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In Attalla the NSW District Court has noted egregious disregard by NSW Police personnel of requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [aka LEPRA], awarding the plaintiff $112,387 for an unjustified and incorrectly conducted strip search alongside unlawful detention. The Act specifically referred to regard for privacy in the conduct of searches.
Steven Attalla was arrested in a public place during March 2015 for hindering police in the execution of their duty. At that time he was 53 years old, with no relevant criminal record. Senior Constable Courtney Cruickshank told Attalla that she reasonably suspected him of being in possession of prohibited drugs. His ‘hindrance’ took the form of rejecting her proposition that he be searched. Attalla was then wrist locked, handcuffed, taken in the rear cage of a police wagon to Kings Cross Police Station and strip searched. That involved him removing his pants and underpants, lifting his genitalia to allow inspection and squatting while naked. Proceedings after a Court Attendance Notice for hindering police were ultimately dismissed. Attalla sued the State for wrongful arrest, and assault and battery by the police officers.
The State conceded that both the strip search and his continued detention after that search were unlawful. The Act provides for warrantless stop, search and detention of persons whom NSW police officers suspect on reasonable grounds of having control/possession of anything stolen, prohibited plants or prohibited drugs. Section 32 of the Act specifically refers to privacy, mandating protocols regarding searches by a police officer or other person. The search must be conducted “in a way that provides reasonable privacy for the person searched”, “as quickly as is reasonably practicable” and as least invasive as practicable in the circumstances. Further, conduct of the search must not encompass the person’s genital area unless the police officer or person suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
Attalla referred to insulting language. More saliently, he characterised the search as an invasion of privacy, with hurt, humiliation, disgust and embarrassment. “It was outrageous. It was something that I thought I'd never ever be in a position to be treated in such a humiliating fashion". The State, in contrast to Officer Cruickshank, conceded the search was unlawful, "humiliating" and "difficult".
Is there a systemic problem? The Court noted
Officer Cruickshank admitted a lack of familiarity with the requirements of s 31. The pre-requisites in s 32(2), (3), (4), (5), (6), and (7) were not established on the evidence. Yet the State, to the conclusion of submissions, maintained that the strip search was only a technical breach. Neither of the two male police officers who conducted the strip search gave evidence of a suspicion on reasonable grounds that it was necessary to search the genital area of Mr Attalla for the purposes of the search, as s 32(6) requires.
In considering damages the Court indicates that by the time of the strip search Officer Cruickshank no longer suspected that Attalla possessed prohibited drugs. Damages were aggravated by the absence of any evidence explaining the purpose and need for the strip search. Although it might be possible that a strip search could reveal drugs that might not have been identifiable by an ordinary search, that was not explained and there was no evidence as to whether alternatives to the invasive procedure were considered.
The Court thus commented
The State's concession in relation to the strip search illustrates that the police officers have used a most invasive power without the slightest justification. None of the several requirements in ss 31 and 32 of LEPRA were the subject of evidence or submissions. The grievous nature of the offensive conduct might be mitigated in circumstances of urgency or turmoil, but here the admitted worst offence, the strip search, was done in the relative peace of the police station, where there was no resistance from Mr Attalla. Even this did not produce any consideration of the requirements of the law governing strip searches by any officer, apparently because Officer Cruikshank had some time ago determined to proceed with the strip search. I am not persuaded that she retained a bona fide belief in the need for the strip search to locate the once suspected drugs.
The Court noted New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 and Adams v Kennedy (2000) 49 NSWLR 7 regarding the award of exemplary damages, with Ibbett characterising that award as ‘a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government’. The State's schedule of damages referred to the humiliation of Mr Attalla from its unlawful conduct, but, in the Court’s view, grossly understated the appropriate level of damages.
