Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

Case study 9
Persons searched within view of coach passengers 251
A passenger coach heading to Melbourne was stopped at a check point on the Hume Highway at around
1am. The drug detection dog entered the luggage hold and made indications on three pieces of luggage,
which were unloaded and placed on the footpath next to the bus.
The coach driver assisted police in identifying the owners of the luggage and requested they disembark
from the coach. Police then searched the luggage in the presence of the owners on the footpath next to the
coach. The footpath provided good lighting for police although it did not appear to provide much protection
for the belongings (mostly clothes), which were placed on the ground in contact with grass and soil.
At one point, police conducted a person search of an Israeli male in his early twenties. The male removed his
jacket and the contents of his pockets. In addition, police conducted a frisk search. All of this was within view
of approximately 12 other passengers who watched the search from inside the bus. No drugs were located
as a result of any of the searches conducted by police. 252
Ombudsman observers noted that police generally attempted to provide a higher degree of privacy when
conducting strip searches. For example, Ombudsman observers noted that police sometimes conducted strip
searches in mini buses used for random breath testing. On one occasion, police accompanied a man in his early
twenties to the toilet of a nearby service station to conduct a strip search given the lack of privacy at the location
where the man’s car was stopped.
One senior officer we interviewed noted the competing priorities for police when conducting person searches in
public places:
I think we have to balance officer safety and the integrity of evidence gathering versus [ensuring] someone’s
privacy as we do in any contact with members of the public when we conduct searches at licensed premises,
on the street, or on the highway. 253
There are clearly a number of challenges for police conducting operations in public places as the following case
study demonstrates.
Case study 10
Person charged for hindering police conducting a search in a public place 254
A heavy vehicle driver was being searched by police at a check point located at a truck parking bay on a
major highway. A 59-year-old man came within two metres of the search when police asked him to move
away as he was hindering a police operation by invading the privacy of the driver being searched. The man
responded to the request to move away by saying “You can get fucked. This is a free country and I’ll stand
where I want.”
Police again asked the man to leave the area. The man relocated to the footpath some several metres
away. As he was still within viewing and hearing distance of the search, police approached the man again
and issued him with a move-on direction to leave the area as he was hindering a police investigation. The
man replied: “I’m doing nothing wrong.” A police officer informed the man that he was “hindering a police
investigation and the person being searched had a right to privacy.” The man retorted: “Privacy my arse, you
blokes have him stopped and you have a video camera on him.”
Police issued the man a further two move-on directions which the man failed to comply with. Police requested
the man produce identification, which he failed to do. Police decided to search the man to obtain identification
at which point the man began to struggle. 255 Police arrested the man, handcuffed him, and escorted him to a
nearby police station to establish his identity and charge him with hinder police officer in the execution of duty
and fail/refuse to comply with request by a police officer.
The charges were later withdrawn at court due to due to an incorrect charge being laid and insufficient
evidence in the brief. 256
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003