Walker v The King

[2024] NSWDC 683

District Court

New South Wales

Medium Neutral Citation:

Walker v R [2024] NSWDC 683

Hearing dates:

3, 6 December 2024

Date of orders:

6 December 2024

Decision date:

06 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The appeal is dismissed. See pars [33], [46] and [48].

Catchwords:

CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.

Legislation Cited:

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 Cited:

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].

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Appellant – Jedda Walker
Crown – R (NSW)

Representation:

Counsel:
Appellant – Ms O’Shaughnessy, S. (Solicitor)
Crown – Mr Gilson, O. (Solicitor)
Solicitors:
Appellant – Aboriginal Legal Service
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s):

2022/00270590

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

11 April 2024

Before:

Magistrate Atkinson

Judgment

1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Atkinson sitting in the Downing Centre Local Court. Her Honour had conducted a hearing on 16 February 2024. Her Honour gave judgment on 11 April 2024 and recorded two convictions which are the subject of these proceedings. They are known as Sequence 1 and Sequence 2.

2. The appellant was originally charged with three offences. Sequence 3 was an allegation that between 12.40pm and 1.20pm on 10 September 2022 at Mascot she did have in her possession a prohibited drug, namely 0.16 grams of methylamphetamine. To that charge the appellant had pleaded guilty, and it is not the subject of the current appeal. However, the circumstances in which the police discovered the methylamphetamine are the subject of the two convictions now under appeal.

3. The appellant was charged under the Crimes Act 1900 section 58. The Sequence 1 offence is that she did assault Tanya Gibson, being a Leading Senior Constable of the New South Wales Police Force in the execution of her duty. The second offence, Sequence 2, was an allegation that during the same time period on the same day at Mascot she did resist Tanya Gibson being an Leading Senior Constable of the New South Wales Police Force while executing her duty. Each of those allegations was of an offence contrary to section 58 of the Crimes Act 1900. Section 58 has subsequently been amended. As it stood at the time s 58 provided this:

“Whosoever -

assaults any person with intent to commit a serious indictable offence, or

assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prisoner officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or

assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,

shall be liable to imprisonment for 5 years.”

Facts

4. The facts are not in dispute. The initial interaction between the appellant and the police was with Sergeant William O’Brien who was attached to the South Sydney Police. On 10 September 2022, he was working between 6am and 6pm. At about 11.40am on that day he received a phone call about a possible break and enter at a home unit complex or townhouse complex in Middlemiss Street at the cross of Coward Street, and he went to that location. He was by himself. When he arrived there was another police car present that had preceded him to the scene and the two officers in that car crew had actually gone into the complex. The sergeant decided to set up a perimeter around the complex in adjoining streets. He took up a position on the corner of Coward and Middlemiss Streets. The relevant part of Coward Street forms one of the boundaries between the suburbs of Rosebery and Mascot.

5. Coward Street runs essentially from east to west. Middlemiss Street runs essentially from north to south. At their intersection, there is a roundabout. On the northwestern corner of the intersection is a park which my street directory tells me is known as Lauriston Park. That can be seen in the various films which have been shown both at first instance and before me, being films from police body worn cameras.

6. The position of the park indicates that the relevant action occurred not in Mascot but in Rosebery because it occurred on the northern side of Coward Street. Nothing of course turns on that. When the Sergeant reached the corner in question, he saw a vehicle on the western side of Middlemiss Street, and he estimated that it was approximately 40 metres ahead of where he was. He saw a female whom he came to know was the appellant standing near that motor vehicle. He thought that when she saw him, she walked across the road into the park. She remained in the park for a short time, and she walked around the park whilst in the Sergeant’s view, watching him. She was also making a phone call.

7. The Sergeant observed that the vehicle from which the appellant had walked had one of its rear windows down. After the appellant had finished her telephone call, she then walked south through the parkland towards Coward Street. That raised a suspicion in the Sergeant because he thought it strange to be leaving an open vehicle parked on the side of the road and walking away from it. His suspicions were enhanced whilst the appellant was making a phone call. The Sergeant thought that the appellant may have been a “cockatoo”, the well-known Australian vernacular for a lookout, who may have been involved with the breaking and entering that had been said to have occurred in the complex. As the appellant was walking away from the vehicle, she was walking away not only from Middlemiss Street but also the townhouse complex. The Sergeant alighted from his vehicle and called out to the appellant.

