LAWS1014 Civil and Criminal Procedure

Transcription

1 LAWS1014 Civil and Criminal Procedure 1

2 CONTENTS PART 1: CRIMINAL INTRODUCTION: CRIMINAL LAW AND PROCEDURE IN CONTEXT OVERVIEW HARM AND MORALITY SOCIAL REACTION CASE STUDY: CRIMINALISING DRUGS POLICE POWERS & DISCRETIONS; BAIL POLICE POWERS AND DISCRETION Relationship between the police and the law Sources of police power (some) Police powers of entry (LEPRA, Part 2) Search and seizure powers without warrant (LEPRA) Powers relating to warrants (LEPRA) Entry and seizure powers relating to domestic violence (LEPRA) Importance of police powers Discretion in the criminal justice process An illustration of discretion: arrest/summons powers Neither arrest nor summons: assisting police with their inquiries! voluntary attendance and the realm of consent Detention and questioning powers The non-justiciability of selective law enforcement Process as punishment in summary offences BAIL Bail procedure Categories in Bail Act Criteria for bail Bail conditions Growing list of exceptions to the presumption in favour of bail R v Medich [2010] NSWSC Bail reform PROSECUTION, PRE-TRIAL PROCESS AND PUBLIC ORDER OFFENCES THE DECISION TO PROSECUTE AND THE PRE-TRIAL PROCESS Overview Who are the prosecutors? Decision to Prosecute Plea bargaining Conduct of prosecution Disclosure PUBLIC ORDER OFFENCES Background Offensive Conduct and Language Substantive law issues COURT HIERARCHIES JURISDICTION SUMMARY AND INDICTABLE OFFENCES AND TRIAL COURT HIERARCHY Indictable offences Summary offences Court Hierarchy which courts hear which offences? CHARACTER OF JUSTICE Tiers of Justice COMMITTAL HEARINGS LOCAL COURT Principles Committal not conclusive APPEAL JURISDICTION Appeals from Local to District

3 Local to Supreme District/Supreme to Criminal Court of Appeal (CCA) Appeals to the High Court Crown appeals SENTENCING & PUNISHMENT JUSTIFICATIONS FOR PUNISHMENT Retribution Deterrence Rehabilitation Incapacitation Denunciation Restoration Crimes (Sentencing Procedure) Act 1999 s 3A Purposes of sentencing CONFINING JUDICIAL DISCRETION Discretion Confining judicial discretion overview Provision of statistical information Legislative constraints Sentencing councils/commissions Guideline judgments SENTENCING METHODOLOGIES AND PRINCIPLES Methodology: intuitive synthesis or two-tier Sentencing principles Appellate review SENTENCING OPTIONS THE LIMITS OF PUNISHMENT The Costs of Imprisonment The New Punitiveness PART 2: CIVIL PROCESS, OPEN JUSTICE AND FAIRNESS; ADVERSARIAL SYSTEM OF JUSTICE; ALTERNATIVE DISPUTE RESOLUTION PROCEDURAL LAW ADVERSARIAL SYSTEM OF LITIGATION PRINCIPLE OF OPEN JUSTICE FAIR TRIAL NSW COURT SYSTEMS CASE MANAGEMENT COSTS OF LITIGATION ETHICS AND LEGISLATION MATTERS PRECEDING LITIGATION AND COMMENCING PROCEEDINGS MATTERS PRECEDING LITIGATION Jurisdiction Preliminary Discovery Limitation Periods Interim Preservation Orders ORIGINATING PROCESS SUMMONS OR STATEMENT OF CLAIM Contents of SoC/Summons relief claimed Statement of Claim Summons SERVICE Outline Proving service Timing of service Personal service Service constituting personal service Substituted service Service in accordance with agreement between parties (r 10.6)

