The New South Wales Crimes Act 1900 gives the police power to search and seize property in certain situations. The Crimes Act is important because the traditional "common law" made by judges over the centuries strictly limited the police's powers of search, for example, police were prevented from searching a person at common law until they arrested the person.
The Crimes Act has extended the powers of the police to stop and search persons and vehicles in situations where they "reasonably suspect" the person or vehicle to be engaged in criminal activity.
There are other Acts of the New South Wales Parliament, such as the Drug Misuse and Trafficking Act 1985 and the Summary Offences Act 1988, which also give the police powers to search people and vehicles, and we will discuss each of these Acts in turn.
New South Wales Crimes Act 1900
The Crimes Act allows a member of the police force to stop, search and detain any person or any vehicles if:
In the case of a person, the police officer reasonably suspects the person of having or conveying anything that is stolen or otherwise has been obtained unlawfully or anything which has been used or is intended to be used in the commission of a criminal offence;
In the case of a vehicle, the police officer reasonably suspects that there is in the vehicle anything which is stolen or otherwise unlawfully obtained, or anything that has been used or is intended to be used in the commission of a criminal offence, in the vehicle.
The key phrase is "reasonable suspicion".
Summary Offences Act (NSW) 1988
The police have the power under this Act to search a person whom they suspect on reasonable grounds has a dangerous implement in his or her custody. Dangerous implements include things such as firearms, knives, or implements adapted for use for causing injury to a person or anything intended to be used to injure or menace a person or to damage property.
A search under this Act is, however, limited to the following:
Scanning by metal detection device.
Quickly running of hands over the person's outer garments.
An examination of any bag or any other personal effects.
Search of a school student's locker.
Search Under the Drug Misuse and Trafficking Act
Under this Act a member of the police force of the rank of sergeant or in charge of a police station or police vessel may at any time, with as many members of the police force as the member thinks necessary:
Enter into any part of any vessel or aircraft; and
Search and inspect the vessel or aircraft.
This power also extends to stopping and detaining any vessel or aircraft in which the member reasonably suspects that there is a prohibited plant or a prohibited drug which is contravention of the Drug Misuse and Trafficking Act,in the possession or under the control of any person.
A member of the Police Force may also stop, search and detain the following:
Any person in whose possession or under whose control the member of the police reasonably suspects there is any prohibited plant or prohibited drug; or
Any vehicle in which the member of the police reasonably suspects there is any prohibited plant or prohibited drug, which is in the possession or under the control of any person.
The following is a list of the situations where you could most expect to come into contact with the police for the purposes of questioning or the police conducting a search.
The list is set out in the form of questions, containing the conditions which are required to be satisfied for police officers to conduct certain searches.Where the questions posed in the checklist can be answered "yes", then it is likely that the police do have the power to conduct the particular search as described.
Does a Police Officer reasonably suspect you of having or conveying anything that is stolen or has otherwise been obtained unlawfully or anything which has been used or is intended to be used in the commission of a criminal offence?
In the case of a motor vehicle, does a Police Officer reasonably suspect that there is anything in the vehicle which is stolen or otherwise unlawfully obtained, or anything that has been used or is intended to be used in the commission of an indictable offence?
Does a Police Officer reasonably suspect a person of having any prohibited plant or prohibited drug?
Does a Police Officer reasonably suspect a motor vehicle to contain a prohibited plant or prohibited drug?
Does a Police Officer suspect on reasonable grounds that a person has a dangerous implement in his or her custody?
Does the Police Officer limit the search in this case to the following?:
Scanning by a metal detection device.
Running hands quickly over the person's outer garments.
An examination of any bag or other personal effects.
The search of a school student's locker.
Does the Police Officer limit a request to a person to remove any item of clothing being worn such as hat, gloves, or jacket?
Does a Police Officer, in the case of the search of a student at a school,allow the student to nominate an adult who is on the school premises to be present during the search?
In the case of certain motor vehicles, does a senior officer suspect on reasonable grounds that:
A vehicle of the same class as the vehicle is being or may have been used in the commission of an indictable offence? or
There are circumstances in or within the vicinity of that road, area or place that are likely to give rise to a serious risk to public safety.
The New South Wales Police are authorised to conduct strip searches, but the police generally attempt to limit the circumstances in which they occur. The New South Wales Police Commissioner's Instructions state that strip searching on arrest, should only occur after reasonable grounds established that there is a need for such a search.
The Commissioner's own Instructions indicate that:
Police are not to strip search a prisoner unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the body;
Police are not to strip search a prisoner unless the prisoner knows in substance the reason why the strip search is being undertaken;
Police are not to search body cavities; and
Police should only conduct a strip search at the time of arrest after reasonable grounds establish that there is a need for the urgency of the search.