8. According to his oral evidence, he and the appellant ended up speaking on the corner of Coward and Middlemiss Streets. The Sergeant believed that the appellant was very nervous when talking to him and he also noticed that her hands were shaking, that is, some form of tremor. He then activated his body worn video camera and introduced himself as Sergeant O’Brien from the Mascot Police Station. He asked her about the car. He though her answers were “cagey”. She was holding the keys to the car in her hand as he was asking her questions about the vehicle. He asked her questions about what she was doing in the vehicle, what she was doing in the park and whether the vehicle from which she walked hers.

9. He also asked her if she was leaving it unlocked and if so, why was she walking away from it. He reiterated that he thought her behaviour and answers were ‘’cagey”. He explained that by saying that the appellant did not appear to him to be confident in the answers she was giving him. Whilst they were talking, the Sergeant believed that the appellant “kept fiddling with the back of her pants”. In her hand she was holding her mobile phone, a drink bottle of some sort and the keys to the car. He then said that she “kept fiddling with the back of her pants and a couple of times had also put her hand down the top near her bra”.

10. The latter appears to me to be shorthand for saying that she put her hand near the top of her t-shirt which she was wearing, as can be seen, on the body worn camera footage. He went on to say that initially, he thought that she was a “lookout” for the suspected break and enter that might be occurring in the housing complex. When he was talking to her, he kept telling her to keep her hands where he could see them. He explained to her why he was there, that there was something going on in the town house complex nearby. He went on to say this:

“Whilst I was talking with her, I then observed a male in a white shirt pop out from one of the fences near the town house complex. He looked in our direction and then immediately decamped and ran off back towards... the town houses.”

How that was relevant to his interaction with the appellant is unclear. But it may have heightened his perception that she might be a “cockatoo”.

11. The next question asked by the prosecutor, and the answer the sergeant gave are these:

“Q. What did you do after you had that short conversation with the accused?

A. I asked for another vehicle to attend with a female officer. I explained once the female officer had arrived, I explained to the accused that she - sorry, I missed a part. Prior to that, I actually did some checks on the MOBIPOL on her name which bore back some information and some intelligence that police have on the accused. I then explained that she would be searched. I explained that, how nervous she was. I explained the issues about the car. I explained that while we were there for the break and enter, also she was trying to conceal something down her pants. I then explained that in the presence of Senior Constable Gibson, the female officer. Once that was explained, Senior Constable Gibson did conduct a general search of the accused person.”

12. The next question asked of the sergeant was what happened after that, and he referred to the “general search” that was conducted by Leading Senior Constable Gibson. He said in his evidence that both of them had had the belief that there was something on the person of the appellant, and that a strip search would then occur. Leading Senior Constable Gibson then took the accused to the rear of a caged police truck and the sergeant walked off with another male officer towards the vehicle which the sergeant believed was the one that had been driven there by the appellant, and the keys to which she had been holding when she had her discussion with the sergeant. That is how the interaction between the police and the appellant commenced.

Issues on Appeal

13. The issues on this appeal are largely summarized in the written submissions. Those on behalf of the appellant have been Marked For Identification (“MFI”) 1. Those on behalf of the Crown are MFI 2. MFI 1 contains these submissions:

“4. A voir dire was conducted prior to the hearing proper, and it is the findings on the voir dire that are challenged by the appellant in this appeal.

5. In the voir dire, the appellant raised four arguments:

a) The stop executed by Sergeant O’Brien was unlawful as a result of his failure to comply with s 202(1)(c) of LEPRA [Law Enforcement (Powers and Responsibilities) Act 2002] and because he did not hold a reasonable suspicion at the time of the stop;

b) The evidence that flowed from the unlawful stop should be excluded;

c) The first search conducted by Leading Senior Constable Gibson amounted to an illegal strip search;

d) Leading Senior Constable Gibson acted outside the execution of her duty in that she used excessive force when detaining Ms Walker in the police vehicle.

