Chapter 3 - Drugs, Alochol, Mental health Flashcards
Drugs - Section 124 –
Internal searches
generally prohibited
(1) Unless authorised by another enactment, an enforcement officer must not conduct an internal search of any part of the body of any person, except for, with the person’s consent, searching the person’s mouth.
(2) A constable must not require any other person to conduct an internal search of any part of the body of any person, except as provided in section 23 (which relates to internal
searches in some circumstances of people under arrest for offences against the Misuse
of Drugs Act)
Drugs - What is an internal search?
An internal search is an internal examination of any part of the person’s
body by means of:
an X-ray machine or other similar device, or
a manual or visual examination (whether or not facilitated by any
instrument or device) through any body orifice.
Drugs - What is not an internal search?
A constable, authorised officer or searcher may conduct a visual examination
(whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but must not insert any
instrument, device, or thing into any of those orifices.
A visual examination in these circumstances is not an “internal search” and
is permitted as part of a rub-down search.
(s87)
Drugs - Who may conduct an internal search?
An internal search must be conducted by a registered medical practitioner.
Drugs - When can an internal search be required?
A constable can only require a person to permit a medical practitioner to conduct an internal examination in circumstances listed in section 23 of the Act. They relate to people under arrest for some offences against the Misuse of Drugs Act and when the constable has reasonable grounds to believe the person has certain property secreted within their body.
Drugs - What were the findings of Hoete v R Reasonable grounds for belief, s 20 Search & Surveillance Act 2012
Held
Hoete failed to establish sufficient grounds to support appeals; Police had grounds
to conduct warrantless search. Police had no reasonable basis
to examine and subsequently seize the memory card; the District Court therefore
erred in not finding that evidence improperly obtained, however the court correctly declared evidence admissible at trial regardless that improperly obtained as probative
value outweighed impropriety.
Result
Appeal dismissed
Drugs - What were the findings of: R v Merrett, Reasonable grounds for belief, s 20 S&S
Police identified drug supplier from tick list and then did a warantless search 5 days later.
Findings:
Held
Search unreasonable even though police had genuine subjective belief in its
legitimacy and were required to act quickly. This case also concerned the admission
of evidence gathered, and given the circumstances in which police required to make
decision, exclusion of evidence would be disproportionate to breach of right
involved; appeal dismissed.
Drugs - What are the findings of: Hill v AttorneyGeneral (1990 – Reasonable grounds for belief
“Reasonable ground for belief” will usually be a two step process:
First, are there reasonable grounds for believing a controlled drug is in the
house, vehicle etc, in respect of which an offence against the Act has been or is being committed; AND
Second, are there reasonable grounds for believing the drug involved is one of those specified.
Drugs - What are the findings of: Collins v Police 2007 Search: demeanour, appearance and “reasonable grounds to believe”
The decision
The High Court found that evidence of demeanour and appearance, whilst perhaps
warranting strong grounds for suspicion and, seemingly, an actual belief in the
consumption by the officers concerned, did not provide police with reasonable
grounds for the belief under the Act.
The court found the problem with accepting the lawfulness of the search in these circumstances was the symptoms were also symptoms that could be exhibited by persons who have consumed drugs lawfully obtained and that nervousness can be
experienced by innocent people being interviewed by the police in public.
The conviction was quashed
Drugs - What were the findings of: Sneller v Police obstruction, internal search, see now s 124 Search and Surveillance
S was entitled to decline to allow police to undertake internal search of his mouth
and no specific power in MDA entitling police to require S to spit out contents of his mouth. S was not obstructing police when he passively declined to spit out item. In the circumstances, police case did not fail due to failure to produce actual
warrant because S’s counsel did not challenge police witnesses as to whether
warrant existed and what were its terms; appeal allowed.
Alcohol -
How can you
Close premise by
order? Or other means.
1 Believe a riot may occur, fighting or serious disorder
- District Judge, 2 Justices or community magistrate at a Constables request close every licensee in or within a specified distance for sale of alcohol during the time specified. Premise can be closed immediately, say at 9.00pm for 24 hours. The 24 hour aspect doesn’t start until the end of the night, supposedly Midnight.
- You can use force to close premises
- Significant threat to public safety.
- conduct of licensed premise amounts to substantial public nuisance.
- Belief that offence of 5 years or more committed and there is further risks of it continuing.
- Authority from Substantive Sgt should be sought.
Mental Health - Section 40 & 41 Taking an inpatient into custody / care
& S110 Urgent assistance
40 is giving DAOs powers to take inpatient into care .
S41 gives Police power to assist DAOs to achieve this.
With DAOs may enter premise, if not in uniform must produce ID etc..
If detained under this power at the place, or taken to another place for medical examination - it has to be under 6 hours and the time it takes to conduct a medical examination.
(7) The constable must not exercise the power in subsection (2) without a warrant, if it
would be reasonably practicable to obtain a warrant
Mental Health - S122B - What must you do if you use force
If force has been used under this section,—
(a) The circumstances in which the force was used must be recorded as soon
as practicable; and
(b) A copy of the record must be given to the Director of Area Mental Health
Services as soon as practicable.
Metal health - What are some of the powers of entry to consider.
Police have no power under the Mental Health (CAT) 1992 Act to enter
private property or to detain a person with a mental disorder on private
property, unless asked to do so by a DAO or medical practitioner.
Implied consent - but must leave if asked to.
Any lawful occupier gives authority.
Consider Section 7 - inpatient unlawfully at large.
Section 8 - Imprisonable offence and CADD
Section 14 - Warrantless entry to prevent injury or damage to property.
