Daniel Fromberg v The Queen

[2017] NSWDC 259

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Daniel Fromberg v R [2017] NSWDC 259
Hearing dates:	31 August 2017
Date of orders:	18 September 2017
Decision date:	18 September 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	(1) Appeal against conviction is allowed. (2) I set aside the conviction and the penalty imposed by the magistrate.
Catchwords:	CRIMINAL LAW – possess prohibited drug – search – strip search APPEAL – not guilty – conviction appeal INTERPRETATION – legislative provisions – meaning of search – police powers pertaining to a search
Legislation Cited:	Crimes (Appeal and Review) Act 2001 s.18(1) Drugs 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 Cited:	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
Category:	Principal judgment
Parties:	Daniel Fromberg (Appellant) Regina (Respondent)
Representation:	Solicitors:   Legal Aid New South Wales (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/240647
Publication restriction:	None

Judgment

1. Daniel Fromberg (the appellant) appeals against the conviction entered by her Honour Magistrate Stapleton on 31 October 2016 at the Waverley Local Court.

2. The appellant pleaded not guilty to one count of possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985.

3. A small clear resealable bag of methamphetamine weighing approximately 2.5g was located by police in the appellant’s underpants. At the Local Court and on appeal the appellant contended that the search of his person was unlawful because he was subjected to a ‘strip search’ as defined by section 3 Law Enforcement(Powers and Responsibilities) Act 2002 (LEPRA), when the police officer did not have the requisite reasonable suspicion (section 31 LEPRA) and the police officer did not follow the required procedure (sections 32 and 33 LEPRA).

4. The appeal was conducted on the basis that if I determined that the search was illegal or improper that I should then consider admitting the evidence of finding the drugs on the appellant, pursuant to section 138 Evidence Act 1995, and then determine the case on the evidence as it then stands.

Facts

5. At about 10.23pm on 14 August 2015 the appellant was riding his motorcycle on Denison Street at Bondi Junction, when he was stopped by the police because he did not have his helmet strap done up.

6. The events that follow were captured on the In Car Video…