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[2011] NSWDC 126
District Court of NSW
2011-05-13
Phillips J, Tobias JA
Original judgment source is linked above.
Judgment 1Janelle Anne Boekeman appealed to this Court from decisions of the Armidale Local Court on 24 January 2011. 2On that date she was convicted of three matters; two of which were an assault of a police officer in the execution of his duty and one an offence of resisting an officer in the execution of his duty. 3Two of the matters, namely one of the assaults and the resist matter were dealt with discretely by me. I dismissed the appeal and confirmed the convictions and, for what it is worth, varied the penalties that had been imposed by the Magistrate. 4I am now concerned with the remaining matter of an assault of a police officer in the execution of his duty. The facts as they relate to the first two offences are relevant contextually to my consideration of the remaining appeal. Her appeals in each instance were against her conviction and should they fail she appeals against the severity of the sentence imposed. 5The offence now under consideration is said to have been committed at the Armidale Police Station. Significantly, the events which gave rise to the charge were captured on CCTV. There are some inadequacies in what was captured by the CCTV, however, it is a significant and important piece of evidence in the case. I should note that there is no sound recording of the events depicted in that footage. 6I am mindful of the caution with which the Courts have approached the use of photographic evidence, particularly as a means of proof of matters of fact. (See Blacktown City Council v Hocking [2008] NSWCCA 144, particularly per Tobias JA [167] ff). 7However, CCTV footage is different in that it is not still photography and is contemporaneous. Still, there are limitations to its use, which I have noted, including the absence of sound. 8Before I come to a review of the facts as they relate to the appeal now under consideration, I think it is important to briefly outline the background circumstances as to how it is that the appellant came to be at the Armidale Police Station in the early hours of 26 September 2009. 9The police previously went to an address in Cookes Road, Armidale in response to an allegation of something in the nature of a home invasion, the particulars of which are of little significance. During the course of police inquiries in relation to that matter they learned that a person by the name of Jace Lancaster ("Lancaster") was or may have been involved in the commission of that offence. They learnt that he was staying at 7 Conningdale Crescent, Armidale. 10As a result of receiving that information Sergeant Kirk ("Kirk"), Senior Constable Tuckwell ("Tuckwell") and Senior Constable Kentish ("Kentish") went to that address and were admitted by Thomas Spinks. Lancaster was identified and arrested. At about that time the appellant intervened and there was a confrontation between her and police which gave rise to the two charges which I have dealt with, namely matters of an assault of a police officer and resisting an officer in the execution of his duty. 11There was a degree of violence between police and the appellant and she was arrested at that scene, put in a police vehicle and taken to the Armidale Police Station. 12It should be noted at this point that the officer who is said to have been assaulted at the house was Kentish. He is also the police officer who is said to have been resisted by the appellant at the house. 13The appellant, on her own admission, had been drinking. At T.66 of the 23 July 2010 she was asked: - Q. On the night did you consume some alcohol? A. Yes. Q. How much alcohol? A. Quite a bit, I am not sure exactly. Yeah I am not sure. Q. What time did you start drinking that evening? A. It would have been around 6.30. Q 6.30. A. Ish, that's just what I can't recall the exact time. Q. And when did you have your last drink? A. I'm not sure, but I know I was in bed around 12. Q 12 o'clock A. Yes. 14From the charge sheets it is not at all clear as to what time it was that the police arrived at the Conningdale Crescent address. According to Kirk (at T.29:32) it was at about 2.30am on 26 September 2009. I accept that as being about right. 15As an aside to the narrative, I note that the assault that is the subject of this appeal took place between 3.45am and 3.46am, which is verified by the timing on the CCTV footage. In other words, about four hours after the appellant had her last drink. 16I turn to a review of the evidence of what happened after the appellant arrived at the Armidale Police Station. The Custody Management Record, which is part of Exhibit A, states "time of arrival" at 3.25am. The CCTV footage shows her being placed in a cell in the dock area. Initially the door of the cell was left open 17The Custody Management Record does not coincide with the timing on the CCTV footage. It suggests that the appellant arrived at the police station at about 3.20am. 18Between the time she entered the cell and was spoken to by Tuckwell at 3.28am she seems to be sitting quietly with her back to the wall and her feet up on the seat. 19This is what is depicted in the CCTV footage. I shall later review what the various witnesses say was being said at that time. 20According to the CCTV, at about 3.28am,Tuckwell went to the cell in which the appellant was and had a conversation with her for about two minutes. After Tuckwell left she remained sitting and appears to be calm until she stands at 3.37am to attract Senior Constable Heath Aiken's ("Aiken") attention. Aiken was the Custody Manager at the time and for most of the time up until that point he was the only officer in the dock area, although other police came and went. During that time Aiken seems to have been largely engaged with a computer, which was on a desk in the dock area. Nobody seems to have been paying any particular attention to the appellant. 21At 3.37am the appellant attracts Aiken's attention. He goes to her cell, opens the door and she walks to the far left cell, which is apparently where the toilets are. He opens the door, she enters by herself, the door is shut and she is left there for about two minutes. Aiken then opens the door and the appellant walks to the middle cell in the dock area and sits down. This is recorded as being at about 3.40am. Aiken talked to the appellant for about a minute. 22At about 3.42am Aiken left the dock area. At that point there is no police officer in the dock area at all. It remains unattended for about two minutes. 23Whilst the police were away the appellant remains quietly in her cell or apparently so, according to the CCTV. 24Aiken returned to the dock area with Kentish. Kentish puts on some white gloves while walking into the room. Aiken is already wearing gloves. This is recorded as being at 3.43.44am. 25At 3.43.54am Kentish opened the appellant's cell door and stands to the left with Aiken standing to the right of the cell. There is clearly conversation involving at least the appellant and Kentish and there seems to be an argument between the two of them. 26At 3.44.19am Kirk arrives and stands beside the left hand side of the door and becomes involved in the conversation between the appellant and Kentish. 