What can we make of the judgment? It is not a crime to be busy texting while sitting on a fence in one of the busier streets of Darlinghurst at 3:30 am but police might well have suspicions. Those suspicions need to be reasonable. More importantly, law enforcement agencies need to ensure that their personnel are acquainted with and abide by law regarding detention and searches. The unlawful detention in Attalla is regrettably not isolated - see for example New South Wales v Quirk [2012] NSWCA 216, Majindi v Northern Territory of Australia (2012) 260 FLR 459, Randall v New South Wales [2013] NSWDC 277, Hamilton v State of New South Wales (No 3) [2016] NSWSC 1311, Raad v State of New South Wales [2017] NSWDC 63, Costello v New South Wales [2017] NSWDC 152, Hemelaar v Walsh [2017] QDC 151, Lule v State of New South Wales [2018] NSWCA 125, Gibb-Smith v State of New South Wales [2018] NSWDC 204 and Johnson v State of South Australia [2019] SADC 35 - and arguably has attracted inadequate remedies, with damages rarely more than $30,000. ...
[T]he salient conclusion is that disregard of the personal sphere, extending beyond strip searches to cavity searches and coerced provision of DNA is permissible in Australian law if agents of the state act lawfully. In Attalla they did not and it disquieting that the casualty in this instance was required to hold the state to account.The 2019 Rethinking Strip Searches by NSW Police report by Michael Grewcock and Vicki Sentas notes
There are some common characteristics but also important variations in police powers and practices relating to strip searches in Australian jurisdictions. In most Australian jurisdictions, police powers are embedded in several pieces of legislation rather than a consolidating Act like LEPRA, supplemented by guidance in the form of Statutory Regulations and Codes of Practice, Standard Operating Procedures, Manuals and other internal police guidelines. Typically, it is these less-accessible non-statutory documents that provide important detail as to how police ought to interpret the statutory thresholds for – and restrictions on – the conduct of strip searches. The lack of standard statutory frameworks and the opaque nature of internal guidance, combined with the general difficulties in regulating police discretion prior to charges reaching a court, makes identifying systemic patterns regarding strip search practices across Australia more difficult. However, it is important to compare key features of the different Australian strip search regimes as a first step to considering possible reforms in New South Wales.
4.2 LEGAL THRESHOLDSIn all jurisdictions, with some narrow exceptions, reasonable suspicion operates in common law and statute as the initial threshold for conducting a personal search in the field without a warrant and before arrest. However, the suspected offences for which personal searches can be conducted vary.Table 13: Personal search power before arrest if officer has reasonable suspicion of the following offencesNSW - Possession of stolen or unlawfully obtained goods, indictable offences, relevant offences (dangerous substances, weapons, firearms, explosives), and prohibited drugs (s21 LEPRA).VIC - Prohibited drugs, volatile substances, weapons and graffiti implements. NB: if a search is conducted in a designated area under ss10D and 10E Control of Weapons Act, no reasonable suspicion is required.SA - Possession of a controlled substance; possession of stolen goods; possession of an object that constitutes an offence, or evidence of the commission of an indictable offence.QLD - Possession of unlawful dangerous drugs, knives and weapons, commission of a summary offence and consorting.TAS - Hawking, stolen goods, anything intended for use in committing an indictable offence, poisons or liquor, controlled substances, firearms and objects related to family violence.ACT - Drug offences, if police have consent of the person or if taken into lawful custody, or under a warrant or in circumstances of seriousness and urgency or under a court order; Possession of anything relevant to a serious offence or something stolen or otherwise unlawfully obtained, and the personal search is necessary to prevent the thing from being concealed lost or destroyed and it is necessary to exercise the search without a search warrant because the circumstances are serious and urgent. NB: this later provision of the Crimes Act only authorises frisk or ordinary searches.WA - Possession or control of anything relevant to any offence.NT - Carrying anything connected with an offence or possession/conveyance of a dangerous drug.
The Australian Capital Territory is the only jurisdiction which sets out additional conditions for the exercise of search powers, as well as requiring reasonable suspicion of a specified offence.