4 Acceptance of service by solicitor (r 10.13) APPEARANCE PLEADINGS AND PARTICULARS SYSTEM OF PLEADINGS PARTICULARS REASONABLE PROSPECTS OF SUCCESS DEFECTIVE PLEADINGS AMENDMENT OF PLEADINGS GATHERING EVIDENCE IN CIVIL CASES DISCOVERY (BETWEEN PARTIES) SUBPOENA (ON THIRD PARTIES) NOTICE TO PRODUCE (ON THIRD PARTIES) NOTICE TO ADMIT (ON PARTIES) INTERROGATORIES (QUESTIONS BETWEEN PARTIES) PRIVILEGE INTRODUCTION TO PRIVILEGE Overview When does a question of privilege arise? CLIENT LEGAL PRIVILEGE Evidence Act Questions to ask and dominant test Scope of privilege PUBLIC INTEREST IMMUNITY Background Balancing test Evidence Act 1995 ss Examples where PII is raised NEGOTIATION PRIVILEGE TRIAL OR NO TRIAL ADJOURNMENTS DEFAULT JUDGMENT SUMMARY JUDGMENT SUMMARY DISMISSAL DISMISSAL FOR WANT OF PROSECUTION ADDITIONAL GROUNDS FOR DISMISSAL DISCONTINUANCE SECURITY FOR COSTS STAY OF PROCEEDINGS INCENTIVES TO SETTLE BRIEF SUMMARY OF THE CONDUCT OF A CIVIL HEARING APPEALS

5 PART 1: CRIMINAL 5 1 INTRODUCTION: CRIMINAL LAW AND PROCEDURE IN CONTEXT 1.1 Overview Why is criminal procedure important? Procedure impacts on substantive rights and justice o E.g. death of Mr Ward (Aboriginal man in WA), transported in an inappropriate transport van shows how the quality of vehicles used in prison transportation, how much water they should be given impact on the process that resulted in his death before coming to court Procedural issues themselves give rise to substantive laws o Crime exists only in so far as it is in practice o Definition of crime is moulded by social situation, if the police decide to intervene, what charge the police choose to inflict o E.g. traffic, on the spot, fines! person who is guilty of the offence should be punished by the offence. The person who does the crime doesn t necessarily do the time! not as much individual responsibility. Here, the procedure gives rise to substantive laws. Procedure raises key constitutional and human rights issues o E.g. constitutionally implied right that citizens could only be found guilty for a criminal act they had already executed " Fardon case: HC considered whether citizens could be detained by the executive for acts they might do in the future (he was a sexual offender) These QLD laws were permitted thus, a procedural matter brought up important human rights issues Difference between criminal and civil law? Public vs. private sphere a way to distinguish between criminal and civil law? o Difference b/w what might be criminal and non-criminal might not be clearly private/public distinction o It is not a definition of crime, but it does turn our attention to what is public is a normative issue! it s not that a particular activity is a crime, but context is important in determining its criminal character o Difference b/w public and private = difference b/w harming the individual and harming the community (Blackstone) o But murder is against a person? It s criminal because it is going against the peace and order of society o Crimes, according to Blackstone, are crimes that are a public wrong, harming the community in its social aggregate capacity " Crimes are those activities that are a breach and violation of the public rights and duties, due to the whole community o Crime more likely for personal violence as opposed to economical wrongs (e.g. contract law) Distinction in procedural practice: o Who initiates and engages in investigation and addressing the wrong " Procedurally, it is the discretion of the police (prosecution), not the victim to proceed (this is different to civil law) " In criminal cases, the victim is not a party! it is the Crown R o The outcomes of legal process

6 " Criminal is more about who is the wrong doing not who should pay for the harm done " Civil fines for damages (fine paid directly to the other party, to compensate) " Criminal fines and prison time (fine paid to the state and victim is not given funds directly from the wrongdoer) Privacy as a constraint on criminal law? E.g. Toohen! rights to privacy (being gay) constrains the Tasmanian criminal laws from being valid according to ICCPR This same constraint prevented domestic violence from being a criminal act for a long period of time Harm and Morality Criminal law preventing harm Many writers think that the characteristic of shared by all forms of criminal action is that they are harmful Important corollary of this view is that only harmful acts should be criminal Thus, harm has immediate plausibility as a justification for criminalising a given form of behaviour But what does it mean to cause harm? Should all forms of harmful behaviour be criminalised? John Stuart Mills criminal law s purpose should be to prevent harm to others o Criminal law s only purpose [is] to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant over himself, over his own body and mind, the individual is sovereign Traditionally criminal law focuses on physical harm Extension of harm concept o Psychological harm o Emotional harm o Educational/information deprivation o Climate change o Cultural damage Danger of this extension ceases to be a constraint on criminal law, would end up being whatever people think is harmful Criminal law instructing morality Should the criminal law prohibit certain forms of conduct simply because they are immoral? Main arguments o Immorality or sinfulness of the conduct supplies a sufficient reason for criminalization " While it is a possible rationale for determining what criminal law should be, history of criminal law has not shown a simple equation between crime and sin " E.g. fornication and adultery, both sins in the Judeo-Christian religions, but neither is a crime in NSW " Although immorality may be a major element in many existing crimes, it does not by itself explain criminalization o Certain forms of immoral conduct undermine the shared beliefs essential to social cohesion! led by Patrick Devlin " This could be seen as an indirect form of the argument based on harm the harm is to the social order rather than any individual " In this case only those forms of immoral conduct which threaten social cohesion should be criminal " Toleration of max individual freedom consistent with the integrity of society Patrick Devlin, 1965

