R v PINKERTON (No 2) - [2020] SADC 4

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v PINKERTON (No 2)

Details

AGLC: R v PINKERTON (No 2) [2020] SADC 4
Case: [2020] SADC 4
Decision Date: 20 April 2018

CaseChat Overview and Summary

The District Court of South Australia considered an application by the defendant to reserve a question of law for the Full Court. The defendant faces trial for trafficking in amphetamine and unlawful possession, scheduled for February 2019. The defendant was approached by police at a service station on suspicion of trafficking amphetamine, where he was found to have 3.16g of methylamphetamine and a small amount of cash on his person. A significant sum of cash was later found hidden at his home. The police conducted a search, during which they found a rolled-up bundle of paper towel containing the amphetamine hidden in the defendant’s underwear.

The court was required to determine whether the search constituted an infringement of privacy under the Summary Offences Act 1953 (SA) and whether it violated the Criminal Law (Forensic Procedures) Act 2007 (SA). The primary concern was whether the search, which involved the genital area, qualified as an intrusive forensic procedure that required a medical practitioner or registered nurse to conduct. Under the Criminal Law (Forensic Procedures) Act, such procedures are not applicable to searches of a person, which was the case here as the search occurred before the defendant was taken into lawful custody.

Judge Tilmouth concluded that the search was conducted in a manner that preserved privacy as much as possible but did not meet the stringent humane and careful standards required by law. The court held that the defendant was not in lawful custody at the time of the search, thus the protections under the Summary Offences Act were not triggered. As a result, the court determined that the Criminal Law (Forensic Procedures) Act was not applicable since the search was a lawful search before the defendant was arrested. Consequently, the court declined to reserve any question for the Full Court.

The defendant subsequently pleaded guilty to trafficking and is awaiting sentencing.

Orders