FINDINGS IN THE LOCAL COURT

6. The following findings were made in the Local Court;

a) Sergeant O’Brien executed a stop;

b) The reasons for the stop given by Sergeant O’Brien did not fall within s 21 of LEPRA;

c) Prior to the first search, the officers had formed the view that the appellant was concealing something;

d) The first search was not a strip search;

e) The police had a basis for conducting the second (strip) search;

f) Declined to make a finding that unreasonable force was used by Leading Senior Constable Gibson.

7. In relation to the discretion under s 138 of the Evidence Act:

a) The probative value of the evidence was high;

b) The offences charged were not the most serious;

c) What occurred was not the most serious example of such charges;

d) The impropriety was not grave;

e) The impropriety was reckless and not deliberate;

f) The detention or limitation was very short and Ms Walker was not arrested until later in the interaction;

g) It was not apparent that any other proceedings had been taken or were likely to be taken in relation to the impropriety;

h) It would not have been difficult for the police to obtain the evidence had they waited a couple of minutes;

i) The desirability of admitting the evidence outweighs the undesirability of not admitting it.

8. In relation to the elements of the offence:

a) The officers were acting in the execution of their duty;

b) During the strip‑search the accused bit an officer which constituted an assault;

c) The accused resisted the officers as they tried to search her;

d) The accused was struggling against the officer as she tried to carry out a search;

e) The elements of the offences were proved beyond reasonable doubt.”

14. The Crown has very properly made a number of concessions. In MFI 2 at [43] Mr Gilson for the Crown conceded that Sergeant O’Brien’s state of mind did not reach the standard required under s 21 of LEPRA when he formed the view that the appellant “possibly” possessed some unlawful item perhaps prohibited drugs which he had secreted on her person.

15. He also conceded very properly that s 202(1)(c) was not complied with when the sergeant exercised his power under s 21 to direct the first search of the appellant by Leading Senior Constable Gibson.

16. He very properly conceded that the Court must exclude any evidence that it was obtained improperly or in consequence of impropriety or of a convention of Australian law unless the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which the evidence was obtained in accordance with s 138 of the Evidence Act 1995.

17. He went on to say this:

“(46) It is conceded that the initial stop was an improper exercise of the power in s 21 and that the evidence, ultimately relied upon by the Crown, would not have come into existence had the appellant not been stopped in the first place. It is open to the Court to find that the evidence was obtained as a consequence of impropriety.

(47) The onus rests on the Crown to persuade the Court that the evidence should be admitted.

(48) The Court must take into account the non-exhaustive list of factors set out in s 138(3).”

18. I accept that the stopping of the appellant was unlawful and that the first search conducted was not conducted lawfully. A submission has been made about whether that first search was a strip search, as those words are used in LEPRA. Indeed, most of the oral argument and most of the time spent on arguing this case was on that issue.

Whether First Search a Strip Search under LEPRA

19. It is important to consider a number of provisions of LEPRA. The relevant provisions appear to me to be these:

“21   Power to search persons and seize and detain things without warrant

(1)  A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists—

(a)  the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b)  the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c)  the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d)  the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

(2)  A police officer may seize and detain—

(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(c)  any dangerous article, and

(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

21A   Ancillary power to search persons

(1) In conducting a search of a person under section 21, a police officer may, if the police officer suspects on reasonable grounds that a thing referred to in section 21(1)(a), (b), (c) or (d) is concealed in the person’s mouth or hair, require the person—

(a)  to open his or her mouth to enable it to be searched, or

(b)  to shake, or otherwise move, his or her hair.

(2)  Subsection (1) does not authorise a police officer to forcibly open a person’s mouth.

(3)  A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section.

Maximum penalty—5 penalty units.

30   Searches generally

In conducting the search of a person, a police officer may—

(a)  quickly run his or her hands over the person’s outer clothing, and

(b)  require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and

(c)  examine anything in the possession of the person, and

(d)  pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person, and

(e)  do any other thing authorised by this Act for the purposes of the search.