27At 3.45.45am Tuckwell arrives and walks to the counter in the dock area. 28At 3.45.47am the CCTV footage shows Kentish entering the cell and putting his hands on the appellant's neck. She falls to the right corner of the seat against the cell wall. Kentish leans over her. The appellant seems to push Kentish away from her or attempts to push Kentish away with her legs. Aiken is leaning over the appellant inside the cell. Kentish pulls on the appellant's leg. Shortly after that, he throws three punches at the appellant's face while Aiken has hold of her. It is not clear as to whether the punches directed at the appellant by Kentish are with a closed fist or open hand but it is common ground they connected. 29Kentish is leaning over the appellant. Something falls to the ground and Kentish picks it up and gives it to Tuckwell. It seems that what had fallen to the ground were Kentish's glasses. Aiken is still holding the appellant down and Kentish and Aiken again lean over the appellant. It is not clear what they are doing, at least from the CCTV, which seems to be blocked by the cell wall. 30At 3.46.10am Kentish and Aiken walk out of the cell and the appellant resumes her seat on the bench in the cell. The door is shut by police. Kentish removes his gloves and puts them in a bin and is returned his glasses by Kirk, which he puts on. Kentish and Kirk walk out of the dock area and Aiken and Tuckwell remain behind the counter. 31It should be noted that it does not appear during the course of those activities that police took anything from the appellant at all. 32At 3.47am the appellant attracts Aiken's attention and he comes over to the cell. Aiken opens the cell door and takes something from the appellant and, again, closes the door. Aiken puts the object that he has taken from the appellant on the counter. 33It is said by the appellant that it was an earring that was in her back pocket in a tissue. 34That is consistent with the property docket, which was maintained by police, which shows that the only item of property of the appellant in police custody is one silver earring. That property document is again part of Exhibit A. 35That is also consistent with the proposition that police did not take anything from her during the course of the activities involving Kentish, Aiken, Kirk and others shown on the CCTV footage which I have just related. 36I now turn to what was said by the various participants in their evidence of these events. 37I propose to review the police evidence first. 38Kentish, who is said to have been the victim of this assault, said at T.10 that police took the appellant back to the police station. When they got there she was yelling, was abusive and being very aggressive towards the police. He said that they placed her in the dock, which is shown on the CCTV. She refused to give her name. He conceded that she gave her name to another officer, probably five or ten minutes later. 39I interpose here that that is consistent with the CCTV which shows a conversation between Tuckwell and the appellant commencing at 3.28am, some seventeen minutes before the alleged assault. 40According to Kentish, and it is a little confusing, he said at T.10: I think she gave her name to another constable at that stage after probably five, ten minutes, and she had items on her that - under our rules and regulations we must remove property from people, not to harm us and not to harm themselves when we place them in custody. I spent about two minutes explaining to her about this. She still refused to comply and she said that she can't do that because there is no female here, and I said 'well we have to protect ourselves and herself' and she still refuses to take the thing, the items off herself. We could see a bulge in her back pocket. We could see a few other things she had on her, I am not sure, I can't remember what they are, but we still said we had to search her and with that she went back into the dock. I followed her in, I actually put my hands on top of her shoulders to try and sit her down. She then pushed out with her right arm, pushed herself back into the dock. I followed her in. There was a bit of a scuffle ensured (sic). She pushed me away, sort of - as she went back into the dock at one stage she sought of had hold of me and dragged me towards her and I pulled my leg up to put on the seat so I wouldn't go forwards, next minute she is kicking, she kicked me in the groin a number of times. As I recovered I hit her with a palm strike to the head to get her to cease kicking. She kept kicking. I hit her again with a palm strike to the head and she ceased her kicking. We removed property from her and removed myself from the dock. Senior Constable Heath Aiken was in there with me at the time, trying to help me because of the small area, it was hard to move around. We couldn't use any other means of restraint due to the restrictions and the closeness of the dock and that is about it. 41At T.11:03 he stated that he thought the appellant was fairly well intoxicated. 42During cross examination the following exchange occurred at T.22 commencing at line 4:- Q. Well there is prior to you entering the cell I suggest, would you agree with this, obviously some animated conversation. A. Correct. Q. And you say that what is animated about is, if this is not fair to your topic you are saying words to the effect, 'We have to search you, I'm required to search you, it is our duty to search you, and you will comply with that request? A. Correct. Q. And if you do not comply you will be forcibly searched? A. Correct. 43At T.23:37 he was asked:- Q. And so what is the purpose of the search? A. To remove the property that could damage us or herself. Q. But you see isn't the problem with that, that she was in custody for a significant period of time between when she is taken into the cell dock area and when the search occurs? A. We're still trying to establish identity for a start, because she still refused to give her identity and was abusing us all the time, we gave her time to settle down, we gave her time to comply with the search which she didn't comply and eventually we had to search her. Q. Would you accept she was in custody for a period of time? A. Yes. 44In terms of what was the product of the search according to Kentish, he said at T.25 after noting that she had objected to being searched by him and wanted to be searched by a female officer: - Q. Well it is not a pat down search is it? A. it is because there is a lump in the back of her pocket, on her back pocket where were tissues we didn't now what it was, there was an earring we got out of it. 45He remembered searching her back pocket because there was a lump in the back pocket. 46It is hard to reconcile this version of events with what is seen on the CCTV footage, particularly in relation to what he says was the product of the search. It is worth noting here that there is no evidence from police as to why she was being held without processing of the offences for which she had been arrested. 47This evidence is also inconsistent with that of Tuckwell who said he had already obtained the offender's particulars and given them to the Custody Manager, Aiken, well before the "search". 