3.1 Drugs & Alcohol

Question 1

What sections of the Search and Surveillance Act 2012 relate to Drug searches?

Answer 1

s20 - Warrantless search, place & vehicle.
s21 Warrantless search - people in place & vehicle.
s22 Warrantless search - people
s124 Internal search prohibited

Question 2

What are the requirements of a warrantless search under each provision s20, 21 & 22?

Answer 2

RGTB controlled drug (as per schedules)
in Place & Veh (s20)
People in Place & Veh (s21)
Person (s22)
RGTS offence against MoDA committed
RGTB delay will lose evidence. (not for s22)

Question 3

What controlled drugs are relevant in S&S 20-23 (schedules)

Answer 3

i) Schedule 1 (class A)
ii) Part 1 of Schedule 2 (class B, morphine, MDMA, Can Preps)
iii) Part 1 Schedule 3 (class C)
iv) Part 3 of Schedule 4 (Precursors)

Question 4

What is an internal search?

Answer 4

Internal exam via device ( x-ray, MRI etc) or manual or visual via any body orifice

Question 5

What is not an internal search?

Answer 5

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

Question 6

When can an internal search be required?
Who can conduct it?

Answer 6

• s23 MoDA
• Under arrest for some MoDA offences
• Have RGTB certain property secreted in body

Can only be conducted by Registered Medical Practitioner

Question 7

Is an unreasonable search always unlawful?

Answer 7

No - not always (R v Merrit 2006)

unreasonable to believe package would be at Merrit’s address 5 days after delivery. Held unreasonable but exclusion of evidence disproportionate to breach of right, appeal dismissed

Question 8

MoDA
A. What two elements does RGTB require?

B. What reasonable grounds to SUSPECT are involved?

Answer 8

A. 1) RGTB belief a controlled drug specified on the parts of Schedules is in place or in possession of a person.
2) RGTB immediate entry necessary to avoid evidential material being destroyed, concealed, altered or damaged (s20 only)

B. That a MoDA offence is or about to be committed in respect of that controlled drug.

Question 9

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

Answer 9

No (Collins v Police 2007). Insufficient alone. Grey complexion, fidgety, nervous demeanour on its own not enough. Could be that of an anxious person.

Question 10

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

Answer 10

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 11

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

Answer 11

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 12

Sneller v Police: What were the circumstances?

Answer 12

Drug search: Sneller was charged with “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.

Question 13

Hoete v R: Reasonable Grounds for Belief

Answer 13

Prior drug convictions and observations of 1C behaviour at service station. Multiple factors for RGTB. Memory card and meth located in car. Memory card uncovered drug manufacture at H’s home.

Held no reasonable basis to seize memory card but admissable probative value outweighed propriety.

Question 14

Hill v AG - Reasonable grounds for belief

Answer 14

RGTB controlled drug in schedules. Officer didn’t turn mind to the exact drug he was searching for, only that it was a white powder.

Officers don’t need to know exact drug, only reasonable grounds for believing that it is involved. Need to keep up to date with packaging and distribution methods etc

Question 15

s4 Sale and Supply of Alcohol Act 2012. What is the object of the act?

Answer 15

1. Sale, Supply and consumption of alcohol undertaken safely and responsibly
2. Harm caused by excessive or inappropriate consumption should be minimised.

Question 16

s267 Power of entry on licensed premises. Describe the powers of entry that allows a constable or an inspector to enter any licensed premises?

Answer 16

Police may at any reasonable time enter and inspect any licensed premises to ascertain whether the licensee is complying with the provisions of the Act and conditions of the license. Or reasonable grounds to believe offence against the Act.

Question 17

s267 What may constable or inspector require of licensee or manager (2)

Answer 17

1. Production of any license or document.
2. Provide information or assistance relating to duties of licensee or manager.

Question 18

If licensee or manager fails or refuses to admit Police under s267 Sale and Supply of Alcohol Act, what course of action should you consider?

Answer 18

Warn for obstruction and arrest if obstruction continues (s23 Summary Offences Act). Liable on conviction to a fine of not more than $2000.

Question 19

s269 Power of Police to demand information. What grounds may Police demand identifying particulars?

Answer 19

When Police have reasonable grounds to suspect any person has committed or attempted to commit any offences against this Act.