…….

strip search means a search of a person or of articles in the possession of a person that may include—

(a)  requiring the person to remove all of his or her clothes, and

(b)  an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

……

31   Strip searches

A police officer may carry out a strip search of a person if—

(a)  in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or

(b)  in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

32   Preservation of privacy and dignity during search

(1)  A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.

(2)  The police officer must inform the person to be searched of the following matters—

(a)  whether the person will be required to remove clothing during the search,

(b)  why it is necessary to remove the clothing.

(3)  The police officer must ask for the person’s co-operation.

(4)  The police officer must conduct the search—

(a)  in a way that provides reasonable privacy for the person searched, and

(b)  as quickly as is reasonably practicable.

(5)  The police officer must conduct the least invasive kind of search practicable in the circumstances.

(6)  The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.

(7)  A search must be conducted by a police officer of the same sex as the person searched.

(7A)  However, if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is—

(a)  of the same sex as the person to be searched, and

(b)  of a class of persons prescribed by the regulations for the purposes of this subsection.

The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.

(8)  A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.

(8A)  Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.

(9)  A person must be allowed to dress as soon as a search is finished.

(10)  If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.

(11)  In this section—

questioning of a person means questioning the person, or carrying out an investigation (in which the person participates).

33   Rules for conduct of strip searches

(1)  A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—

(a)  the strip search must be conducted in a private area,

(b)  the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,

(c)  except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.

(2)  A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.

(3)  A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted—

(a)  in the presence of a parent or guardian of the person being searched, or

(b)  if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.

(3A)  Subsection (3) does not apply if a police officer suspects on reasonable grounds that—

(a)  delaying the search is likely to result in evidence being concealed or destroyed, or

(b)  an immediate search is necessary to protect the safety of a person.

In such a case, the police officer must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched.

(4)  A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.

(5)  A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(6)  A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(7)  A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.

(8)  This section is in addition to the other requirements of this Act relating to searches.

(9)  In this section—

impaired intellectual functioning means—

(a)  total or partial loss of a person’s mental functions, or

(b)  a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(c)  a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.”

20. It must be noted, at the outset, that the definition of “strip search” is inclusive, not exclusive. In Lacey (A pseudonym) v The Attorney General for New South Wales [2021] NSWCA 27, Leeming JA said this at [48]:

“The term “strip search” is defined inclusively in s 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to extend to a search “requiring the person to remove all of his or her clothes”; such a search is authorised by s 31 of that Act. It is to be contrasted with a “frisk search”, a term formerly defined in s 3 to mean, relevantly, “a search of a person conducted by quickly running the hands over the person’s outer clothing”. The point of drawing the distinction is that a search which goes beyond a frisk search may be a “strip search” as defined by statute, even if it falls short of requiring the person to remove all of his or her clothes. That is not to deny the intrusiveness of either form of search. However, while the evidence available on this appeal does not enable a definitive conclusion to be drawn, it may very well be that what the police did was to conduct a “strip search” falling within the inclusive legal definition, albeit one which did not involve the removal of all of the appellant’s clothing.”

His Honour’s point is, strictly speaking, obiter dictum. The appellant, through her solicitor, did not draw my attention to that dictum about his Honour’s view that any view other than the “frisk search”, now contained in s 30, was “a strip search.” But I must give due regard to what his Honour said, albeit that it was obiter dictum. In a sense, the appellant argued that insofar as anything that was not authorised by section 30, then the search could be described as a “strip search.”

21. In the Local Court the appellant relied upon a decision of my colleague, Scotting DCJ, in Daniel Fromberg v R [2017] NSWDC 259. That concerned the search of a motorcyclist who had been pulled over on the road at Bondi Junction and was stopped by the police because he did not have his helmet strap done up. His Honour said this:

“7.   Senior Constable Jahnke (the officer) approached the appellant and spoke to him about the traffic offence. The appellant gave the officer his driver’s licence. The officer thought that the appellant was nervous and observed that .his hands were shaking and his voice was quivering. The appellant confirmed that his address was correct and that his licence was current. He told the officer he was going to a fish and chip shop in Bondi Junction. The officer formed the view that the appellant may be under the influence of alcohol or a prohibited drug, on the basis that the appellant appeared ‘scattered’ and that some of his movements were sharp. The officer then conducted enquiries over the radio. The officer was told the appellant had a prior conviction about 2 years previously for possess prohibited drug and that he was presently on bail for charges of manufacturing a prohibited drug and that there were intelligence reports relating to the latter charges.