48Kirk gave evidence. His evidence on the topic commences at T.31. According to him the accused was escorted into the dock area and was still struggling with and abusing police. He said that he attended to other matters after that and was speaking to a couple of other police. A short time later he returned to the custody area and he said at T.31:22 A short time later I returned to the custody area where I heard Senior Constable Kentish say words to the effect of, "Empty your pockets and pull the property off your person", to the accused. The accused said words to the effect, "I don't have to, I know my rights, you have to get a female officer out here to search me." Senior Constable Kentish said words to the effect, "Well we haven't got a female officer on tonight, so you'll have to empty your pockets, because we have to search you." Again the accused said words to the effect, "I don't have to". At that stage Senior Constable Kentish said to words to the effect, "If you don't empty your pockets then I'll search you". The accused said words to the effect, "I don't have to". At that stage Senior Constable Kentish went to grab the accused, she has thrown herself back on the dock and pulled Senior Constable Kentish in on top of her. Senior Constable Kentish attempted to take property from her pockets and that sort of thing, and the accused has then violently started struggling, saw the accused kick Senior Constable Kentish in the groin, Senior Constable Kentish said words to the effect, "Don't kick me". I then seen the accused kick Senior Constable Kentish around the legs a couple more times. At that stage Senior Constable Kentish has punched the accused in the face, he continued to try to search her, the accused continued kicking and again I saw Senior Constable Kentish punch the accused in the face. At that stage the accused has said words to the effect, started crying and said words to the effect, "You've punched me". Senior Constable Kentish said to her, words to the effect, "Well if you continue kicking me I'll continue punching you until you stop. The accused has then stopped. Senior Constable Kentish and Constable Aiken have searched the accused, removed some property from her and then we've locked the accused in the dock. 49It should be noted that the CCTV footage shows Kentish putting on rubber gloves before he went to speak to the appellant in the cell in which she was housed. The CCTV footage is not consistent with Kirk's assertion that the appellant was searched and something removed from her during the course of that search. 50There was no mention, according to Kirk, that Kentish explained the purpose of the search as related by Kentish. 51He noted at T.32 that at the time he thought that the appellant was:- ...lightly to moderately affected ... by alcohol. 52It should also be noted that the CCTV shows the appellant's arrival at 3.20.55am. She lets herself into the cell. She is not struggling with police. 53A Field Arrest Form is part of Exhibit A. It is incomplete and the author is not nominated. The arrest time is shown at 3.15am. The appellant is noted as being mildly intoxicated. It seems to have been completed by Tuckwell. (See his evidence at T.45. Therefore, it was completed shortly after 3.28am). 54This is consistent with the appellant's evidence that she had not had a drink since some time shortly before midnight, namely about four hours before the event. 55In cross examination at T.34 he said the following:- Q. I want to take you to the police station, did you hear Kentish say that he intended to search the defendant? A. Senior Constable Kentish asked her to remove her property from her person, so we could book it into custody. Q. And did the defendant say words to the effect, "I want to be searched by a lady police officer"? A. She said that she knew her rights, words to the effect, she knew her rights and we'd have to get a female police officer to search her. Q. And did she then say, I suggest to you she then said, "I'm prepared to be searched by anyone but Senior Constable Kentish"? A. She possibly could have said that, I don't recall whether she has or she hasn't. Q. She said, "Because Kentish assaulted me earlier today"? A. She could have said that too. Q. And I suggest that Kentish, Senior Constable Kentish entered the cell voluntarily, stepped in? A. Well from memory I believe Senior Constable Aiken may have had a word to her, I definitely had a word to her at the dock door and said, "Well just remove your property", prior to Senior Constable Kentish coming in. Q. And Kentish then, Senior Constable Kentish then pushed her back against the bench? A. No she threw herself back. Full back. Q. Was Kentish touching her when she threw herself back? A. I believe he had a hand on her yes. Q. Whereabouts? A. I believe he might have put one on her chest and went to grab her with the left arm on her right arm. Q. Did he put that - did he appear to put that hand onto her chest with considerable force? A. No, no she started going back prior to Senior Constable Kentish grabbing her. Q. And I suggest that she was on the - there's a sort of bunk or bed thing there? A. It's a seat, a steel seat. Q. And Constable Kentish was over the top of her? A. Once they went back in the dock yes. Q. And Constable Aiken was in the cell, was in the dock? A. He was in the corner of the dock yes. Q. They were both pinning her down and searching her? A. Well they were searching her but she had fallen back in and she was kicking and carrying on so he may well have started to pin her down, due to the fact she was struggling violently. Q. I suggest that you (sic) punched her a number of times? A. After he got kicked in the groin yes that's correct. Q. I suggest that he got kicked in the groin that was in circumstances when she was held prone on the ground, or prone on the bench with the police over the top of her, in a very confined space? A. That's correct. Q. And in circumstances where she had said, "I want anyone to search me but Kentish"? A. Well sir she was offered the opportunity to empty her pockets prior to all this going on and she refused to do so, a number of police spoke to her and said, "Empty your pockets and he won't search you" Q. There was ample opportunity for any police officer or a number of police officers other than Kentish to search her, was there not? A. There was, yes that's correct. 56Thus, according to Kentish, the only reason for the search was to take property off the appellant because she had refused to do so voluntarily. There is no obligation on either the police or a person in custody to oblige the surrender of a person's property or for a person to surrender it. 57Aiken was Custody Manager at the Armidale Police Station in the early hours of 26 September 2009. He was on duty when the appellant was brought to the police station and had a conversation with her. He formed the view that she was moderately intoxicated. During his initial brief conversation with her, according to him, he asked her whether she had any property on her and she said that she did but he was not getting it. 58He said that he explained the procedures in relation to people brought into custody to her, namely that they are searched and all property is removed from them. He said that she still declined to hand over the property. (T.37). 