7 o Famous debate b/w Devlin and HLA Hart 7 Criminal law offensiveness Debates on offensiveness as a ground for criminal prohibition often proceed in close association with debates about immorality Important differences: o Offensive behaviour in law involves an element of publicness; acts that positive morality allows in private might be regarded as offensive if done in public (e.g. sex between married couples) o It is possible for society to view behaviour as legally permissible though immoral when carried out in private, but legally impermissible (because offensive) when carried out in public (e.g. homosexual intercourse between consenting adults) " In both of these cases, publicness rather than immorality is at the heart of the concern " In this, they are more readily associated with harm since the interests of third parties may be adversely affected o Might be possible to regard behaviour as morally neutral but still offensive say on aesthetic grounds and therefore to be prohibited " E.g. public drunkenness, urinating in public! offensive but not necessarily immoral The criterion of offensiveness forms the basis of a range of existing criminal prohibitions in what are referred to as public order offences 1.3 Social Reaction French sociologist Emile Durkheim thought that the key universal feature of crime was the reaction of the social audience Thus, focused on the reaction instead of the qualities of the act itself or the characteristics of the actor Thought that crime was a normal and healthy part of any society o Crime can render a service to humanity. A society that has no crime would be pathologically over-controlled o Crime works to bind community! they come together against the transgressor o Some individuals (MLK, Nelson Mandela) labeled as criminals by state sanctioned processes of the times Moral panic Stanley Cohen A condition, episode, person or group of persons emerges to become defined as a threat to societal interests Saw moral panic as a cycle: deviant act! crime! operation of news values (selective practices of news-making)! crime as news (selective portrayal)! deviancy amplification (targeting of news, public concern) Moral panics o Concern over a behaviour and its societal consequences o Hostility towards people supposedly engaging in it o Consensus that the threat is real, serious and caused by wrongdoers o Disproportionately in the perception of threat o Volatility in flaring (and subsidence) of concern o Moral dimension to social reaction o Idea that deviant conduct is symptomatic E.g. Cronulla Riots 2005 Critique of moral panic theory o MPT itself may be guilty of overgeneralization, over-simplification, over-focus on non-state factors, politicisation

8 8 o However, MPT is at least useful to maintain a critical perspective of the function of criminal justice processes as reducing or furthering criminal activity, and a critical perspective towards truths in criminal justice reporting and statistics 1.4 Case study: Criminalising Drugs Challenges the public / private distinction Debate: harms of drug use vs. harm of prohibition Why criminalise? (Arguably) Drug use is private rather than public Drug use does not harm others victimless crime (though paternalism may be justified in cases of youth drug-use) The most harmful drugs are legal The criminalization increases rather than reduces harm The war on drugs is irrational Harm of prohibition Health costs of illicit drugs also partly attributable to illegality Also high social cost for law enforcement! difficulty of effective enforcement o No victim less evidence o Requires more invasive investigation o Greater personal cost on both sides o Alienates certain groups o Brings law into disrepute o Financial cost how else could resources be directed? Other crime, other public priorities " Illicit drugs involved a social cost of $8.28 billion in in Australia; large proportion of which was law enforcement and other crime costs The economics of illicit drugs crime tariff o Competition reduced, price increases o Demand by users is relatively inelastic o Source of funds for organised crime o Profit increases for suppliers willing to take risk o Making criminals of users both in use and to fund habit o Increases crime more generally Police corruption o Planting of drugs o Recreational use by police o Theft and extortion o Bribery o Drug trafficking o See Royal Commission into NSW Police Service (1997) Harm minimization tactics NSW Drug Summit 1999 o Needle exchange program o Safe injecting room o Methadone treatment proven to reduce drug-associated crime Half measures? o Methadone treatment why not heroin? o Only one safe injecting room o 15 million needles distributed by mid-90s but out of concern for AIDS epidemic

