District Court New South Wales 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 1. 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. 2. The events that follow were captured on the In Car Video system (ICV) installed in the police vehicle. The conversation between the police officers and the appellant was recorded up until about the time when the search commenced. 3. 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. 4. 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. 5. 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. 6. 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'. 7. 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. 8. The appellant was later issued with a field Court Attendance Notice. The relevant law 1. The applicable principles to be applied in determination of the appeal are as follows. 2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; 3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. 5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 6. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. 7. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91].. 8. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA. 9. When a power of search is given by statute that exercise of the power must be exercised strictly in compliance with the statutory power and with the clearest of authority: Henderson v O'Connell [1937] VLR 171 at 176 and applied by the Full Federal Court in Noordof v Bartlett (1986) 12 FCR 209 and cited with approval by McHugh J in Coleman v Power (2004) 220 CLR 1 at [118]-[120]. The police do not have a common law right to commit a trespass by continuing their investigations when their statutory power that authorises the commission of a trespass comes to an end: Kuru v State of New South Wales (2008) 236 CLR 1. 10. Section 3 LEPRA, at the relevant time, contained the following definitions: frisk search means:(a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing, and(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to the thing. ordinary search means a search of a person or of articles in the position of the person that may include:(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and(b) an examination of those items. strip search means a search of a person or of articles in the position 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. 1. Section 21 LEPRA relevantly provides that a police officer may without warrant stop search and detain a person, and anything in the possession of or under complete control of the person if the police officer suspects on reasonable grounds that the person has in his or her possession or under his or her control a prohibited drug. 2. Section 30 LEPRA provides that a police officer who is authorised to search a person may carry out a frisk search or an ordinary search. If the person has removed a coat or jacket, the outer clothing is what is under the coat or jacket: section 30(2). 3. Section 31 LEPRA provides: A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out. 1. Section 32 LEPRA relevantly requires a police officer conducting a search so far as is reasonably practicable to, inform the person if they will be required to remove clothing during search and white is necessary to do so, ask for the person's cooperation, conduct the search in a way at provides reasonable privacy and is as quick as possible, conduct the least invasive kind of search practicable and must not search the genital area of the person unless it is necessary to do so for the purposes of the search. 2. Section 33 LEPRA provides additional requirements for conducting a strip search. A police officer must, so far as is reasonably practicable, conduct the strip search in a private area and not in the view of a person of the opposite sex or any person who is not necessary for the purposes of the search. A strip search must not involve a search of the person's body cavities or an examination of the body by touch. A strip search must not involve more visual inspection than is reasonably necessary for the purposes of the search. 3. A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something that would create in the mind of a reasonable person and apprehension of the intended state of affairs. A reason to suspect that a fact exists is more than a reason to consider all look into the possibility of its existence. Some factual basis for the suspicion must be demonstrated and that basis must have some probative value. What is important is the information in the mind of the police officer at the relevant time. Regard must be had for the source of the information and its content: R v Rondo [2001] NSWCCA 540 at [53]. 4. No adverse inference can be drawn from a person insisting on their rights being adhered to and the law strictly followed, and such conduct should not be confused with conduct that can be considered suspicious: Straet v Bauer NSWSC unreported 16 March 1998, per Smart J. 5. The proper application of s 138 of the Evidence Act was considered by the High Court of Australia in Parker v Comptroller General of Customs (2009) ALJR 494. French CJ traced the history of s 138, and said at [28]: The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two-stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained. 