59At T.38 he gave the following evidence:- Q. Do you remember what she said? A. She said, "Yes you aren't getting it", "Yes you're not getting it". She indicated that she had property in her pockets, I then left the charge room and sought the assistance from Senior Constable Kentish and Sergeant Kirk, we all entered the charge room again, Senior Constable Kentish had a conversation with the defendant in relation to the property. Q. Do you recall what that conversation was? A. Yes it was still that to remove her property I believe the defendant asked for a female officer, but there wasn't one on shift. That's the conversation I remember. Q. And what was the manner of the accused at that time? A. Very verbally abusive, she wouldn't co-operate with any request in relation to handing her property over, she was informed that you know if she didn't want to hand it over she would be searched. Q. How many times was she asked to submit to the search? A. I know I asked her a few times, at least twice after I explained the procedures of when someone comes into custody and Senior Constable Kentish also explained the procedure to her as well. Q. What occurred then? A. Senior Constable Kentish took hold of the defendant, she's - what I believe, she's fell back into the - or laid down on the dock seat, in like a - she wasn't laying down nor was she sitting up, it was more, she was on an angle up against the back wall. I went into assist Senior Constable Kentish, I was more in front of Senior Constable Kentish trying to control her upper torso area, she started thrashing her arms about and twisting and making it very difficult to try to control her to search her pockets. I couldn't get hold of her, basically because of the amount, how she was twisting and thrashing her arms about. During that time I felt her legs start kicking out, I felt them brushing the left side of my legs, they were doing that quite quickly, I say her legs were kicking out, during that time I was still trying to control her arms, I felt, I heard Senior Constable Kentish cry out and that when he said - pardon - yeah I heard Senior Constable Kentish cry out or wince what I believed was the sound of he was in pain, I then saw Senior Constable Kentish punch the defendant in the face, and said, "Don't kick me", however I could still feel her legs continue to vigorously brush my legs and he punched her again to the face and that's when her legs, I could feel her legs immediately stop kicking out. Q. What happened then? A. I believe Senior Constable Kentish located a ring, like an earring in her pocket, then we left the dock area and I entered that earring up into her property. 60Cross-examination of the officer did not change the evidence he had given in chief in any way in terms of the events that occurred. 61Again, he seems to say that the earring was found during the search. It does not show that in the CCTV. The evidence is that the earring was given to Aiken afterwards. 62Again, his version does not include Kentish giving the explanation to the appellant as to the purpose of the search as given in evidence by Kentish. 63The next police witness was Tuckwell. His evidence in chief relevantly commences at T.45 as follows: - Q. The accused was then taken back to the police station? A. That's correct. Q. By you? A. Yes. Q. And taken into the police station? A. I'm sorry? Q. And taken into the police station? A. Yes, the truck, I believe would have been driven, was driven into the van dock and she was escorted into the charge room and placed in dock number 3 which is on the right-hand side of the charge room. Q. Did you have a conversation with her at that stage? A. I did. I obtained a field arrest form from the custody pigeonholes and approached the accused who was seated in the dock and spoke to her and obtained her name, date of birth and place of abode. Q. What happened then? A. After I'd obtained her particulars I passed them on to the custody manager which was Senior Constable Aiken and I departed from the charge room for a period of five or ten minutes. Q. What occurred then? A. I returned to the charge room and as I entered the charge room, I walked down the corridor to my left where the three docks are situated. Senior Constable Kentish and Senior Constable Aiken were engaged in a discussion with the accused about subjecting her to a search. Q. Do you recall the conversation? A. I recall words to the effect of "You're not searching me". I recall Senior Constable Kentish saying to the accused words to the effect of "If you don't submit to the search then you'll be searched forcibly". The accused said words to the effect of "Well you're not going to search me". The accused was then forced into the dock and submitted to the search by force. 64I interpose that this is different to the description given by Kirk who said the appellant threw herself back into the cell. Q. Do you recall - can you tell the court what you actually saw? A. Senior Constable Kentish pushed the accused back into the right-hand corner of the dock. Senior Constable Kentish and Senior Constable Aiken entered the dock with the accused and a struggle ensued, in the dock. The officers were attempting to turn out the pockets of the accused. Q. Just give evidence of what you know about, what you saw, what you smelt, not what you think? A. What I saw was the accused managed to struggle and get her leg up between the legs of Senior Constable Kentish who was standing in a position over the top of her, restraining her. At that point I called out to Senior Constable Kentish to watch his nuts because I believed the accused was about to kick him in the groin. Q. What did you actually say to him? A. I said "Watch your nuts, watch your nuts". The accused kicked up towards the groin of Senior Constable Kentish upon which Senior Constable Kentish struck the accused to the head two or three times. Q. What occurred then? A. After Senior Constable Kentish struck the accused a number of times she ceased in her actions of trying to kick him. I believe an earring was removed from her pocket and the search was ceased after that and she was secured in the dock. Q. Did you observe any injuries to the accused? A. No. 65Significantly at T.47 in response to the question whether he formed a view about her level of intoxication, he said: No, I didn't smell any alcohol on her or anything like that. 66That is quite interesting in that Tuckwell clearly had a quite extended conversation with the appellant as shown on the CCTV footage timed at about 3.28am. 67This is broadly consistent with what I assume is his note "mildly intoxicated" on the "Field Arrest Form" within Exhibit A. 68It is unarguably the case, however, that the appellant had had something to drink the evening before but his observations are consistent with a conclusion that at the time he spoke to her she was not particularly affected by alcohol. 69He also answered the question on that form:- Q. Does the person show any sign of mental illness or display any sign of self harm? A. No.
