Search and Seizure - Drugs

Question 1

What section os the Search and Surveillance Act 2012 relate to Drug searches?

Answer 1

S20 - Warrantless Search, Place MODA
S21 Warrantless Search - Vehicle
S22 Warrantless Search - People
S124 internal Search prohibited

Question 2

What are the requirements of a warrantless search?

Answer 2

RGTB Controlled Drug (as per Schedules) in
Place (s21)
Vehicle (s21)
Person (s22)
Offence against MODA committed
Delay will lose evidence.

Question 3

What is an internal search

Answer 3

Internal exam via device (x-ray, MRI etc) or

Manual or visual exam via any body orifice.

Question 4

What is not an internal search?

Answer 4

Visual inspection of mouth nose or ears (whether aided by torch) which does not cause entry to the orifice.

Question 5

Is an unreasonable search always unlawful?

Answer 5

No - Not always (R v Merrit 2006)

Question 6

What two elements does RGTB require?

Answer 6

1: A belief a controlled drug is in a place
2: That the drug is specified on the parts of Schedules specified.

Question 7

Does drugged appearance of a person known as a drug user amount to RGTB for search?

Answer 7

No (Collins v Police 2007). Insufficient.

Question 8

What was found in R v T Case regards internal search?

Answer 8

Appellant seen during search to be concealing something in her mouth. Restrained and instructed to spit out the object.
Court noted The purpose of the section is to prevent invasion of the body…The act does not prohibit what can be seen by normal observation of the face. Restraining the appellant to prevent her swallowing had not amounted to an internal search.

Question 9

Detail R v Roulston decision, Internal search and Bill of Rights cruel and degrading treatment

Answer 9

Appellant strip searched, drugs found.
Appellant picked up and placed in mouth.
Force applied to face and throat to eject package.
Held: No internal Search (no insertion into mouth).
Search reasonable - no excessive force used, and
S41 Crimes Act held as reasonable reason to prevent swallowing of the package.

Question 10

Sneller v police: What were the circumstances?

Answer 10

Drug Search: Sneller was charged wit “Obstruction” for refusing to spit out an item.
Police used force “lengthy struggle” eventually using spray to cause Sneller to spit the item out.
Held: No specific power for police to force appellant to open mouth, spit out item.
Passive resistance to spitting out the item not obstruction.