8.   The appellant denied consuming any alcohol that night and he was subjected to a roadside breath test that was negative. The officer asked the appellant if the sores on his face were ‘ice sores’ and the appellant said “Yeah, I just can’t get rid of them’. The officer thought that the appellant was hesitant to get off his motorcycle. Based on all of those observations and information the officer suspected that the appellant may be in possession of methamphetamine and decided to search him.

9.   The appellant denied having anything in his possession that he should not have and the police brought him to the front of the police vehicle to conduct the search, where it could be captured by the ICV. The search commenced with the officer and another police officer going through the pockets of the appellant’s jacket. At the same time other police officers searched his bag that he had been wearing across his body.

10.   The officer then asked the appellant to unbuckle his belt, so that the officer could make sure that there was nothing behind his belt or in the lining of his jeans. The officer then reached to feel inside the appellants jeans with the intention of searching around the elastic of his underwear. The footage depicts the officer extending his hand quickly towards the appellant’s genital area. In response to the officer putting his hand inside his jeans the appellant pulled back from the officer and said, ‘No, fuck off, you can’t do that’. The officer took hold of the appellant’s arms at the wrist. As a result of the appellant pulling way, the officer believed that the appellant had something down his pants. The officer said to the appellant, I have every right to search down there’.

11.   The appellant was then handcuffed to the rear. With 3 other officers in close proximity the officer then reached into the appellant’s pants and pulled out his jeans and underwear. He observed the plastic bag containing the drugs sitting above the appellant’s penis, inside his underwear. He removed the bag and cautioned him.”

22. However, in [33] of that judgment his Honour pointed out that the Magistrate in the Court below found that the appellant had been subjected to a strip‑search and his Honour said, “So much is uncontroversial”. The issue in this case is otherwise.

23. In MFI 1 at [21] the appellant submitted this:

“The first search, conducted by Leading Senior Constable Gibson is captured on her body‑worn camera (exhibit 2). The search is captured in the footage from two minutes and 30 seconds. The parts of the search that the applicant submits went beyond a search of the person, outlined in s 30 of LEPRA, are as follows:

a) Leading Senior Constable Gibson pulling down the neck of the appellant’s T‑shirt and running her fingers across the inside of the T‑shirt;

b) Leading Senior Constable Gibson pulling the appellant’s T‑shirt up from the bottom exposing her back;

c) Leading Senior Constable Gibson putting her hand into the waistband of the appellant’s leggings;

d) Leading Senior Constable Gibson instructing the appellant: “Just get your waistband and pull it out just a tiny bit”.

e) In response, the appellant pulled her bra away from her body in response.

f) Leading Senior Constable Gibson running the waistband of the appellant’s leggings away from her body and runs her finger along the inside of the waistband.”

24. I have watched the footage. Clearly the Leading Senior Constable was using her fingers to run around the top edge of the appellant’s T‑shirt and pulling it at the back to look down her back. She also raised her T‑shirt at the back from the bottom of the T‑shirt to look at an area of about 6 inches above the waistband of the appellant’s leggings and at the front she did likewise looking at the abdomen about 6 inches above the umbilical area and she clearly pulled out the waistband of the appellant’s leggings a short distance in order to run her finger around the waistband of the leggings and it appeared to me that the inside of her fingers were against the waistband which she was pulling out in order to ascertain whether anything may have been held against the appellant’s body by the waistband which upheld her leggings at the waist of the appellant.

25. No sensitive or private area of the appellant’s body was exposed. The appellant was then asked to remove her footwear which were then examined, but that is authorised by s 30(b) and she was also asked to shake out her hair, as is authorised by s 28(1)(b) of LEPRA.