9 o Very limited consideration of legalization " Instead, discretionary cautioning schemes " E.g. Young Offenders Act 1997 (NSW) 9 Therapeutic jurisprudence Drug Court Act 1998 s 3(1) o Enables eligible persons (likely to be sentenced, pleading guilty) to reduce drug dependency by suspending the sentence Magistrates Early Referral into Treatment Program (MERIT) o Intervention program as bail condition (Bail Act 1978 s36a) o Eligibility criteria: accused is eligible and suitable to be released on bail, have a demonstrable and treatable drug problem, and is charged with drug-related offences (but not indictable offences and not sexual assault or serious violence) o Successful completion a mitigating factor in event of conviction Legalisation? With appropriate controls, e.g. o Model of alcohol or prescribed drugs o Prescriptions, limited outlets, limited quantities Compliance with harm principle

10 2 POLICE POWERS & DISCRETIONS; BAIL 2.1 Police Powers and Discretion Relationship between the police and the law 1. To enforce the law? Not really 2. To maintain order? Yes 3. The law is more a resource for police decisions, rather than guidance Patrolmen do not really enforce the law, even when they do invoke it, but merely use it as a resource to solve certain pressing problems in keeping the peace Bittner Sources of police power (some) Legislation: Law Enforcement (Powers & Responsibilities) Act 2002 NSW (hereafter LEPRA) o Codifies some aspects of the common law o There were too many overlapping pieces of legislation Common law Policy guidance: NSW Police Force Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) AND Ethics Code o No legislative effect o Unlike if there is non-compliance with LEPRA, doesn t bring inadmissibility of evidence into play Recognition of authority by community Police perception that they are acting with authority LEPRA s 201 Supplying police officer s details and giving warnings (cf Crimes Act 1900, s 563, Police Powers (Vehicles) Act 1998, s 6) (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 Police powers of entry (LEPRA, Part 2) 9 Power to enter in emergencies (1) A police officer may enter premises if the police officer believes on reasonable grounds that: (a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances. 10 Power to enter to arrest or detain someone or execute warrant (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. (3) A police officer who enters premises under this section may search the premises for the person.

11 (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose. (5) In this section: arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment. Part 3 Powers to require identity to be disclosed Division 1 General powers to require identity to be disclosed 11 Identity may be required to be disclosed (cf Crimes Act 1900, s 563) (1) A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred. (2) A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place. Note. Section 201 sets out safeguards relating to requests made under this section. 12 Failure of person to disclose identity on request (cf Crimes Act 1900, s 563) A person who is requested by a police officer in accordance with sections 11 and 201 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request. Maximum penalty: 2 penalty units. 13 False or misleading information about identity (cf Crimes Act 1900, s 563) A person must not, without reasonable excuse, in response to a request made by a police officer in accordance with this Division: (a) give a name that is false in a material particular, or (b) give an address other than the person s full and correct address. Maximum penalty: 2 penalty units Search and seizure powers without warrant (LEPRA) 20 Relevant offences The following offences are relevant offences for the purposes of this Division: (a) indictable offences, (b) an offence against section 93FB of the Crimes Act 1900, (c) an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts. 21 Power to search persons and seize and detain things without warrant (cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37)

12 (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained, (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, (c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence, (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug. (2) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985, found as a result of a search under this section. 21A Ancillary power to search persons (1) In conducting a search of a person under section 21, a police officer may, if the police officer suspects on reasonable grounds that a thing referred to in section 21 (1) (a), (b), (c) or (d) is concealed in the person s mouth or hair, request the person: (a) to open his or her mouth, or (b) to shake, or otherwise move, his or her hair. (2) Subsection (1) does not authorise a police officer to forcibly open a person s mouth. (3) A person must not, without reasonable excuse, fail or refuse to comply with a request made by a police officer in accordance with this section and section 201. Maximum penalty: 5 penalty units. 22 Power to seize and detain dangerous articles on premises (cf Crimes Act 1900, s 357) A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence. Note. Premises include vessels, vehicles, aircraft and other places. Division 2 Searches of persons on arrest or while in custody 23 Power to carry out search on arrest (cf Cth Act, s 3ZE, common law) (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). 12