1. Section 138(3) Evidence Act 1995 requires an examination of the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence; the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; and the difficulty, if any, of obtaining the evidence without impropriety or contravention of Australian law. Analysis of the magistrate's reasons 1. In ruling on the voir dire, the magistrate set out the facts in a way that does not differ significantly from the facts that I have recited. The magistrate referred to a couple of movements of the appellant that were apparent from the ICV footage, but not mentioned by the officer. Not much turns on that because it was accepted by the appellant before me that up until the commencement of the search that the officer had a reasonable suspicion to search the appellant for the possession of drugs. 2. The magistrate found that the appellant had been subjected to a strip search, so much is uncontroversial, but the important point is when was the strip search commenced and at that time what was the state of mind of the officer. 3. The magistrate found that the appellant had been subjected to a frisk search, but not an ordinary search and that by reason of the appellant's reaction to the officer reaching into his jeans that the officer formed the view that he was concealing something in his underwear and the officer thereby had reasonable grounds to conduct a strip search. The strip search was reasonable according to the magistrate because taking the appellant back to the police station would have incurred a delay that would have given the appellant the opportunity to conceal the item. 4. The magistrate found that the strip search conducted was the least invasive strip search available because it did not involve the removal of his clothing and that it involved a visual examination of the appellant's body. 5. The magistrate interpreted the privacy requirements of section 32 LEPRA were intended to prevent the display of body parts in public that were not ordinarily on display, and that the search conducted by the officer did not involve any exposure of the appellant's genitals except to the officer. The magistrate found that the strip search was conducted privately and that the proviso of 'so far as is reasonably practicable' applied and that the search was lawful. Consideration 1. In my view, the magistrate made a number of legal and factual errors in determining that the search was lawful and for the reasons that follow I have come to the conclusion that it was unlawful. 2. First, the search started out as an ordinary search and progressed to a strip search before the appellant pulled away from the officer. At that point in time, i.e. immediately before the appellant pulled away, there was no evidence that the officer had the requisite suspicion to conduct a strip search and it would not have been reasonable for him to hold that suspicion. The ICV footage demonstrates that the search commenced with the 2 police officers going through the pockets of the appellant's jacket. He undid the jacket and removed it, on request. At no time prior to the appellant unbuckling his belt, did either of the officers conduct a frisk search of his lower body, that is on the outside of his jeans. As soon as the appellant unbuckled his belt, the officer intended to examine the inside of his jeans around the waistband of his underpants. The officer reached forward quickly and took hold of the appellant's jeans in a way that made it clear he intended to search the inside them. That examination was by necessity an examination of the appellant's body or an examination by touch of an area that was not of the outer clothing, it came within the definition of a strip search and clearly involved a more invasive search than that provided for by a frisk search or an ordinary search. The officer did not turn his mind to the mandatory requirements of section 33(1) LEPRA to conduct the search in private, or in absence of any person of the opposite sex or any person unnecessary for the purposes of conducting the search, before proceeding. 3. Second, the reasonable suspicion that the officer had to conduct the second strip search was based on his own unlawful act. The appellant was entitled to insist on his legal rights and to resist the first unlawful strip search. Lawful resistance cannot be used as to provide a basis for reasonable suspicion: Streat v Bauer NSWSC unreported, 16 March 1998. 4. Third, at no time did the officer conduct a frisk search of the appellant's lower body, which was the least invasive type of search available and he thereby failed to comply with section 32(5) LEPRA. If the officer had performed a frisk search of that area, it is likely that he would have detected the drugs and this may have amounted to the reasonable suspicion to conduct a strip search. 