When “Reasonable Suspicion” Isn’t: R v Nguyen [2025] NSWDC 567
How a “fidgeting” driver and a hunch cost the Crown its entire case.
In a sharp ruling from the District Court, Wass SC DCJ has excluded almost the whole of the Crown case against Mr Nguyen — including over 60 grams of methylamphetamine and heroin — after finding that two officers from the Bankstown Proactive Crime Unit conducted a vehicle search without the reasonable suspicion required by ss 21 and 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Her Honour described the conduct, in the catchwords, as “lazy policing”.
The facts
On the night of 28 August 2023, Senior Constable Donaldson and Sergeant Azzi were patrolling Chester Hill and Villawood in an unmarked car. They saw a Honda — Queensland plates — perform an illegal U-turn at a Bass Hill intersection and turn into a motel driveway.
The motel was on their radar. Police intelligence said two people, a young woman and a man, were dealing methylamphetamine and heroin out of one specific unit. Mr Nguyen wasn’t in the intelligence. The Honda wasn’t in the intelligence. Neither was the unit linked to him.
The officers followed. They watched a woman walk briefly toward the driver’s side of the Honda, look toward police, and walk away. They claimed they saw Mr Nguyen “fidgeting” beneath the steering wheel — through a windscreen, at night, from somewhere between 1 metre (Donaldson’s account) and 15 metres (Azzi’s account).
Donaldson approached. Mr Nguyen produced his licence and was cooperative. A check revealed he was on parole for drug manufacturing. Donaldson then searched the car. The yield: 57.09 g of methylamphetamine and 3.2 g of heroin. A subsequent Cellebrite download of the phone produced further supply evidence underpinning four additional counts.
Wass SC DCJ excluded the lot.
The framework
LEPRA ss 21 and 36 require a suspicion held on reasonable grounds. The settled principles come from R v Rondo [2001] NSWCCA 540 and George v Rockett (1990) 170 CLR 104:
A reasonable suspicion involves less than a reasonable belief, but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension of fear of one of the state of affairs covered by the Act.
The inquiry is two-step: first, what grounds did the officer actually rely on at the time (a factual finding on the balance of probabilities); and second, were those grounds, objectively, capable of supporting the suspicion.
What went wrong
None of the asserted bases survived scrutiny:
- The motel. The intelligence concerned one room and two named individuals. Both officers’ evidence that the motel itself was “well known for drugs” overstated that intelligence in identical, telling ways.
- The “fidgeting”. Donaldson said the police car was within a metre, directly behind the Honda. Azzi said 10–15 metres. Her Honour preferred Azzi’s distance — which made the claim of seeing fidgeting beneath a steering wheel, through a windscreen, at night, “beggar belief”. And on Donaldson’s version, any fidgeting was readily explained by a man trying to reverse-park while boxed in by a police car.
- The woman. By the time of the search, Donaldson had spoken to her, taken her details, and run her through his device. “Nil adverse.” She had been excluded as a person of interest before the search began.
- The criminal record. Following Newlinds SC DCJ in Reyes-Carrion v State of New South Wales [2025] NSWDC 28 at [68], her Honour accepted that criminal record and intelligence — alone — will ordinarily not suffice.
Critically, what Donaldson actually told Mr Nguyen at the scene — captured on body-worn footage — was that he was being searched because of his drug history and because the motel was “really well known for drugs”. That contemporaneous statement was, her Honour found, the most reliable account of the officer’s reasoning. Donaldson himself conceded those grounds did not amount to reasonable suspicion. The other reasons surfaced only after the drugs were found.
The result was, as in R v Buddee [2016] NSWDC 422, a “random crime stop” — dressed up after the fact.
The s 138 balance
Once a contravention of LEPRA was established, the onus shifted to the Crown under s 138(1) of the Evidence Act 1995 (NSW). The probative value was high and the offences serious — both factors favouring admission. Several factors pulled the other way:
- The breach was, at best, reckless and possibly deliberate (s 138(3)(d)–(e));
- It infringed Articles 9 and 17 of the ICCPR — rights against arbitrary detention and intrusion (s 138(3)(f));
- No disciplinary action would be taken (s 138(3)(g)), leaving exclusion as the only mechanism to mark the contravention; and
- The officers had options — observe further, gather more, or seek a warrant — and instead “cut corners” (s 138(3)(h)).
Balancing the Bunning v Cross (1978) 141 CLR 54 considerations, her Honour found the Crown had not discharged its onus. The drugs and the phone evidence were excluded. Without them, the Crown effectively has no case.
Takeaways
For solicitors: the decision is a useful authority on what isn’t reasonable suspicion. Note particularly the weight given to the contemporaneous statement of reasons on body-worn footage, and the court’s willingness to discount post-hoc rationalisations advanced from the witness box. Reyes-Carrion is now reinforced at District Court level: criminal history plus generic intelligence will not, on its own, ordinarily suffice. Practitioners running s 138 motions should also note her Honour’s pointed criticism of officers sharing draft statements during preparation — a practice she found “highly irregular” and which materially undermined the reliability of the police evidence on the voir dire.
For everyone else: a person on parole has the same rights against arbitrary search as anyone. Police cannot lawfully search a citizen merely because they have a record and happen to be somewhere police find interesting. Even when police turn out to be right about what is in the car, that does not make the search lawful — and where the breach is serious enough, the courts will exclude the evidence, however damning. That, ultimately, is the point of s 138: to ensure that “the desirable goal of bringing to conviction the wrongdoer” is not pursued at the cost of curial encouragement of unlawful police conduct.