What then was the purpose of the later search? 70It is also significant that he said in his evidence that he believed an earring was removed from her pocket and the search was ceased. That is not what is shown on the CCTV footage but it is consistent with other renditions given by police. It is inconsistent with what is shown later on of the appellant handing Aiken an item which turned out, as I understand it, to be the earring, in that it was the only piece of property entered in the property register as having been taken from the appellant. It is also notable that Tuckwell says that he had obtained the appellant's particulars, such as her name and address, and gave those particulars to Aiken before the search took place. 71In other words, those particulars had been provided to Aiken about seventeen minutes before police entered her cell to purportedly effect the search for some purpose. It cannot have been because she was displaying any sign of self harm. What was the supposed danger she represented to police or what was she carrying which presented a danger to them? 72That was the police evidence. 73The appellant gave evidence. Her evidence on this topic commenced at T.53 as follows: Q. You went down to the police station? A. Yeah. Q. You were taken in to the dock area? A. Yeah. Q. Some time later Senior Constable Kentish spoke to you? A. Yeah. Q. Tell his Honour what was said and what happened at that point? A. Are you referring to just before I got searched? Q. Yes I am? A. Okay, he said to me that I was going to be searched, and I said, "Well you need a female officer". He said, "No. I'm going to search you". I said, "Look anyone here can search me but you, you've already assaulted me once tonight, it is not going to happen again", and that's when he said, "I'm sick of all your nonsense", and he pushed me into the cell where I cracked my head on the concrete wall and then Constable Aiken came in with him and Constable Aiken held me down by my shoulders and my back was flat on the seat thing, and he held me down with his right hand on my shoulder and his left hand, so he was leaning over me and Sergeant Kentish was pulling at my jean pockets, but pulling, yeah so my legs were out and I was kicking as they were pushing me down and holding me down, I was yelling and screaming, "Get off me, get off me", and so that's when I was kicking and like moving my body around. And then Constable - Senior Constable Kentish punched me in the left cheek twice, once and I kept moving around and then he punched me again, and he said, "Keep going and I'll do it again". And I just laid there and started crying, not knowing what was going on really in the sense that I told them that there was a tissue in my pocket and that - yeah that I had just been punched in the face twice. 74Her evidence in chief does not seem to be complete in that it seems to have been distracted by an argument about some photographs that the appellant said she took of herself but, nonetheless, a decision has to be made about her evidence on the basis of the evidence she did give, not evidence that she might have otherwise given. 75She was cross-examined on the topic and her evidence was as follows commencing at T.65:- Q. You agree that when you were being searched at the police station you specifically didn't want Senior Constable Kentish to search you? A. Correct. Q. You were happy for someone else to search you? A. Yeah. Q. And the reason you wanted someone else to - you were objecting to being searched by the police? A. Yes without a female officer, yeah. Q. You are aware that you could have quite easily just said "Here's the property, here's my earring, here's me pockets, there you go, there's my property"? A. I was led to believe they were still gong to search me and I didn't know what they meant by search, whether it was previously mentioned like a pat down or like strip searched, I didn't know. Q. So you could have quite easily consented to a search? A. If I had have known the degree of it, yeah I would have. Q. The police never said to you they were going to do anything other than search your pockets or ask you, did they? A. They didn't specify what they were searching. Q. Well they would ask you for your earrings? A. I didn't have earrings in, I had one earrings in my pocket. Q. So you are saying the police didn't ask you at any stage to provide whatever belongings you had on you to them? A. I told them what I had on me and that was tissues and one earring. Q. And then what, you refused to give it to them? A. No that's when they said they were going to search me. Q. And you didn't just say, "Oh here it is, I'll give it to you, you don't have to search me", you didn't say that? A. They didn't offer that to me. 76In cross examination the prosecutor briefly returned to the topic and at T.70 he asked: - Q. I take you to the matter in the police station. You agree that you weren't allowing the police to search you? A. Not - yeah I didn't want Constable Kentish to search me. Q. You didn't want any police officer to search you did you? A. I didn't say that, I didn't want him to search me. Q. Initially you said you didn't want any male police officer to search you? A. Yeah and then when they said that wasn't an option then I said, "Well anyone can search me but you", to Sergeant Kentish, the other Constable. 77What was the police purpose in wanting to search the appellant? Nothing in Part 9 of the Act relates to police capacity to oblige a person in custody to submit to a search. 78Sections 23 and 24 of the Act read as follows: 23 Power to carry out search on arrest (1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody, or (c) that is a thing with respect to which an offence has been committed, or (d) that is a thing that will provide evidence of the commission of an offence, or (e) that was used, or is intended to be used, in or in connection with the commission of an offence. (2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody. (3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2). (4) Nothing in this section limits section 24. 24 Power to carry out search of person in custody A police officer may search a person who is in lawful custody (whether at a police station or at any other place) and seize and detain anything found on that search. 79I should also replicate the relevant parts of other sections of the Act that bear upon this question and those are s.32 which reads:- 32. Preservation of privacy and dignity during search (1) A police officer or other person who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section. (2) The police officer or other person 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 or other person must ask for the person's co-operation. (4) The police officer or other person 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 or other person must conduct the least invasive kind of search practicable in the circumstances. (6) The police officer or other person 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 or person 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 or other person of the same sex as the person searched or by a person of the same sex under the direction of the police officer or other person concerned. (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. (9) A person must be allowed to dress as soon as a search is finished. ... (11) In this section: "questioning" of a person means questioning the person, or carrying out an investigation (in which the person participates). 80Sections 201 and s.230 of the Act read as follows: - 201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). ... (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, ... (g) a power to request a person to disclose his or her identity or the identity of another person, ... (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1) (a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. (5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested. ... 