13 (4) Nothing in this section limits section A Ancillary power to search persons (1) In conducting a search of a person under section 23, a police officer may, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 23 (1) or (2) is concealed in the person s mouth or hair, request the person: (a) to open his or her mouth, or (b) to shake, or otherwise move, his or her hair. (2) Subsection (1) does not authorise a police officer to forcibly open a person s mouth. (3) A person must not, without reasonable excuse, fail or refuse to comply with a request made by a police officer in accordance with this section and section 201. Maximum penalty: 5 penalty units. 24 Power to carry out search of person in custody (cf Cth Act, s 3ZH, common law) 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. Division 3 Additional personal search and seizure powers in public places and schools 25 Definitions In this Division: knife includes: (a) a knife blade, and (b) a razor blade, and (c) any other blade, but does not include anything that is of a class or description declared by the regulations to be excluded from this definition. locker includes any facility for the storage of a student s personal effects at a school. 26 Power to search for knives and other dangerous implements (cf Summary Offences Act 1988, s 28A) (1) A police officer may request a person who is in a public place or a school to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a dangerous implement (other than a laser pointer) in his or her custody. (1A) A police officer may request a person who is in a public place to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a laser pointer in his or her custody. (2) If the person is in a school and is a student at the school, the police officer may also request the person to do either or both of the following: (a) to submit to a search of any bag or other personal effect that is on or with the person, (b) to submit to a search of the person s locker at the school and an examination of any bag or other personal effect that is inside the locker. (3) For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement (other than a laser pointer) in his or her custody. (4) In conducting a search of a person under this section, a police officer must, in the case of a search of a student in a school and if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search. (5) In conducting a search of a person under this section, a police officer may request the person to produce either or both of the following: (a) anything that the police officer has detected or seen on or with the person during the search and has reasonable grounds to suspect is a dangerous implement,

14 (b) anything detected during the search by an electronic metal detection device that the device indicates is of a metallic nature. (6) (Repealed) Failure to comply with requests relating to search and dangerous implements A person must not, without reasonable excuse: (a) fail or refuse to produce anything detected or seen on or with the person in such a search when requested to do so by a police officer in accordance with sections 26 and 201, or (b) fail or refuse to comply with a request made by a police officer in accordance with sections 26 and 201 for the person to submit to a search. Maximum penalty: 50 penalty units. 28 Power to confiscate knives or other dangerous implements (cf Summary Offences Act 1988, s 28B) (1) A police officer may, in a public place or school: (a) take possession of anything that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in a person s custody, and (b) confiscate the thing. (2) Any such confiscated thing is to be dealt with in accordance with Division 1 of Part 17. (3) The power conferred by subsection (1) may be exercised whether or not the police officer requests the person to produce the thing under section 26. Division 4 Provisions relating generally to personal searches 29 Application of Division This Division applies to any search of a person carried out, or authorised to be carried out, by a police officer or other person under this Act (other than an internal search under Division 3 of Part 11), except as otherwise provided by this Act or the regulations. 30 Frisk searches and ordinary searches (1) A police officer or other person who is authorised to search a person may carry out a frisk search or an ordinary search of the person for any purpose for which the search may be conducted. (2) In conducting a frisk search, a police officer or other person may, if the police officer or other person has asked the person to remove a coat or jacket, treat the person s outer clothing as being the person s outer clothes after the coat or jacket has been removed. 31 Strip searches (cf common law) A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out. 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

15 (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. (10) If clothing is seized because of the search, the police officer or other person must ensure the person searched is left with or given reasonably appropriate clothing. (11) In this section: questioning of a person means questioning the person, or carrying out an investigation (in which the person participates). transgender person means a person, whether or not the person is a recognised transgender person: (a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether or not the person is, or was, in fact a transgender person. 33 Rules for conduct of strip searches (cf Cth Act, s 3ZI) (1) A police officer or other person who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following: (a) the strip search must be conducted in a private area, (b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched, (c) except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search. (2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. (3) A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must, unless it is not reasonably practicable in the circumstances, be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person. (4) A strip search must not involve a search of a person s body cavities or an examination of the body by touch. (5) A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (6) A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (7) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present. (8) This section is in addition to the other requirements of this Act relating to searches. (9) In this section: impaired intellectual functioning means: (a) total or partial loss of a person s mental functions, or (b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (c) a disorder, illness or disease that affects a person s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour. Note. Procedures for searches of a more invasive nature are dealt with under the Crimes (Forensic Procedures) Act No strip searches of children under 10 years 15