Body Cavity Searches
New South Wales Police do not have the power to conduct a body cavity search against the will of the person in custody.
The Customs Act 1901(CTH) allows for a customs officer to detain and search a person where the officer suspects on reasonable grounds that a person is unlawfully carrying any prohibited goods.
"Prohibited Good" mean:
Goods whose importation or exportation is prohibited by the Customs Act or any other Commonwealth Law; or
Goods whose importation or exportation is subject to restrictions or conditions under the Customs Act or any other Commonwealth Law; or
Goods subject to the control of customs.
The Act also authorises frisk search to be carried out, but that must be carried out by an officer of customs whose is of the same sex as the person being detained.
A frisk search involves a quick search of the person by rapid and methodical running of hands over the person's outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person.
New South Wales and Commonwealth Police have the power to conduct body cavity searches under the Customs Act, when they are assisting in the investigation of drug importation at a custom's barrier.
If a detention officer or police officer suspects on reasonable grounds that a detained person is internally concealing a suspicious substance then the person can be internally searched if they provide written consent. If written consent is not provided then customs officials or the police can apply to a court for an order for an internal search of the person being detained.
Searching and seizing firearms and other items without a warrant:
The Police do not require a search warrant to detain and search a person and search any vehicle, vessel, aircraft, package or receptacle, if the police officer suspects on reasonable grounds that a dangerous article is or has been used in the commission of an offence.
Powers of entry in cases of domestic violence:
Entry by invitation.
A police officer is only able to remain in a dwelling house for the purpose of investigating an alleged domestic violence offence if allowed to remain by the occupier of the premises. The police officer is able to enter on the invitation of a person who apparently resides at the house, but is not entitled to remain if the occupier refuses to allow the officer to remain.
Entry by radio/telephone Warrant where entry is denied.
If a police officer suspects or believes a domestic violence offence has recently been or is being committed, or is likely to be committed in a house and it is necessary to enter the house to investigate whether or not an offence has occurred or take preventative action, a magistrate is satisfied that there are reasonable grounds for the police officer's belief may authorise a warrant to allow the police officer to enter the house and conduct the investigation.
Under the Search Warrants Act 1985 a police officer may apply to authorised Justice for a search warrant if the police officer has reasonable grounds for believing that there is or, within 72 hours will be in or on any premises:
A thing connected with a particular indictable offence,
A thing connected with a particular firearms offence,
A thing connected with a prohibited weapons offence,
A thing connected with a particular narcotics offence, or
A thing stolen or otherwise unlawfully obtained.
"Narcotics Offence" means an offence in respect of a restricted substance or a drug of addiction under the Poisons Act 1966, or an offence under the Drug Misuse and Trafficking Act 1985.
A warrant issued by a court authorises a police officer to:
Enter premises, and
Search the premises for things referred to in respect of each of the types of offences listed above.
When police conduct a search pursuant to a search warrant which has been issued the police must upon entry into or onto the premises or soon as practical after entry serve the Occupiers Notice on the person who appears to be the occupier of the premises and to be over the age of 18 years. The Occupiers Notice must contain the following:
Name of the person who applied for the warrant;
Name of the authorised justice who issued the warrant;
The date and time when the warrant was issued;
The address or other description of the premises, subject of the warrant; and
A summary of nature of the warrant and the powers conferred by the warrant.
When executing a search warrant the police must announce their authorisation by search warrant to enter the premises and give the person on the premises an opportunity to allow the police to enter.
The police executing a warrant may use such force as is necessary to attain entry to the premises. Once inside premises, police executing a warrant may if it is reasonably necessary to do so, break open any receptacle in or on the premises for the purposes of the search.
WHAT TO DO IF THERE HAS BEEN A VIOLATION OF YOUR RIGHTS
If you have been mistreated or have a complaint to make against the police service.
If, as a result of contact with the police, either before or after arrest,you feel as if the police have acted outside their powers, or your rights have been breached, then you take the following action:
Make a complaint against the police involved to the local area command to which the police are attached. The police will conduct an internal investigation to determine how much substance there is in the complaint and if it cannot be resolved satisfactorily, it may be referred to the New South Wales Ombudsman.
Make a complaint directly to the New South Wales Ombudsman. The Ombudsman has the power to investigate complaints against police. The Ombudsman, after acknowledging receipt of a complaint, will keep you informed as to any investigatory process which occurs.
This action can be taken against police officers if they have acted outside their powers.
If the police are involved in an illegality or impropriety in the course of obtaining evidence, which is subsequently used against you in a court case, the court, in the exercise of its discretion, can exclude that evidence from being used against you. The extent to which the discretion is exercised generally relates to the severity of the illegality or impropriety on the part of the police.
This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.