Differences in the definition of a strip search
In most Australian jurisdictions, there are distinctions between (variously defined) basic, ordinary, frisk or pat-down searches, which are limited to touching or seeking the removal of outer clothing, and full, intimate or strip searches involving the removal of some or all of a person’s under-clothing. Across all jurisdictions, the person’s cooperation should also be sought, but in the event of it being declined, police can use “reasonable force” to conduct the search. Intrusive intimate or cavity searches, which require either a warrant or the authorisation of a senior police officer, and typically involve some closer inspection and/or touching of the anus or vagina, can also be conducted if carried out by a registered medical professional.
• In Queensland, while searches are defined to include a frisk search, there is no specific definition of a strip search. Rather, a police officer conducting a lawful search under the relevant Act “may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body”.
• Likewise, in the Northern Territory, the statutory power regarding personal searches is structured around the right of the police to search someone’s ‘person’ and his/her clothing without distinguishing the types of searches. A category of ‘non-intimate procedure’ includes, “examining a part of the body other than genitals, anal area, buttocks or breasts” on approval of a superintendent or higher, and does not prohibit touching. “Intimate procedures” requiring a court order include “examining the body either internally or externally”.
• South Australia defines an “intimate” (strip) search more expansively than New South Wales to include touching: “... a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts” and falls short of an intrusive search requiring a medical practitioner. As discussed below, police may only perform an intimate search when a person is in lawful custody on a charge.
Victoria, the Australian Capital Territory, Western Australia and Tasmania all have standalone, similiar definitions limited to visual inspection:
• Victoria and the Australian Capital Territory define strip searches in an identical manner to New South Wales.
• Western Australia and Tasmania use a similar definition to that of New South Wales. Albeit framed in different language (for example, in Western Australia, “search the person’s external parts, including his or her private parts”) like New South Wales, these are only visual searches, and exclude visual inspection of body cavities.
Notwithstanding definitional distinctions, there is a common principle across all states that personal searches should be no more intrusive than is necessary for the purpose of investigating evidence on or in the control of the person in relation to the suspected offence. Moreover, strip searches should be conducted as a last resort and, in most (but not all) jurisdictions, only when required by the seriousness and urgency of the circumstances.
Thresholds for strips searches
Nationally, the two key differences in strip searching laws are the circumstances required to justify a strip search, and whether they are authorised to be used in the field and in police stations, or only post-arrest in police stations. In the field: expansive approaches In New South Wales, as discussed at 2.3 above, strip searches that are not conducted in police stations or places of detention should only occur when “the seriousness and urgency of the circumstances make the strip search necessary” (s31(b) LEPRA). However, as discussed at 3.1 above, it is clear that strip searches are increasingly being conducted at music festivals and other sites such as railway stations, often in relation to lower-level drug offences (such as possession of a small quantity of drugs for personal use), and in circumstances where there is no immediate, serious threat to personal safety. In effect, the combination of a drug detection dog’s reaction and the ‘positive’ outcome of a strip search are being used routinely to constitute the reasonable suspicion required as an initial threshold for an arrest under s99 LEPRA for offences that may also be dealt with by way of a caution or on-the-spot fine.
Strip searches in the field are also enabled for drug and other offences by the legislation in Queensland, the Northern Territory, Western Australia and Tasmania. In each of these jurisdictions, the power is broadly defined and vested largely in the exercise of police discretion. Moreover, there is no consistent threshold across these states for when a strip search may be conducted.
In Queensland, a strip search can be conducted where “necessary” in relation to a “prescribed circumstance” such as the possession of “an unlawful dangerous drug”.
In the Northern Territory, police can conduct personal searches of a person or their clothing if there is reasonable suspicion that the person is carrying anything connected with an offence or possesses a dangerous drug, and the seriousness and urgency of the circumstances warrants the search. In addition, a “non-intimate” procedure (an examination of the body except for genitals or breasts) can be authorised by a Superintendent who reasonably suspects the person has committed a crime, or if they are in custody charged with an offence punishable by imprisonment.
In Western Australia, a strip search can be conducted if there is reasonable suspicion a person possesses anything in relation to an offence. No other thresholds are set out in the legislation.
Offence based/post arrest strip searches: Victoria, South Australia and the Australian Capital Territory
In diverse ways and to varying degrees, the legislation in Tasmania, Victoria, South Australia and the Australian Capital Territory takes a less expansive approach to strip searches in the field.
