Judge's ‘grave concerns' in NSW strip search class action case
A judge presiding over the case of a woman suing the state of NSW over a strip search at a popular music festival has told the court she has 'grave concerns' about the conduct of the defence, who admitted after two years the search was unlawful.
Raya Meredith was made to undress in front of a police officer, lift her breasts, and remove her tampon during a 'humiliating' and terrifying strip search at the Splendour in the Grass music festival in 2018 that police later admitted was illegal.
The then-27-year-old is the lead plaintiff in a class-action lawsuit brought by Slater and Gordon and the Redfern Legal Centre against the state of NSW on behalf of more than 3000 people likely subjected to illegal strip searches from 2016-2022.
Ms Meredith's lawyer, Kylie Nomchong SC argued in her closing statements Tuesday and Wednesday that there was a failure on the part of 'senior echelons' of NSW Police to ensure proper training and supervision given to police doing searches.
Julian Sexton SC, who is representing the state of NSW, pushed back on claims by Ms Nomchong about police training and the findings of a report by the Lessons Learned Unit (LLU) following a complaint after a 2013 Mardi Gras afterparty.
Mr Sexton said the report, contrary to submissions by Ms Nomchong, did not represent an 'admission of widespread unlawful use of strip searches' or routine unlawful strip searches and instead only made 'recommendations about best practice'.
He went on to tell the court that out of 172,000 searches in 2016, 3850 were strip searches. Resulting from those searches were only 79 complaints, four of which were sustained, with a further two sustained complaints the following year.
'This demonstrates that there was a decreasing number of complaints sustained. There were only five complaints sustained in the period up until November 2018. That doesn't indicate a widespread use of unlawful searches,' Mr Saxton said.
He made similar claims about the 'very small number' of civil cases.
Justice Dina Yehia said the defence case and state of NSW's admission that Ms Meredith's strip search was illegal were of 'grave concern' during Thursday's hearing.
Justice Yehia told Mr Saxton before the lunch adjournment that 'the conduct of the proceedings in relation to the three iterations of defence that were initially relied upon, that is a matter, I'll be quite honest with you, of grave concern to me.
'All I have is three officers' statements that say either that they don't remember the search at all or both that they don't remember the search nor remember the plaintiff, the lead plaintiff in those circumstances,' she said, referring to Ms Meredith.
'I'm just not sure how this could ever have proceeded in the way that it did with the initial pleadings.'
Mr Saxton said the admission about the legality of the search was 'more accurate to say it was an admission based on the absence of proof' and police may have based their recollections on 'practice' rather than specific memory.
In response, Justice Yehia said: 'An assertion that the officer's assessment of the plaintiff's demeanour, physical appearance, body language and answers to questions while they spoke outside the tent is very specific.'
Under NSW law, strip searches – which are recognised as being 'highly invasive and humiliating' – are supposed to be undertaken within specific statutory guidelines, including preconditions of 'seriousness and urgency' that they be done.
Ms Nomchong told the court on Tuesday that not a single COPS event log contained why a strip search was necessary, and the general duties officers were 'defective in their understanding of the basis on which strip searches could be carried out'.
'They were not supervised. They were not trained. And, as a direct result, that is why my plaintiff was unlawfully strip searched … along with others who attended the music festival in 2018,' Ms Nomchong said in her more than six-hour statement.
Resuming on Wednesday, Ms Nomchong urged the court to award exemplary damages 'not only to express the court's disapprobation but because of the manifest breaches of the (Law Enforcement Powers and Responsibilities Act) by searching officers'.
Ms Nomchong went on to add 'but also because of the … manifest failures on the part of the senior echelons of the NSW Police Force responsible for both general and focus training for conducting strip searches' in the state at the time.
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