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. 237 Commissioner's instructions (1) The instructions to members of the NSW Police Force issued under section 8 (4) of the Police Act 1990 may include instructions and guidelines with respect to the exercise by police officers, and other members of the NSW Police Force, of functions conferred by or under this Act. (2) The Commissioner may not issue an instruction or guideline under the Police Act 1990 that is inconsistent with this Act and any instruction or guideline is, to the extent to which it is inconsistent with this Act, of no effect. 81Police instructions issued by the Commissioner pursuant to s.8(4) of the Police Act are ... with respect to the management and control of the New South Wales Police Force. 82Those instructions, however, do deal in some particularity with the obligations as far as the Commissioner is concerned with police in searching people who are lawfully in their custody. The Commissioner's Instructions which are relevant in this matter are described as the Code of Practice for Crime (Custody, Rights, Investigation, Managements and Evidence) and were last updated on 8 August 2010. 83That Code includes the following:- " Searching Custody manager You may search or authorise the search of detained people. The search carried out should be the least invasive kind of search practicable in the circumstances. NB: When you search you must comply with the safeguards in section 201 of LEPRA. LEPRA defines three types of personal searches: Frisk search (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 that thing. Ordinary 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 only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat, and (b) an examination of those items. Any personal search must be carried out in a manner that preserves the privacy and dignity of the person being searched, as far as is reasonably practicable. Section 32 of LEPRA sets out the general requirements for conducting personal searches - see Annexure A. ... Have the search carried out by an officer of the same sex, or someone else of the same sex acting under the lawful direction of a police officer and where possible in the presence of a senior officer (custody manager, duty officer, supervisor) not connected with the investigation. Only in exceptional cases will a search be carried out by someone of the opposite sex. Detained people may retain clothing and personal effects at their own risk unless you consider the items might be used to cause harm, interfere with evidence, damage property, effect an escape or they are needed for evidence. If these items are removed tell the person why. If it is necessary to remove someone's clothes, arrange replacement clothing of a reasonable standard (usually arranged through family or friends). Do not allow an interview unless adequate replacement clothing has been offered. When you take property from a plaintiff Documentatio n Record all property (except clothing being worn) brought to the police station with a detained person, including those articles allowed to be kept. Ask the person to check and sign the record. Where clothing or personal effects are taken from the person record the reason. You do not have to record the reason if the items taken are ties, belts, laces, socks or other items capable of being used as a ligature, cash, or valuables. If a search is conducted by someone of the opposite sex record this fact along with the reason/s. Where a strip search is conducted record the reason/s. Notes for guidance Detained people should be searched where the custody manager will have continuing duties with them or where their behaviour or the offence makes it appropriate. Where you remove money from the person count it in front of both the person and arresting/escorting police. Where, for example, it is clear someone will be kept in custody only for a brief period and will not be placed in a cell, the custody manager may decide not to search them. Endorse the custody record 'not searched'. Ask the person to sign the entry. Searching officer Remember to comply with the safeguards in section 201 of LEPRA. Violent people If a detained person is violent and objects to being searched, you may use reasonable force. Do not, however, use restraints which constrict air supply or arteries/veins, such as 'choke holds', neck restraints or pressure point holds applied above the neck. Use restraint in the most humane way possible." 84It should be noted that nowhere in either the relevant legislation or in the relevant Commissioner's Instructions is there a requirement that a person in police custody must be searched. It allows for a person to retain clothing and personal effects. 85For completeness, I include the sections which relate to searching intoxicated persons. 206 Detention of intoxicated persons (1) A police officer may detain an intoxicated person found in a public place who is: (a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or (b) in need of physical protection because the person is intoxicated. (2) A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law. (3) An intoxicated person detained by a police officer under this Part is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person. (4) An intoxicated person detained by a police officer under this Part may be taken to and detained in an authorised place of detention if: (a) it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or (b) a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or (c) the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person. (5) An intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage. (6) This section does not authorise a responsible person into whose care an intoxicated person is released to detain the intoxicated person. 208 Searching detained persons (1) A police officer or other detention officer by whom an intoxicated person is detained under this Part may search the intoxicated person and may take possession of any personal belongings found in the person's possession. (2) A person is entitled to the return of the personal belongings taken from the person under subsection (1) when the person ceases to be detained under this Part. 86An intoxicated person is one who is "severely affected" by alcohol or other drugs. None of the evidence suggests the appellant met that definition at any stage during her contact with police and it was never alleged she was either detained or searched pursuant to these provisions. 87The common law capacity of police to search was expressed by Mr Justice Williams in Leigh v Cole (1953) 6 Cox's CC 329 at 332 as follows: - With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that any general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case. 88That principle was picked up and applied by Lord Justice Donaldson in Lindley v Rutter (1981) 72 Crim LR 1 at 4. Notably in that case the police officers were purporting to rely upon Chief Constable Standing Orders to justify forcibly removing the appellant's brassiere. Here, there is some suggestion that the police relied upon the Commissioner's Instructions issued pursuant to s.8(4) of the Police Act 1990. I have recited elsewhere s.237 of the Act which alludes to those instructions and also set out the relevant instructions. (see also Botton v Winn Supreme Court of Victoria, Phillips J, unreported 18 December 1987 and R v Naylor [1979] Crim LR 532R). 89Section 24 in its present form had long been in the NSW Crimes Act more or less in the same form. (See s.353A, which was in that Act at least since 1924 before its repeal when it was effectively incorporated into the Act). 