In New South Wales, Section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 empowers police to stop, search and detain you where they have reasonable grounds or a reasonable suspicion that you have committed an offence.
Laws regarding the search and seizure of property involve important public policy considerations and rights of citizens.
The requirement that the police have a genuine reason to look before conducting a search of a person or place is essential for a free and civilised society.
What is the meaning of ‘reasonable suspicion’ ?
In R v Rondo  NSWCCA 540, Smart JA reviewed the relevant authorities and concluded that the following propositions emerge regarding reasonable suspicion at :
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 or fear… A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
What is not ‘reasonable suspicion’ ?
Appearing nervous when approached by police.
Having a criminal conviction for an offence which is the same or similar to the offence that the officer claims to suspect the person of.
Being present in a known crime area.
It may be that a combination of these factors can form the basis of reasonable suspicion.
What if I consented to the search?
If the person gives informed consent to a police search, a police officer does not need a suspicion on reasonable grounds.
What if the search was illegal ?
Section 138(1) of the Evidence Act 1995 provides that, in civil and criminal proceedings, evidence that was obtained improperly or illegally ‘is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence’ given the manner in which it was obtained.
The Evidence Act provides a number of considerations that the court can take into account when ruling whether to allow into evidence illegally obtained evidence.
The court can take into account:
(a) the probative value of the evidence.
(b) the importance of the evidence in the proceeding.
(c) the nature of the relevant offence.
(d) the gravity of the impropriety or contravention.
(e) whether the impropriety or contravention was deliberate or reckless.
The court may rule that the evidence of the search is inadmissible.