26. I am not persuaded, as a matter of statutory interpretation that, if a search is conducted, which might be thought to be greater than that authorised by s 30, that the search by that very fact becomes a “strip search.” The provisions relating to strip searching all require the removal of an item or items of clothing, including removing all the clothing.

27. The appellant, when searched initially, was not asked to remove any items of clothing other than her shoes and socks, which is authorised under s 30. There may have been some visual inspection of the upper body by lifting the edge of the t-shirt up, both at the back and front of the body, but nothing was seen. Of course, something could be attached to the body by being underneath the waistband of the leggings but being hidden by the t-shirt.

28. When one considers the legislation as a whole, one can see that what the Act seeks to do, if the removal of clothing is concerned, is to use the heading of s 32, “Preservation of privacy and dignity during search.” Most people realise that there are private or sensitive parts of a person’s anatomy which a person is entitled to keep private, to keep covered. In general, they include, the genital area, the area of the buttocks and in the case of a woman the area of the breasts.

29. One can understand there being no issue about that matter in Fromberg v R because it is clear that the constable reached down into the underwear of the appellant in that case, who reprimanded the officer about putting his hand down the front of the appellant’s pants and underpants. And it is clear from [11] of that judgment that the police officer must have seen the appellant’s penis. There was no dignity or privacy reserved in that search carried out in a public place, namely a road.

30. I am proposing that the various provisions of LEPRA ought be interpreted in a purposive manner. That is, that the right of a person to be dealt with, with dignity and the right of a person to maintain the privacy of the sensitive parts of his or her body ought be protected. Merely doing what was done in this case, albeit that it went a little more than was authorised by s 30 did not turn the search into a “strip search.”

31. It has been submitted on behalf of the appellant that one can see from the body worn footage of Leading Senior Constable Gibson, that she touched the skin of the appellant in her search, which is not permitted. I am not persuaded that that is the case. In cross-examination this evidence was given:

“Q. You’d agree that during the search of Ms Walker, you have placed your hands inside the inside of Ms Walker’s skin when you went around the waistband?

A. I think I went around the waistband.

Q. When you say I went around the waistband, you agree that your fingers were touching Ms Walker’s skin when you went around the waistband?

A. I don’t think I touched the skin. I was pulling out the pants area, the waistband area.

Q. So in order to pull out the pants from the waistband area, how can you do that without touching the skin?

A. I use the materials, you pull it out with the materials.”

32. That can be found in the transcript of 16 February 2024 at page 32, commencing at line 19. When the Leading Senior Constable was referring to “the materials” she obviously meant the materials of the legging that surrounded, what would appear to be, an elastic substance which kept the top of the waistband at the waist level. There is no greater touching of the person in doing that than there is in carrying out a frisk search.

33. I uphold the learned Magistrate’s decision that the first search, albeit unlawful, did not amount to a strip search.

Second Search

34. The appellant when there was a negative result to the first search was asked to accompany Leading Senior Constable Gibson in the back of the caged police truck where it was proposed that the appellant be strip searched. One can see from the films that the sergeant and the male officer who probably arrived with Leading Senior Constable Gibson in the caged police truck walked up to the vehicle which could be described as the “appellant’s vehicle” and the two male officers then proceeded to commence a search of it.

35. However, a motion in the back of the caged police truck, involving Leading Senior Constable Gibson and the appellant was drawn, probably by noise, to the attention of the sergeant, who ran back towards the caged police truck, a distance which was about 30 metres and there was certainly a struggle in the back of the police truck. I need not go into it in any detail but clearly, there was an angry protestation by the Leading Senior Constable. She had been bitten by the appellant.

36. Eventually, photographs were placed before the Court and the photographs which can be found on pages 16 to 18 of Exhibit 1. The Crown material on the appeal shows the small amount of drug which was found eventually on the person of the appellant.

