3. Drugs and Alcohol

Question 1

Section 20 - Search and Surveillance Act 2012
Warrantless search of places and vehicles in relation to the Misuse of Drugs Act 1975

Answer 1

You can enter and search a place or vehicle, only when a search warrant is impracticable and reasonable grounds to believe CADD will occur.

CADD = concealed, altered, damaged or destroyed.

Question 2

Section 21, Search and Surveillance Act 2012 (controlled drugs)
Warrantless searches of people found in or on places or vehicles.

Answer 2

A constable conducting a search of a place or vehicle under section 20 may, without warrant, search any person found in or on the place or vehicle.

Question 3

Section 22, Search and Surveillance Act 2012
Warrantless power to search for controlled drugs and precursor substances if offence suspected against the Misuse of Drugs Act 1975

Answer 3

A constable can search a person if reasonable grounds to believe drugs or precursors are present, and an offence against MODA ‘75 has been, is being, or is about to be committed, in respect of that controlled drug or precursor.

Question 4

Section 124, Search and Surveillance Act 2012
Internal searches

Answer 4

You cannot conduct an internal search of any part of the body of any person, except for, with the persons consent, searching the persons mouth.

Question 5

What is an internal search?

Answer 5

Is an internal examination of any part of the persons body by means of;
-an x-ray machine or similar device, or
-a manual or visual examination through any body orifice.

Question 6

What is not an internal search?

Answer 6

A Constable may conduct a visual examination of the mouth, nose, and ears, but must not insert any instrument 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.

Question 7

Who may conduct an internal search?

Answer 7

An internal search must be conducted by a registered medical practitioner.

Question 8

When can an internal search be required?

Answer 8

Only when it relates to offences against the Misuse of Drugs Act 1975, and a constable has reasonable grounds to believe the person has secreted drugs within their body.

A constable could then require a person to permit a medical practitioner to conduct the internal examination.

Question 9

Hill v Attorney General
Reasonable grounds for belief

Answer 9

It is important that an officer turns his mind to what drug he suspects is involved because you need to have reasonable grounds for believing the drug involved as one of those specified.

Cannot just say “any drug”.

Question 10

Collins v Police
Demeanour, appearance and reasonable grounds to believe

Answer 10

Two officers witnessed a person displaying drug like behaviours.

The High Court found the evidence of demeanour and appearance alone, did not provide Police with reasonable grounds for the belief under the act.

Evidence of demeanour and appearance alone is unlikely to justify a search under the Search and Surveillance Act.

Question 11

R v T
Internal search
Search warrant where female put glad wrap in her mouth containing morphine sulphate tablets

Answer 11

She was laid face down on a bed and told to spit out the object. She claimed unreasonable search and seizure.

The Court confirmed there had been no internal search.

Question 12

R v Roulston
Internal search. Small package seen in crutch of underpants. The appellant placed a package in his mouth.

Answer 12

Police applied force to neck and head, closed nostrils, and depressed throat. Appellant opened his mouth and the package fell out.

Court found this was not an internal search. Police were trying to prevent appellant from ingesting drugs and putting his life and health at risk. Police did not put their fingers or any instrument into the appellants mouth. Use of force was appropriate.

Question 13

Sneller v Police - internal search

Sneller refused to spit something out of his mouth when requested and a lengthy struggle commenced, including pepper spray.

Answer 13

Police require a persons consent for an internal search of the mouth. Sneller was not obstructing when passively declining to spit. He did not give consent. Sneller was entitled to decline. The appeal was allowed.

Question 14

Section 265, Sale and Supply of Alcohol Act 2012
Closure of premises by order

Answer 14

If a riot occurs or there are reasonable grounds for believing that a riot may occur, in any place, a District Court Judge may at the request of a constable order a licensed premises to close, for 24 hours.

Any constable may use any force necessary for the purpose of closing the licensed premises.

Any manager that keeps the licensed premises open is liable to a fine not more than $10,000 and a seven day suspension of their license.

Question 15

Section 266, Sale and Supply of Alcohol Act 2012
Closure of license premises by Police

Answer 15

If a riot is taking place or there a reasonable grounds for believing that a riot may occur at a licensed premises, or if there is serious disorder, or a significant threat to public health or safety, or a substantial public nuisance, or if there are reasonable grounds for believing offences have been committed with five years or more penalty…,

A constable may order the closure of the licensed premises for no longer than 24 hours.

Authority should first be sought from a Sergeant or above.

Question 16

Section 267, Sale and Supply of Alcohol Act 2012
Powers of entry to license premises

Answer 16

Any constable may at any reasonable time enter and inspect a licensed premises to ascertain whether they are complying with the provisions of the act.

The constable may require the production of any license and require the manager to provide any information reasonably required.

Offence punishable by $2000 fine.

Question 17

What factors should you consider when deciding to close a licensed premises?

Answer 17

Police must consider the risk and impact of the closure on the licensee.

Consider having angry patrons being removed from the premises and the elevated likelihood of disorder. Consider undue financial impact and resulting criticism of Police.

Must consider the weight of evidence supporting a closure, previous interactions with Police, likelihood of escalating violence, and the duration of the closure.

Any Constable but authority should be sought from a substantive Sergeant or above.

Question 18

Hoete v R

Answer 18

Police had grounds to conduct warrantless search - 18(2)

Police had no reasonable basis to examine and subsequently seize the memory card, however deemed admissible as probative value outweighed impropriety - appeal dismissed.