A Sydney judge says the way the New South Wales police force defended a claim it unlawfully strip-searched a woman at a music festival – including a last-minute admission – was “of grave concern to me”.
Justice Dina Yehia made the comment in the NSW supreme court during closing arguments in a class action against the police.
The state of NSW has disputed that the vast majority of strip-searches conducted by police between 2018 and 2022 at music festivals were unlawful.
NSW police did, however, admit in court documents before the hearings began last week to unlawfully strip-searching the lead plaintiff, Raya Meredith, at a music festival in 2018.
Meredith is the lead plaintiff of a group of 3,000 people, including children, searched by police. She was strip-searched at the 2018 Splendour in the Grass festival after a drug dog sniffed in her direction but then walked on.
The class action is being led by Slater and Gordon lawyers and the Redfern Legal Centre.
Julian Sexton SC, acting on behalf of NSW police, on Thursday disputed the plaintiff’s call for aggravated damages to be paid because of the force’s conduct during proceedings.
He argued aggravated damages could not be awarded because Meredith had not been recalled to give evidence about how she felt about NSW police’s conduct during the class action.
Yehia said in response she was “much more concerned” about the police having three iterations of its defence before backflipping shortly before proceedings began and admitting it did unlawfully strip-search Meredith.
“That is a matter, I’ll be quite honest with you, of grave concern to me,” Yehia said on Thursday.
The judge said she was concerned that the police defence suggested officers had formed a reasonable suspicion to strip-search Meredith based on “things like her demeanour, what was said outside the tent, and [the officers] recalling it was said outside the tent and not inside”.
“There is absolutely no evidence, unless you can take me to it and I’ve missed something,” Yehia said to Sexton.
“All I have is the officers’ statements that say either they don’t remember the search, or both that they don’t remember the search nor remember the lead plaintiff. In those circumstances, I’m just not sure how this could ever have proceeded in the way that it did with the initial pleadings.”
In the days before the hearing began, the state of NSW withdrew 22 witnesses, mostly police officers who had been due to contest Meredith’s version of events. That change led to the case being reduced from a scheduled 2o days to three days. It’s now run into a fourth.
Sexton argued that the defence was based on police “practice” in such instances, adding it was “not [based] on distinct recollections of somebody”.
Yehia said police suggesting there were “reasonable grounds” for the search due to Meredith’s physical appearance and body language were “specific matters relating to this plaintiff in circumstances where [the female police officer who searched her] not only doesn’t remember but, as far as I understand it, didn’t even make a notebook entry in relation to that interaction”.
Earlier in his closing argument, Sexton disputed the plaintiff’s lawyers’ claims that police had received “negligible” training in how to conduct lawful strip-searches.
“One might be forgiven for thinking that telling people what they’re actually having to comply with is a pretty good start when it comes to instruction and training,” Sexton told the court, referring to an officer training document.
He also pointed to statistics from 2016 to 2018 which he argued indicated there was not a “widespread use of unlawful searches”.
In 2016 there had been 172,000 searches, he said, of which more than 3,800 had been strip-searches. For searches overall, he said there had been 79 complaints and only four were sustained.
In 2017 up until November 2018, 4,000 out of 166,000 searches were strip-searches, he told the court. Only five complaints were sustained during this period.
Closing arguments were due to conclude on Thursday.