90Section 352 of the Crimes Act, as it was, was said to simply be a manifestation of the common law capacity of any citizen to arrest and it cast an obligation upon a Constable to take the arrested person before a justice to be dealt with according to law. It also provided that he or she should also take any property found upon him before the Justice. 91That was said to imply a power of search on arrest. 92In Clarke v Bailey [1933] 33 SR NSW 303 the Court noted at 310 that: - In order that the defendant (the police) should be able to justify his right of search, he would have to establish that it was reasonably necessary ... 93That case was somewhat different to this but, nevertheless, it amplifies a common law proposition in interpreting the predecessor to s.24 of the Act that it was circumscribed by an obligation that before such a search could be undertaken there had to be reasonable cause to effect it. 94It seems to me that even though the rights of the police are tempered to some extent by sections 201 and 230 of the Act and by the Commissioner's Instruction there remains a requirement that police have to have at least a reasonable suspicion before they are entitled to exercise that power. It is not and cannot be unfettered. 95In Brazil v The Chief Constable of Surrey [1983] 3 ALLER 537 a young woman was arrested in a pub, the reasons for which are immaterial. She was taken to a police station; she was abusive to police at the station; she gave a false name and she was asked to empty her handbag and pockets, which she did. She was told by a police officer that everybody who was brought into a police station had to be searched for their own safety. 96(I note that in each of the ss. 23 and 24 of the Act the words used are: - " ... may search ...".) 97The police apparently acted upon that assumption and forcibly searched the appellant. The appellant resisted and was charged with various offences. Lord Justice Goff picked up Lindley v Rutter (supra), particularly between pages 5 and 6, namely:- It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such, for example, as malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevent. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measure without regard to all the circumstances of the particular case. 98His Lordship noted that, at common law at least, police cannot proceed to carry out a personal search simply on the basis that: - Everyone brought into the police station has to be searched for their own safety. Such a blanket rule cannot be upheld in face of the decision of this Court and Lindley v Rutter . Here the difficulty on the findings of fact is that there is no finding that the police officer concerned addressed her mind to the question of whether in the circumstances of this particular case a personal search of the appellant was called for. (540 at J) 99Can such a common law restriction be placed upon the statutory capacity of police to search vested pursuant to s.24 of the Act? 100Clearly there are some boundaries upon the capacity of police to search pursuant to s.24 of the Act. 101In Woodley v Boyd [2001] NSWCCA 35 Heydon JA, as his Honour then was, was considering an appeal by a plaintiff who had failed at first instance in a suit against police for unlawful arrest, assault and malicious prosecution. 102Part of that case involved a complaint by the appellant that after his arrest by police, which he said was unlawful, they searched his car over his protest and he said that that search was unlawful. His Honour cited a long passage in his judgment from the trial judge's reasons, particularly that which was described within paragraph 11 of Heydon JA's judgment as follows:- At 2.16(e) The power of arrest came, if at all, from s.352 of the Crimes Act and from the common law. An arrest will be wrongful if not authorised by law. Section 352(2) of the Crimes Act does not authorise arrests if they are not made in good faith for the purposes contemplated by the relevant enactment relied upon. A police officer does not act in pursuance of a statute or carry a statute into effect if there is an absence of a bona fide intention of discharging his duty under the statute or if his acts are done only in pretended execution of the statute. 103At paragraph 12 of Heydon JA's reasons, his Honour said:- The heart of the plaintiff's submission is paragraph 2.16(e). It states the effect of the authorities correctly. 104Analogously here, that principle must apply. What is in essence said by the appellant in this case is that the reasons that are offered for the search of her at the police station were not real reasons but in fact pretended reasons. There was no lawful basis upon which they could search her in the circumstances. 105It is noteworthy that Heydon JA picked up what was said by Donaldson LJ in Lindley v Rutter in paragraph 37, particularly what was said by His Lordship at pages 5-6, 106A further consideration here is that even if the police were justified in searching the appellant they were only entitled to use a degree of force which they actually believed was necessary. (See Turner 1962 VR 30 at 36 applied in Woodley at paragraph 74 and s.230 of the Act).
How does that apply to this case? 107Whilst there are some suggestions in the evidence of the police officers, notably by Kentish, that the search was undertaken for the purposes of s.23 of the Act. That is unsupported by the other officers who gave evidence. The police do not seem to have turned their minds to the question of whether a search should be undertaken at all. 108I find that once the appellant refused to consent the police asserted they were obliged to search her using such force as was necessary. That is clear from the evidence of Kentish when he said: I think she gave her name to another constable at that stage after probably five, 10 minutes, and she had items on her that - under our rules and regulations we must remove property from people, not to harm us and not to harm themselves when we place them in custody. I spent about two minutes explaining to her about this. She still refused to comply, and she said that you can't do that because there's no female here, and I said, "Well, we've still got to protect ourselves and herself," and still refused to take the thing with items off herself. We could see a bulge in her back pocket. We could see a few other things she had on her, I'm not sure, I can't remember what they are, but we still said we had to search her and with that she went back into the dock 109It was clearly at least inappropriate for Kentish to be the or a searching officer. 110The Commissioner's Instructions required the Custody Manager to either conduct the search or to delegate the task to another officer. 111Here the evidence is that the position of the appellant developed from a request that she be searched by a female officer (which request I find was entirely appropriate). 112According to the appellant, once she learnt that no female police officer was on duty, she was prepared to consent to being searched by any other officer than Kentish. 113If her version of events is accepted she had good reasons to not want to be searched by him because of what had happened earlier in the morning at 7 Conningdale Crescent. I am of the opinion that that version, if accepted, survives my earlier finding dismissing the appeal against conviction for the other two offences which were committed at 7 Conningdale Crescent where Kentish was the victim. 114Her statement that in any event she did not want Kentish to search her finds some support in the police evidence, particularly from Kirk at T.34 and T.35. 