In Tasmania, either a “basic” (ordinary search) or a strip search can be conducted if a police officer has a “reasonable belief” the person possesses a prohibited drug. Notably, if the officer has a reasonable suspicion the person has drugs concealed in their body cavities, the strip search power is not to be used. Instead, police must bring the person before a magistrate to determine if a medical practitioner will be authorised to examine the person. The other circumstance where strip search may be used is on execution of a search warrant of a place, after a person has been arrested for an offence.
Victoria - In Victorian legislation, “full” (strip) searches in a police vehicle or other private area are limited to situations where a person is reasonably suspected of possessing a weapon and if, after a personal search, there are reasonable grounds for believing the person is concealing the weapon on their person, and there are reasonable grounds for believing that the seriousness and urgency of the circumstances requires a strip search to be carried out.
It is noteworthy that both the Victorian and Tasmanian thresholds for strip searches (reasonable grounds to believe) are higher than the reasonable suspicion required in New South Wales. According to the Victoria Police Manual (VPM), “full” (strip) searches should “only be considered and approved when authorised by legislation or where there are reasonable grounds to believe that a pat- down search may not reveal all available evidence or other things” (emphasis added). In relation to a “large number of persons at an entertainment or similar venue”, approval from a Superintendent to conduct a strip search is required. The considerations to be taken into account by a Superintendent outlined in the manual are: the degree to which the person should be searched; the nature of the offence and the circumstances of the arrest; the demeanour, recent behaviour and prior history of the person being searched; whether there are reasonable grounds for conducting the search; and whether the overarching principles (see below) have been considered.
The VPM states that all personal searches are subject to an overarching principle that when “considering whether to search a person [police officers] must balance: the possible infringement of the individual’s rights against any perceived security risk; and the necessity of the search against the degree of forced used, the difficulty of the search, the inconvenience caused by the search, and the advisability of continuing the search in these circumstances”. This overarching principle must be taken into account with the factors outlined above before a full (strip) search can be authorised but does not appear to be stipulated in any legislation.
While the Control of Weapons Act outlined above provides the only explicit authorisation in law for the use of strip searches in Victoria, the extent to which police exercise their discretion to conduct strip searches and apply the strip search policy principles is unclear. As in New South Wales, the scope of personal searches for drugs has expanded considerably through the use of sniffer dogs (Passive Action Detection Dogs) “in street areas where (the police believe) there are high levels of open-air drug trafficking”, in high profile policing exercises such as Operation Safelight, launched in April 2017, and at large events such as music festivals. Anyone seeking to enter events covered by s90 Major Events Act 2009 can also have their bags searched and be required to turn out their pockets without a requirement of reasonable suspicion. Reported amendments to the legislation extending this power to music festivals have failed to eventuate thus far.
Two jurisdictions largely limit strip searches to after a person has been arrested and taken into police custody.
In South Australia, intimate (strip) searches by a police officer and intimate intrusive searches by a medical practitioner can only be conducted on a person taken under arrest into police custody.
Similarly, in the Australian Capital Territory, strip searches are limited to those persons under arrest and brought to a police station. The one exception to this is an “emergency” situation where it is considered reasonably necessary to conduct a personal search to prevent the concealment, loss or destruction of anything connected with a drug-related offence and in circumstances of such seriousness and urgency to require the power to be exercised without a warrant. Such a search may include the removal of any clothing that the person is wearing.
Once an arrested person is brought to a police station, a strip search may be conducted if there are reasonable grounds for suspecting a person possesses evidence of an offence or a seizable item, that inspection of a person’s body will provide evidence of a person’s involvement in an offence, and that it is reasonably necessary for the purposes of recovering the thing or discovering the evidence.
In general, once a person is taken into police custody, there are few restrictions of the type of offence for which a strip search can be conducted. However, the norm across Australian jurisdictions is that reasonable suspicion is still required and that some clear evidentiary or personal safety purpose needs to be served for a strip search to be lawful. It cannot be conducted as a matter of routine.
