Citation: R v Janel Anne Boekeman [2011] NSWDC 126
Court: District Court of NSW
Date: 29 August 2011
Judge: Judge Toner SC
Background
The appellant was arrested in the early hours of 26 September 2009 following a confrontation with police at a residential address in Armidale. She was transported to Armidale Police Station, where she was placed in a custody cell. Two earlier charges arising from the confrontation at the house had already been dealt with by the court on appeal, with convictions confirmed.
The remaining charge concerned an alleged assault of a police officer (Senior Constable Kentish) at the police station while he was conducting a search of the appellant in her cell. CCTV footage captured the key events, though without sound. The footage showed Kentish entering the cell, placing his hands on the appellant's neck, and striking her three times while another officer held her down. The appellant resisted during the search.
The appeal challenged whether Kentish was, at the relevant time, acting in the execution of his duty, which was a necessary element of the charge. Without that element being proved beyond reasonable doubt, the conviction could not stand.
Legal Issues
- Whether the search of the appellant at the police station was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
- Whether police complied with the requirements in LEPRA governing how searches must be conducted, including the obligation to inform the person of the reason for the search (s 201) and the requirement to preserve privacy and dignity (s 32)
- Whether the degree of force used during the search was reasonably necessary in the circumstances
- Whether the appellant's conditional consent to be searched (by any officer other than Kentish) was known to police and was operative
- Whether, if the search was unlawful, Kentish was acting in the execution of his duty at the time of the alleged assault
Decision
Ground 1: Lawfulness of the search
The District Court found that the Crown had not established beyond reasonable doubt that the search was lawful. Under s 23(1)(a) of LEPRA, police may search an arrested person if there is reasonable cause to suspect that the person is carrying something dangerous. The court found no reasonable basis for such a suspicion at the time the search was conducted in the cell. Because the lawfulness of the search was a precondition to finding that Kentish was acting in the execution of his duty, the Crown failed to prove a vital element of the offence.
Ground 2: Excessive force
Even if the search had been otherwise lawful, the court found that the force used was substantially beyond what was reasonably necessary. The appellant posed no apparent danger at the time, and there was no reasonable basis for police to believe otherwise. The application of force in those circumstances rendered the search unlawful on this independent basis.
Ground 3: Breach of the appellant's conditional consent
The court accepted that the appellant had consented to being searched, but only by an officer other than Kentish. It found that this condition and the consent itself were known to police, including Kentish. Kentish's insistence on conducting the search himself was a breach of that condition, providing a further basis on which the search was unlawful.
Ground 4: Failure to comply with procedural requirements
The court also found separate breaches of LEPRA. Kentish failed to comply with s 201(1)(c), which requires an officer to inform a person of the reason for a search. The reason given was either not a lawful basis for the search or not the true reason for it. The court further found that Kentish breached s 32 of LEPRA and the Commissioner's Instructions by failing to conduct the search in a manner that preserved the appellant's privacy and dignity, particularly given that another officer could practicably have performed the search instead.
Orders Made
- The appeal is upheld
- The conviction and penalty are quashed
- The charge is dismissed
Key Takeaways
- A conviction for assault of a police officer in the execution of duty requires proof beyond reasonable doubt that the officer was, at the time, lawfully exercising a duty. An unlawful search severs that connection.
- Under LEPRA s 23(1)(a), a search of an arrested person in custody requires reasonable cause to suspect the person is carrying something dangerous. The District Court found that suspicion must be grounded in the circumstances as they exist at the time of the search, not simply assumed from the fact of arrest.
- Where an arrested person consents to a search on a condition (such as that a particular officer not conduct it), and that condition is known to police, proceeding in breach of that condition renders the search unlawful.
- Failure to comply with the procedural requirements in LEPRA ss 201 and 32, including the obligation to state a lawful and genuine reason for a search and to preserve the detainee's dignity, independently rendered the search unlawful in this case.
- The level of force applied during a search must be reasonably necessary to the function being exercised. Force that is substantially disproportionate to any actual or reasonably apprehended risk can itself make an otherwise authorised search unlawful.
Legislation and Cases Referenced
Legislation
- NSW Crimes Act 1900, s.353A, 352, (repealed)
- Law Enforcement (Power & Responsibility) Act 2002, ss23, 24, 32, 201, 206, 208, 230 and, 237,
- Police Act 1990 ss.8 and,24
Cases
- Blacktown City Council v Hocking [2008] NSWCCA 144
- Botton v Winn Supreme Court of Victoria, Phillips J, unreported 18 December 1987
- Brazil v The Chief Constable of Surrey [1983] 3 ALLER 537
- Clarke v Bailey [1933] 33 SR NSW 303
- Leigh v Cole (1953) 6 Cox's CC 329
- Lindley v Rutter (1981) 72 CrimLR 1
- R v Naylor [1979] CrimLR 532R
- Woodley v Boyd [2001] NSWCCA 35