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District Court 6 December 2024

Walker v R

[2024] NSWDC 683

Assault & violencePublic order & justice offences
CRIME APPEAL FROM LOCAL COURT CHARGES UNDER S 58 CRIMES ACT 1900 WHETHER FIRST STOP UNLAWFUL UNDER LEPRA

Citation: Walker v R [2024] NSWDC 683
Court: District Court of New South Wales
Date: 6 December 2024
Judge(s): Neilson DCJ

Background

The appellant was convicted in the Downing Centre Local Court on two counts under section 58 of the Crimes Act 1900: assaulting a police officer in the execution of her duty and resisting a police officer in the execution of her duty. Both offences arose from the same incident on 10 September 2022 at Mascot.

Sergeant O'Brien, investigating a reported break and enter nearby, stopped the appellant after observing what he considered suspicious behaviour: she appeared to react to his presence, made a phone call while watching him, and repeatedly placed her hands near the back of her pants and near her bra. A female officer, Leading Senior Constable Gibson, then conducted a search of the appellant. When a subsequent strip search was attempted inside a caged police truck, the appellant bit the officer, giving rise to the assault and resistance charges.

The appellant pleaded guilty separately to possessing a small quantity of methylamphetamine found during those searches. The convictions on appeal concerned her conduct towards the officer during the strip search attempt, and the appellant challenged those convictions on the basis that the stop and initial search were unlawful, that the initial search constituted a strip search, and that evidence flowing from the unlawful stop should have been excluded.

Legal Issues

  • Whether the initial stop of the appellant by Sergeant O'Brien was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the first search conducted by Leading Senior Constable Gibson was lawfully conducted
  • Whether the first search amounted to a "strip search" as defined in LEPRA
  • Whether evidence flowing from an unlawful stop should have been excluded under section 138 of the Evidence Act 1995
  • Whether Leading Senior Constable Gibson was acting in the execution of her duty when she was assaulted, given the earlier unlawful conduct by Sergeant O'Brien

Decision

Issue 1: Lawfulness of the stop and first search

The Crown conceded, and the District Court accepted, that Sergeant O'Brien's state of mind did not reach the statutory standard required under section 21 of LEPRA when he formed the view that the appellant "possibly" possessed an unlawful item (at [14]). The Crown further conceded that section 202(1)(c) of LEPRA was not complied with when the sergeant directed the first search (at [15]). The court accepted that both the stop and the first search were unlawful (at [18]).

Issue 2: Whether the first search was a strip search

The court held that the first search, although going somewhat beyond what section 30 of LEPRA authorises, did not constitute a strip search (at [33]). Reviewing body worn camera footage, the court found that Leading Senior Constable Gibson ran her fingers around the top edge of the appellant's t-shirt, lifted the t-shirt slightly at the back and front, and pulled out the waistband of the appellant's leggings to check inside it (at [24]). No sensitive or private area of the appellant's body was exposed, and no clothing was removed beyond the appellant's footwear, which is expressly permitted by section 30(b) (at [25]-[27]). The court interpreted LEPRA purposively, concluding that the strip search provisions are directed at protecting a person's right to privacy over sensitive areas of the body and that removal of clothing is a necessary feature of a strip search (at [26]-[30]). A search that goes slightly beyond section 30 does not thereby become a strip search if no such exposure occurs (at [30]).

Issue 3: Execution of duty and the impropriety's attribution

The court found that the impropriety lay entirely with Sergeant O'Brien, not with Leading Senior Constable Gibson (at [37]). The constable arrived only to carry out a search directed by the sergeant and committed no independent impropriety. At all material times she was acting in the execution of her duty, so the appellant's assault on her fell within section 58 of the Crimes Act 1900 (at [37]).

Issue 4: Exclusion of evidence under section 138 of the Evidence Act 1995

The court held that the desirability of admitting the evidence outweighed the undesirability of admitting it (at [45]-[46]). The probative value of the drugs found on the appellant was substantial and was paramount to proof of the possession offence (at [41]). The gravity of the impropriety was assessed as insubstantial: it consisted of the sergeant failing to inform the appellant she was under arrest or to caution her, and his conduct was not intimidating (at [42]-[43]). The breaches of the International Covenant on Civil and Political Rights were found to be relatively minor (at [44]). The court also noted that obtaining the evidence without any impropriety would have been extremely difficult, as the drugs could not have been discovered without the stop and search (at [45]). The magistrate's exercise of discretion under section 138 was found not to have miscarried (at [46]).

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A search that goes slightly beyond what LEPRA section 30 authorises does not automatically become a "strip search." The District Court confirmed that the defining characteristic of a strip search is the removal of clothing exposing sensitive or private areas of the body, and that the definition in LEPRA is to be construed purposively with that protection in mind (at [26]-[30]).

  • Where an unlawful stop is committed by one officer, a second officer who arrives only to carry out the directed search and commits no independent impropriety remains in the execution of her duty for the purposes of section 58 of the Crimes Act 1900 (at [37]).

  • Under section 138 of the Evidence Act 1995, the court balanced several factors in favour of admission: the paramount importance of the drugs evidence to the possession charge, the minor nature of the procedural breach (failure to inform the appellant of her arrest), the non-intimidatory conduct of the arresting officer, and the practical impossibility of discovering the drugs by any other lawful means (at [41]-[45]).

  • Concessions by the Crown that both the stop and the first search were unlawful did not automatically lead to exclusion of the evidence obtained. The section 138 balancing exercise remained determinative, and in the circumstances the court upheld the magistrate's decision to admit the evidence (at [46]).

  • In dismissing the appeal, the District Court confirmed that an officer's conduct can be unlawful at the point of stopping a person without that unlawfulness tainting the duties carried out by a separate officer who arrives later and acts without any independent impropriety of her own (at [37]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , s 58.
- Evidence Act 1995 , s 138.
- International Covenant on Civil and Political Rights , arts 9, 12 and 17.
- Law Enforcement (Powers and Responsibilities) Act 2002 , ss 21, 28(1)(b), 30( b), 202(1)(c).

Cases
- Daniel Fromberg v R [2017] NSWDC 259 at [7]-[11], [33].
- Lacey (A pseudonym) v The Attorney General for New South Wales [2021] NSWCA 27 at [48].