5. Fourth, there was no evidence to support the magistrate's finding that conducting the strip search at the police station would have given the opportunity to the appellant to conceal the drugs. The officer did not give evidence that he was concerned about this possibility and it would not have been physically possible for the appellant to have done so, because he was handcuffed with his hands to the rear of his body. 6. Fifth, the suspicion that the officer said he had to conduct the strip search was not reasonable. The officer gave evidence that after the appellant pulled away that he became concerned that he may have had a weapon or dangerous item secreted in his pants or underwear, which the appellant could use to injure the police. There is simply no logical connection between the suspicion initially held by the officer about the possession or a prohibited drug and the fact that the appellant pulled away that could have resulted in the suspicion that the appellant was carrying a dangerous item. The magistrate did not make a finding accepting that the officer held that suspicion and I would reject it as unreasonable. It follows that there is no evidence of a reasonable suspicion sufficient to conduct a strip search at any time. 7. Sixth, the pulling out of the appellant's underwear and the removal of the drugs by the officer involved touching the appellant's body, which is prohibited by section 33(6) LEPRA. A strip search authorises the removal of a person's clothing and the examination of their body and their clothing, to locate items that may be of interest. The touching of a person's body is prohibited, particularly if they are cooperating, as the appellant had been doing. The officer gave evidence that his inspection of the inside of the appellant's underpants and the subsequent removal of the bag did not involve him touching the appellant's body. I reject that evidence because it defies logic and belief. 8. Seventh, the magistrate's interpretation of the privacy requirements contained in section 32 LEPRA is directed towards 'body parts not ordinarily on display' is plainly wrong. The requirement for 'reasonable privacy' applies to any search conducted by a police officer. By definition, a frisk search and/or an ordinary search cannot involve 'the exposure of body parts that are not ordinarily on display' including 'sensitive body areas such as the genital area'. On the magistrate's interpretation, the 'reasonable privacy' requirement would not apply to those searches and as such it should be rejected. Privacy is not defined by the Act, but is defined in the Oxford Dictionary to include 'the state of being free from public attention'. There is no good reason to give the word 'privacy' a narrow meaning. The purposes of the Act are served by the stated definition. No efforts were made by the officer to provide for reasonable privacy in the initial search. When a strip search is conducted the privacy requirement in section 32 is informed by the additional mandatory requirements in section 33 that the search must be conducted in a private area and not in the view of other people, especially of the opposite sex. As is demonstrated by the ICV footage, the strip search was conducted in public and without any regard for it being seen by other people. At the very least the appellant could have been taken to a nearby alcove area. The appellant was taken to that alcove area and subjected to a further search after the drugs were located, demonstrating the practicability of doing so. The officer acknowledged in cross-examination that the appellant was taken to that area for the later search because it was a private area. Alternatively, the appellant could have been taken to the police station or the police could have conducted the search in the back of a caged police vehicle, see Addouj v R [2016] NSWDC 47. 9. Having determined that the search was unlawful, it falls to determine if the evidence about the location of the drugs in the appellant's underwear should be admitted. The evidence must not be admitted unless the desirability of admitting it outweighs the undesirability of admitting the evidence obtained in the way in which the evidence was obtained. 10. The evidence is essential to the prosecution case and it has substantial probative value. 11. The offence is not a particularly serious one. The weight of the drug was small and the evidence was that it was for personal use. The circumstances suggest that the appellant was using the drug and that the appellant had probably been doing so for a couple of years. 12. The gravity of the contravention is significant. The extent to which the officer departed from the requirements of LEPRA is disturbing. The evidence suggests that the officer thought that he had the power to do what he did, which clearly he did not. The circumstances of the search did not justify the departure from the clear terms of the legislation. The protections included in the legislation cannot be allowed to be rendered nugatory by the ad hoc practices of particular police officers. The circumstances of this case involved a number of repeated infringements on the rights of the appellant. 13. Compliance by the officer with the legislation was simple. A competent frisk search would have been likely to detect the drugs and to have provided the reasonable suspicion to conduct a strip search. That search was then required to have been conducted in a private area, which was available, or at the police station or in a police vehicle. 14. I am not prepared to exercise my discretion to admit the evidence because the undesirability of admitting it outweighs the desirability of admitting it. The evidence of the police locating of the drug in the appellant's underpants is rejected. 15. It follows that there is no evidence to support the prosecution case. Conclusion 1. The orders I make are as follows: 1. Appeal against conviction is allowed. 2. I set aside the conviction and the penalty imposed by the magistrate. ********** Amendments 08 May 2020 - Typographical error in legislation name - Law Enforcement(Powers and Responsibilities) Act 2002 (LEPRA) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2020