115There were a number of unsatisfactory aspects to the police evidence, particularly a common thread that the earring in a tissue was found by police during the search, when clearly it was not. 116On the basis of the CCTV footage and the appellant's evidence (which I accept, in preference to the police version) I find that the earring in the tissue was handed to Aiken after the search and he entered it into the property record. 117This is an important finding. 118The principal justification for the search advanced by Kentish is that there was something in the appellant's pocket which, he says, turned out to be the earring in the tissue which, he says, he located during the search. 119This did not happen. 120I am of the opinion that this evidence represents a purported ex post facto justification for the search which Kentish says he was obliged to perform because of an erroneous assertion of the effect of the Commissioner's Instructions and/or the provisions of the Act. 121This resonates with both the facts in Lindley v Rutter (supra) and Brazil v The Chief Constable (supra) and their outcomes. 122There are further matters for concern relating to the police evidence. 123I find that police returned to the dock area and before the search determined to forcibly search the appellant. Aiken already had gloves on and Kentish put gloves on before he approached the cell where the appellant was housed and spoke to her. 124Up until the point of the search there was no evidence at all that the appellant intended to harm herself or police with anything she had on her. 125There is ample evidence to conclude, and I do conclude, that in any event the appellant was prepared to consent to being searched, but not by Kentish. 126This fact supports the proposition that there was no evidence to suggest that the appellant had in her possession anything which could be used to injure police or herself. 127I find that the physical contact between the appellant and police at the station was initiated by police, particularly Kentish. He forced her back into the dock. She did not fall back of her own accord and I thus reject the version given by Kirk. 128There is no doubt the appellant resisted the police. 129The appellant said that Kentish said that he had "had enough of her" and the impression I gained from looking at the degree of force used by police, particularly Kentish, including punching the appellant three times in the face, supports such a conclusion. 130In this context it is worthwhile considering why she was being held in the station at all. True she had been arrested, and lawfully so. 131She was not being detained as an intoxicated person nor could she have been as I have noted elsewhere in these reasons and yet she was kept at the police station between about 3.20am and 7.36am, over four hours. 132She was not charged until 6.44am, almost three and half hours after she arrived at Armidale Police Station. She was then simply issued with a Court Attendance Notice. 133The Custody Management Record which seems incomplete, is Exhibit A as the "Detainee Inspection/ Assessment Record" only runs from 4.26am to 7.36am. 134Within it there are two entries which relate to her being given a Part 9 caution and summary. The first is at 4.39am, which includes:- Reasons for New Caution/Summary: Time Out due to intoxication". and the second at 5.52am: Reasons for New Caution/Summary: Deemed sober enough for Part 9. 135In each case the responsible officer is "Senior Constable Heath Aiken". 136The first entry is about four and half to five hours after the appellant had her last drink and the second about six hours later. 137Those entries are also about one hour and about two and half hours respectively after Tuckwell completed the Field Arrest Form at 3.28am in which he noted the appellant was "mildly intoxicated", which form he said he gave to Aiken (T.45:38-46). 138Even though much of this material relates to a period after the alleged assault, it is to my mind of great significance. I am of the opinion that it is consistent with the clear and unexplained differences between the police version of what was done and seized during the search, and why it was done, and the objective evidence such as the CCTV footage, the forms completed at the time and the appellant's evidence. 139There is an abiding impression in my mind that the police were determined to punish the appellant for her behaviour earlier in the night at Conningdale Crescent. 140I accept the evidence of the appellant when she said that immediately prior to the search Kentish said:- I'm sick of all your nonsense. 141I have also borne in mind the evidence of the ambulance officer, Anthony Duff-Forbes, whose statement is part of Exhibit A. 142He saw the appellant at 4.48am. He was told by her that she: ... had been hit but not knocked out. 143She told him she had been drinking alcohol. He noted her vital signs were normal. He made no comment as to her state of sobriety. 144He was told by her that she had a sore right cheek and a small swelling to the back of the head. He provided an ice pack and gave police a Patient Advice Card. 145He returned at 5.12am as the appellant had been vomiting, which she said was due "to alcohol". Again, her vital signs were good. 146In all the circumstances I find that:- a. The search of the appellant at the police station by police was unlawful; at least the Crown has not demonstrated beyond reasonable doubt that it was and thus has not proved beyond reasonable doubt that at the time of the alleged assault of Kentish was acting in the execution of his duty, a vital element of the charge. b. In any event, I find that in the circumstances the degree of force employed by police searching the appellant was substantially beyond that which was reasonably necessary to exercise the function. They were exercising, namely searching the appellant pursuant to the provisions of s.23(1)(a) of the Act, in that at the time of the search there was no reasonable basis for police to suspect that anything she was carrying then represented a danger to police or to the appellant. Thus the search was unlawful as Kentish was not acting in the execution of his duty and the Crown has not satisfied me beyond reasonable doubt of that element of the offence. c. Furthermore, in any event, I find that the appellant in fact consented to being searched by any officer of police other than Kentish. I find that this consent and its condition was known to police, including Kentish. d. That in participating as he did in the search Kentish was in breach of the Commissioner's Instructions in that it was not carried out:- ...in a manner that preserves the privacy and dignity ... of the appellant as far as was reasonable practicable. e. That it was comfortably practicable at the time that the search was undertaken for it to have been done by any other police officer or officers then present at the Armidale Police Station. f. That Kentish's insistence on searching the appellant was also a breach, in the circumstances, of s.32 of the Act. I thus find the search unlawful on these bases with the same consequences. 147I further find that the search was unlawful in that police failed to comply with s.201(1)(c) of the Act in that the reason given by police was either:- a. not a lawful reason to search the appellant, or b. not the reason why Kentish searched the appellant. 148As I say, I find that the search of the appellant was unlawful and thus Kentish was not acting in the execution of his duty and thus the Crown failed to prove that element of the offence beyond reasonable doubt. 149I thus uphold the appeal; I quash the conviction and penalty and dismiss the charge. 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: 13 September 2011
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Janel Anne Boekeman