37. That brings me to a number of other issues. The first issue was whether the Leading Senior Constable was in the execution of her duty when she was assaulted and bitten. The impropriety here, was an impropriety, carried out by the sergeant. I accept that it was not intentional, but it was clearly he who stopped the appellant, carried out the conversation with her and called for assistance from a female officer, namely Leading Senior Constable Gibson and formed the belief that she may have some substance secreted on her person or something else of interest to the police. He was the person who arrested her. Arrested, means stopped. It was he who should have cautioned her. It was he who ought to have told her the reasons why she had been stopped. It was his impropriety, not the impropriety of the Leading Senior Constable. She arrived only to carry out the search which had been directed by the sergeant. She committed no impropriety herself. She did nothing which took herself out of the course of her duty. At all material times, she was in the course of the execution of her duty. So that does not in any way interfere with the liability of the appellant under s 58 of the Crimes Act as it then was.

38. However, I will proceed with the analysis of whether considering that the impropriety commenced with the sergeant, that in some way everything that happened thereafter, resulted from that impropriety. That takes me to s 138 of the Evidence Act1995. Section 138 of the Act is this:

“Exclusion of improperly or illegally obtained evidence

(1)  Evidence that was obtained—

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

39. Of course, the argument is straightforward: as everything that occurred from the time that the appellant was stopped by Sergeant O’Brien, everything thereafter flowed from what occurred. Had she not been stopped or after having a chat with the sergeant she had continued on her way, she would not have been strip‑searched by the Leading Senior Constable and the drugs that she was carrying on her person would not have been found.

40. Subsection (1) requires that the desirability of admitting the evidence outweigh the undesirability of admitting the evidence that had been obtained in the way in which the evidence was obtained. That is the primary question. I am required to take into account the matters set out in subsection (2). Subsection (2) in my view, is irrelevant to the current inquiry.

41. I then go to subsection (3). The probative value of the evidence obtained was substantial. That evidence was clearly the drugs which she was carrying on her person and her possession of that drug was unlawful. The importance of the evidence in the proceedings is paramount. The possession of a prohibited substance is generally proved by the finding of the prohibited substance on the person of or in the control of the person in question. Here the nature of the relevant offence is possession of an illegal substance. I know of no cause of action or defence that are the subject matter of the proceedings.

42. The gravity of the impropriety or contravention was in my view insubstantial. I use that word advisedly. The appellant was acting suspiciously. The sergeant was at the park for a reason which appears to have had nothing to do with the appellant. It was her behaviour which drew the attention of the sergeant towards her. He initially thought she might be a party to the suspected crime which took him to the place where he was and where initially he thought she might be involved in committing a crime which he was there to try to prevent.

43. The impropriety was merely not telling her that she was under arrest and for which crime. Clearly, the sergeant did not intend to let her move on or move away. She was not free to leave, as his oral evidence was at the hearing, but he had not formed any view of what offence she had committed at that time, nor had he told her why she was not free to leave. Clearly, he was reckless. In many cases the behaviour of a police officer can be quite unpleasant. It can be intimidating, but the behaviour of Sergeant O’Brien was certainly not that. Indeed, he tried his very best to be friendly with the appellant and provided her with a number of opportunities to explain her behaviour.

44. It appears to be accepted that the contravention was contrary to articles 9, 12 and 17 of the International Covenant on Civil and Political Rights, as her Honour found. However, the breaches were relatively minor.

45. I am unaware of any other proceedings which have been or are likely to be taken in relation to the impropriety, as referred to in subsection (3)(g), and as far as the final provision of subsection (3) is concerned, paragraph (h), the difficulty of obtaining the evidence without impropriety or contravention of Australian law would have been extremely grave, and because without stopping and searching the appellant, the crime could not have been established. In other words, in short, the reasons for admitting the evidence outweigh the undesirability of admitting the evidence that had been obtained in the way in which it was obtained.

46. I accept that the evidence was properly admitted and the exercise by the learned magistrate of her discretion under s 138 did not miscarry.

47. Does anyone want any more reasons?

GILSON: No, your Honour.

O'SHAUGHNESSY: No, your Honour.

48. HIS HONOUR: For those reasons the appeal is dismissed.

**********

Decision last updated: 17 July 2025