Police v Adrian Ping [2003] NSWLC 15

Local Court of New South Wales

CITATION: Police v Adrian Ping [2003] NSWLC 15 JURISDICTION: Criminal PARTIES: Police v Adrian Ping FILE NUMBER: PLACE OF HEARING: Wollongong DATE OF DECISION: 12/17/2003 MAGISTRATE: CATCHWORDS: Refuse to comply with request to seach - resist police in execution of their duty - intimidate police Summary Offences Act s 28A (5) LEGISLATION CITED: Summary Offences Act 28 A (1) Evidence Act s 138 Streat v Blanco NSW SC 16.3.1998 Smart J at p11 Director or Public Prosecutions v Lance Carr NSWSC s 12175 of 2000, Smart AJ R v Ireland (1970) 126 CLR 321 at p 355 The People (Attorney General) v O'Brien [1965] IR 142. CASES CITED: Olmstead v United State (1927) 277 US 438 at p 470 (72 Law Ed 944 at p 953)Bunning v Cross (1978) HCA 22 (1978) 141 CLR 54 p75 Robinett v Police (2000) 78 SASR 85; 116A Crim R 492. DPP V CAD & Ors [2003] NSWSC 196 (26 March 2003) Ridgeway v The Queen F.C No 95/016 HCA 33 (1995) 129 ALR 41 (1995) 69 ALJR 484 (23 August 1994). Rondo [2001] NSWCCA 540 (24 December 2001) REPRESENTATION: Police Prosecutor Sgt Mewett Ms B O'Reilly for the accused. ORDERS:

1 On the 19th May 2003 at Corrimal Adrian PING (d.o.b. 27.1.1983) was arrested and charged with the offences of (1) refuse to comply with request to search (Summary Offences Act…S.28A(5)), (2) resist police in the execution of their duty and (3) intimidate police officer. 2 On that day the three arresting police were taking part in "proactive tasking". I understand that to mean that they were directed to work in a particular area because of recorded information as the number of offences committed in that area. As they drove in their marked police vehicle, they saw four males on pushbikes riding on the footpath. They were going in the same direction as the police vehicle. The males commenced to ride faster. The police thought this happened when the males noticed the police. The males rode through the next intersection against a red traffic light. The police waited at the red light then proceeded to follow the males. 3 By the time the police caught up with the males, they had gone 1 to 1.2 kilometres further down the road. The police vehicle pulled in front of the males and stopped. The police got out and signalled the males to stop. Two rode around the police, into a park and disappeared. The other two stopped. One of those who stopped was Mr Ping. He stopped on the roadway adjacent to the police car. 4 He was asked to get off the road and go to the footpath. He said "Fuckin get out of me way". He was asked again and said "I'm not fucken movin." The senior of the three police officers (Senior Constable West) then approached the accused and said "Adrian can you get off the road. I'm going to subject you to a knife search, as I believe by your actions of riding away quickly when you saw Police that you may be carrying some sort of weapon, the way you are carrying on now is also reinforcing this belief". The accused replied "Mr West I just got out of gaol and the first cop I meet is you, ya fuckin kiddin". Senior Constable West then formally demanded that the accused comply with the request for the search. 5 The accused refused to submit to the search. During the interaction with police he said "I just wanta go" and later "Ya touch me I'll knock ya fuckin out" . Senior Constable West said "I'm going to conduct a knife search and if there is nothing there you can go". He went to get the metal detector and he heard the accused say to another officer "Ya come near me, I'll knock ya out, I'll drop ya with one punch ya cunt". 6 Senior Constable West returned and said "Adrian I've given you a fair go here, you are now under arrest for intimidating that officer and I still intend to conduct the knife search". The accused dropped his bike and commenced to run. He was grabbed, struggled, placed on the ground and handcuffed. He was subjected to the knife search and nothing was found. 7 At the end of the prosecution case, the court heard submissions as to the validity of the search. Section 28A(1) of the Summary Offences Act 1988 provides: (1) If a police officer suspects on reasonable grounds that a person who is in a public place or a school has a dangerous implement in his or her custody, the police officer may request the person to submit to a search comprising any or all of the following procedures: ……