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District Court 18 September 2017

Daniel Fromberg v R

[2017] NSWDC 259

DrugsPublic order & justice offences
CRIMINAL LAW POSSESS PROHIBITED DRUG SEARCH STRIP SEARCH APPEAL NOT GUILTY CONVICTION APPEAL INTERPRETATION

Citation: Daniel Fromberg v R [2017] NSWDC 259
Court: District Court of New South Wales
Date: 18 September 2017
Judge: Judge AC Scotting

Background

The appellant was stopped by police late at night in Bondi Junction after riding his motorcycle without his helmet strap fastened. During the stop, the attending officer observed signs of possible drug use, confirmed the appellant had prior drug convictions, and learned he was on bail for manufacturing a prohibited drug. On this basis, the officer decided to search him.

The search began with officers checking jacket pockets and a bag. The officer then asked the appellant to unbuckle his belt and reached inside his jeans toward his underwear. The appellant pulled away and objected. The officer handcuffed him, then reached into his pants and pulled out his jeans and underwear, locating a small bag of methamphetamine (approximately 2.5g) resting inside the underwear above the appellant's genitals.

The appellant was charged with possessing a prohibited drug under section 10(1) of the Drug Misuse and Trafficking Act 1985 and was convicted in the Waverley Local Court. He appealed to the District Court, arguing the search was unlawful.

  • Whether the search conducted by police constituted a "strip search" within the meaning of section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), rather than the lesser categories of "frisk search" or "ordinary search"
  • Whether, if the search was a strip search, the officer had the requisite reasonable suspicion under section 31 LEPRA and complied with the procedural requirements in sections 32 and 33 LEPRA
  • Whether, if the search was unlawful, the evidence of the drugs found should nonetheless be admitted under section 138 of the Evidence Act 1995

Decision

Was the search a strip search?

The District Court found that the officer's conduct amounted to a strip search under LEPRA. A frisk search involves running hands over outer clothing; an ordinary search may require removal of outer garments such as a jacket or shoes. What occurred here went further: the officer reached inside the appellant's jeans and underwear and then physically pulled those garments away from the body to expose the contents. That conduct fell within the LEPRA definition of a strip search, which covers examination of the person's body beyond the removal of outer clothing.

Were the strip search requirements met?

Having classified the search as a strip search, the Court found the officer had not complied with the mandatory procedural requirements. Under LEPRA, a strip search must be conducted in a private area and must not involve examination of a person's genital area in the presence of multiple officers. The search took place on a public street in front of at least four officers, including officers of the opposite sex. The Court noted that alternatives were readily available: the appellant could have been taken to a police station, or a search could have been conducted in the rear of a caged police vehicle. The search was therefore unlawful.

Should the evidence be admitted?

The Court turned to section 138 of the Evidence Act 1995, which requires a court to consider whether the desirability of admitting improperly obtained evidence outweighs the undesirability of admitting it. The Court weighed the substantial probative value of the evidence against the seriousness of the contravention. The offence itself was not particularly serious: the quantity was small and apparently for personal use. By contrast, the police conduct was significantly and repeatedly non-compliant with clear statutory requirements. The officer appeared to believe he had powers he did not possess, and a straightforward frisk search would likely have generated lawful grounds to proceed to a compliant strip search. The Court declined to exercise the discretion to admit the evidence, finding the undesirability of admission outweighed the desirability.

With the drug evidence excluded, no evidence remained to support the prosecution case, and the conviction was set aside.

Orders Made

  • Appeal against conviction allowed
  • Conviction and penalty imposed by the magistrate set aside

Key Takeaways

  • The District Court held that reaching inside a person's jeans and pulling their underwear away from the body to expose genitalia constitutes a "strip search" under LEPRA, not merely a frisk or ordinary search.
  • Under LEPRA, a strip search must be conducted in a private area; conducting such a search in public, in the presence of multiple officers, breaches the statutory procedural requirements regardless of whether reasonable suspicion existed.
  • Where a statutory power authorises an interference with a person's body or liberty, it must be exercised strictly in accordance with its terms, as confirmed by reference to Henderson v O'Connell and Coleman v Power.
  • In applying section 138 of the Evidence Act 1995, the court weighed the gravity of the police departure from LEPRA's requirements heavily against admission, even where the evidence had substantial probative value.
  • A simple compliant frisk search was likely sufficient to generate reasonable suspicion for a lawful strip search; the officer's departure from the prescribed procedure was described by the Court as "disturbing" and not justified by the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001, s 18(1)
- Drug Misuse and Trafficking Act 1985, s 10(1)
- Law Enforcement (Powers and Responsibilities) Act 2002, ss 3, 21, 31, 32, 33
- Evidence Act 1995, s 138

Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- Henderson v O'Connell [1937] VLR 171
- Noordof v Bartlett (1986) 12 FCR 209
- Coleman v Power (2004) 220 CLR 1
- Kuru v State of New South Wales (2008) 236 CLR 1
- R v Rondo [2001] NSWCCA 540
- Parker v Comptroller General of Customs (2009) ALJR 494
- Addouj v R [2016] NSWDC 47
- Straet v Bauer NSWSC (unreported, 16 March 1998)