is not the subject of the appeal.

5. What happened after Mr Karlsson confessed the fact that he did not have a valid ticket, is Constable Moriarty asked the Offender questions as to his identity, and having identified him, conducted a search on the police computer system which identified that Mr Karlsson had a history of some drug and property offences on his record. Constable Moriarty then asked Mr Karlsson a series of questions including questions to the effect of whether Mr Karlsson had any drugs on him to which he received an affirmative answer. As it turned out, the drugs Mr Karlsson had on him were legal, but nonetheless, what he said was reasonably taken by Constable Moriarty to be an admission that he had illicit drugs on him.

6. Constable Moriarty then told Mr Karlsson that he was going to search him which led to an unfortunate interaction between Mr Karlsson and Constable Moriarty, which led to the charges.

7. The Appeal essentially raises one issue of law. On behalf of Mr Karlsson, it is submitted that all of the evidence of the interaction between Mr Karlsson and Constable Moriarty should have been excluded pursuant to s 138 of the Evidence Act 1995 (NSW) ("Evidence Act") because it was either improperly or illegally obtained. The threshold question of law is whether s 138 was engaged because of some illegality or impropriety on the part of Constable Moriarty.

8. It is submitted on behalf of Mr Karlsson that after the police identified Mr Karlsson and had his admission that he was travelling on public transport without a ticket, he should have been free to go but instead he was unlawfully detained and asked a series of questions irrelevant to the transport offence, the answers to which showed him as being potentially in the possession of illicit drugs. He was not cautioned in any way before answering those questions which again is said to be, if not a breach of the law, an impropriety as contemplated by s 138.

9. The totality of Constable Moriarty's conduct in detaining Mr Karlsson and asking the questions and obtaining the answers about drugs is said to be unlawful, i.e., the detention and the questioning and therefore, so the submission goes, all of the evidence that was obtained thereafter ought be ruled inadmissible by route of the discretion provided for by s 138 and the Magistrate ought to have embarked upon considering that exercise of discretion.

10. The Magistrate concluded that there was no impropriety or contravention of any law and therefore took the view that s 138 was not engaged and thus did not embark on the discretionary exercise. The evidence was admitted and Mr Karlsson convicted.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c69be56c86cbd2dd57dda)

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