R v PINKERTON (No 2)
[2020] SADC 4
•20 April 2018
District Court of South Australia
(Criminal)
R v PINKERTON (No 2)
[2020] SADC 4
Reasons for Ruling of His Honour Judge Tilmouth (ex tempore)
20 April 2018
CRIMINAL LAW
Consideration of the circumstances in which it is appropriate to reserve a question of law antecedent to the consideration of the Full Court.
Controlled Substances Act 1984 (SA) s 52(6); Summary Offences Act 1953 (SA) s 81(1), s 81(2), s 81(3), s 81(4)(g), s 81(6); Criminal Law (Forensic Procedures) Act 2007 (SA) s 4(1)(b), s 24, s 47; Criminal Law Consolidation Act 1935 (SA) s 350(2), s 350(3); R v P, CM [2017] SADC 137; R v Dowding (2000) 15 FLR 204, referred to.
R v PINKERTON (No 2)
[2020] SADC 4
There is an application before the court by the defendant to reserve a question of law for consideration and determination by the Full Court, of an issue antecedent to his criminal trial. He faces trial on a charge of trafficking in amphetamine and unlawful possession, due to be heard in February 2019.
The question arises in this way. The accused was approached by police in the early evening of Tuesday 13 September 2016 at a service station in Munno Para, on suspicion of trafficking in amphetamine. They had information that the accused may have possessed drugs ‘in his underpants tucked underneath his scrotum’. On his person 3.16 g of methylamphetamine was found and a small amount of cash. Later a relatively large sum of cash was found by police wrapped in bags hidden at the back of the freezer at his home in a nearby suburb.
At the service station, the accused was compliant with police requests to provide his personal particulars. Being reasonably suspected of possessing controlled substances, the police exercised the power of search contained in s 52(6) of the Controlled Substances Act 1984 (SA). Wearing gloves, a detective searched the inside of the accused’s underwear, when from underneath his testicles he found a rolled-up bundle of paper towel containing the amphetamine.
The issues in contention are whether the search constituted an infringement of the protections against the invasion of personal privacy in the case of ‘intrusive’ or ‘intimate’ searches, within the meaning of s 81(2) and (3) of the Summary Offences Act 1953 (SA), or more importantly, whether the search infringed the Criminal Law (Forensic Procedures) Act 2007 (SA).
An ‘intimate search’ is defined in s 81(6) of the Summary Offences Act as including ‘a search of the body that involves exposure of, or contact with the skin of, the genital or anal area …’. If these provisions are engaged, then s 81(4)(g) of the Summary Offences Act dictates that they must be carried out humanely so as to avoid unnecessary humiliation or embarrassment. Furthermore, s 24 of the Criminal Law (Forensic Procedures) Act provides that intrusive forensic procedures may only be carried out by a medical practitioner or, for practical purposes by a registered nurse. Such procedures include an examination ‘that involves … contact with, the genital … area …’ pursuant to s 3(1) thereof. A contravention of these requirements renders evidence obtained as a result, prima facie, inadmissible: s 47 Criminal Law (Forensic Procedures) Act.
There can be no doubt that the search undertaken in this case was capable of amounting to an intrusive forensic procedure as so defined. However s 4(1)(b) of the Criminal Law (Forensic Procedures) Act specifically excludes the application of that Act to a ‘search of a person’. I held this was of decisive significance given that the requirements pertaining to forensic procedures were not engaged and accordingly this was a simple search, as opposed to a relevant forensic procedure: R v P, CM.[1]
[1] [2017] SADC 137, [32].
It can be accepted that this issue raises an important point of practical application to investigating police, as Mr Evans counsel for the DPP submitted during the course of argument:[2]
If I can address a question of policy, your Honour. If your Honour holds that a police officer is not permitted to search the body of a person for drugs then that would have serious ramifications for police work.
[2] T6.18-.21
During the course of submissions, defence counsel all but conceded that this ruling is likely to result in a guilty plea. There is therefore little question of the proceedings becoming unduly fragmented if a question of law is reserved: R v Dowding,[3] or for that matter of infringing the prohibition against reserving a question if ‘that would unduly delay the trial …’ contained in s 350(3) of the Criminal Law Consolidation Act 1935 (SA).[4]
[3] (2000) 159 FLR 204.
[4] Althouth at the date of this ruling the procedures for the reservations of questions of law to the Full Court were governed by s 153 of the Criminal Procedure Act 1921 (SA), from 5 March 2018, s 41 of the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) provided in effect that proceedings commenced before then remained for determination under s 350 of the Criminal Law Consolidation Act.
Having considered the matter carefully again, it appears that once the interrelated provisions referred to are properly understood, the question is a relatively straightforward and clear one. As to the first question, there was a factual finding that the search was ‘carried out in circumstances of privacy as best as could be afforded in the circumstances’, but one ‘barely’ described as carried out ‘humanely and with care’.[5] However, the procedure required by s 81(4g) of the Summary Offences Act was not engaged as the accused was not at the time of the search ‘taken into lawful custody’ as required by s 81(1) of the Summary Offences Act, so as to trigger the search provisions contained therein. He was arrested shortly afterwards. No question of general importance arises from these conclusions.
[5] [2017] SADC 137, [30].
As to the second question, s 4(1)(b) of the Criminal Law (Forensic Procedures) Act provides:
4—Application of Act
(1)Nothing in this Act applies to—
(a) …
(b) a search of a person.
As the facts of this case amount to a lawful search pre-arrest, before forensic procedures applied, the Criminal Law (Forensic Procedures) Act was simply not engaged at that time.
That being the position, I decline to reserve for consideration of the Full Court any question arising in this case under s 350(2) of the Criminal Law Consolidation Act.
ADDENDUM
Since delivering these reasons, the accused pleaded guilty on 15 November 2019 to trafficking. He presently awaits sentence.
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