Jimmy Singh, Principal at Criminal Defence Lawyers Australia, provides a comprehensive guide on police search power in NSW, particularly when it comes to children. He discusses situations that allow for searches without a warrant, other safeguards that need to happen, reasonable suspicion and more.
A child is defined as a person under the age of 18-years.
The law presumes conclusively that a child under the age of 10-years cannot be guilty of an offence. But if a child is aged between 10 and 14-years, that child will be presumed to be incapable of bearing criminal responsibility unless evidence can be shown otherwise.
Generally, the Children’s Court deals with charges against children if the accused child was under the age of 18-years at the date of the alleged offence, but under the age of 21-years when charged.
The Legislation that covers the law on criminal proceedings against children is the children (Criminal Proceedings) Act 1987 (NSW).
The law that covers the police search powers in NSW without a warrant for adults and children is mainly covered in parts 4 and 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’). Below is a brief outline of these police powers concerning children in NSW.
Click here for the law on when police can search your car without a warrant in NSW.
The case of DPP v Leonard [2001] NSWSC is a good example of a case involving drug supply charges over the traffickable quantity in this context.
Police in NSW are prohibited from searching a child aged under 10-years, pursuant to section 34 of LEPRA.
There are two main types of search that police may do. The first is either a general search, and the second is a strip search.
A general search involves, the quick running of hands over a person’s outer clothes, passing an electric metal detector device over a person’s outer clothing, examination of anything in a person’s possession or control, or requiring a person to remove a jacket or other similar article of clothing, including socks or hat. Clothes cannot be removed for this type of search.
A strip search on the other hand is requiring the person subjected to such a search to remove clothing.
Police Powers to Search a Person Without Warrant
In NSW, according to section 21 of LEPRA, a police officer is permitted to stop, detain and search a person if the officer holds a reasonable suspicion that the other person has possession or control of something either:
- Stolen or unlawfully obtained;
- That is a prohibited drug or plant in contravention of the Drug Misuse and Trafficking Act;
- That is a dangerous article in a public place that is being used or was used in an offence that carries at least a maximum penalty of five-years imprisonment (or other relevant offence);
- Used or intended to be used in an offence carrying at least a maximum penalty of five-years imprisonment (or other relevant offence).
Further to this, police are also given further powers to seize and detain anything found from the search if the officer forms a reasonable suspicion that it can provide evidence in respect to the alleged offence, or that it’s a thing that was something stolen or unlawfully obtained, or is a dangerous article (i.e. knife, firearms, illicit drug etc).
Specifically concerning children, a police officer who forms a reasonable suspicion that a person has possession or control of a dangerous implement unlawfully in that person’s possession or control, is permitted to stop, search and detain that person if that person is in a school or public place, according to section 23 of LEPRA.
A police officer can then also search a school student’s locker or school bag. In those circumstances, the officer must allow the student to nominate an adult on school premises to be present during the search if reasonably possible.
This power also extend to permitted the police officer to seize and detain any implement found that is a dangerous implement if the police officer forms a reasonable suspicion that the implement is a dangerous implement and unlawfully in the student’s possession or control.
In addition to this, a police officer is also permitted to seize and detain any dangerous article found in premises (i.e. home, car, ship, or building) if the police officer was lawfully on the premises or building etc, and if the police officer forms a reasonable suspicion that the dangerous article is being or has been used in relation to an offence.
A ‘dangerous implement’ here includes any substance capable of causing bodily harm, even a laser pointer, or knife.
A police officer is also permitted to search a person at the time of arrest or after arrest if the police officer forms a reasonable suspicion that is would be prudent to conduct the search to ascertain whether that person is carrying anything that could be used to help escape lawful custody, anything dangerous, something connected with the offence, that will provide evidence in relation to the offence, or anything used or intended to be used in respect to the offence.
Further to this, a police officer is allowed to search a person who has been arrested for purposes of being taken into lawful custody if the police officer forms a reasonable suspicion that it is prudent to do the search to ascertain whether that person has anything dangerous or that could be used to help escape lawful custody.
Other than the above circumstances, a police officer may search an arrested person who is at a police station or other place of detention in lawful custody without the requirement of forming a reasonable suspicion as required in the above outlined circumstances.
In respect to children aged 10-years or more, but under the age of 18, or those who have an impaired intellectual functioning, a police officer is only permitted to conduct a strip search to such a person if it is in the presence of a guardian or parent.
If the child does not agree to a parent or guardian being present, the strip search can then only be conducted in the presence of someone else who is not a police officer provided that someone is capable of representing the child’s interests and someone the child agrees to be present.
A police officer is permitted to conduct a strip search in the absence of a parent, guardian or a person otherwise acceptable in the way outlined above if the police officer suspects on reasonable grounds that delaying the strip search is likely to cause evidence to be concealed or destroyed, or an immediate search is otherwise necessary for the protection and safety of a person. In these circumstances if a police officer conducts a strip search, the officer must make notes of the reasons for not conducting the strip search in the presence of a parent, guardian or other capable person.
Other Safeguards Police Must Comply with When Conducting a Search
Generally, a police officer is allowed to search a person if that person consents to it.
Before conducting a consensual search of a person, a police officer is first required to:
- Provide that person with evidence that he/she is a police officer (unless in uniform) (section 34A); and
- provide his/her name and place of duty, according to section 34A.
As further safeguards, under section 29(2), an officer conducting a consensual search on a person:
- Can only conduct the search for the same purpose for which the officer obtained the original consent to search; and
- Can only search that person for a general search, not a strip search unless that person specifically consents to a strip search.
Section 32 and 33 of LEPRA outlines many other safeguards that must be complied with by police.
Some of these safeguards and limitation include the following:
- A police officer is not permitted to search a person’s body cavities, touch a person’s body, remove more clothing than reasonably necessary for the purposes of the search, or visually inspect more than the officer believes on reasonable grounds to be reasonably necessary for the purposes of the search.
- A police officer is permitted to strip search a person at a police station or other place of detention if there is a reasonable suspicion that the strip search is necessary for the purposes of the search.
- If in a place other than a police station or place of detention, a police officer is only permitted to strip search a person if the officer forms a reasonable suspicion that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make it necessary.
- Police are not permitted to search a person’s genital area or breasts, unless the officer forms a reasonable suspicion that it is necessary to do so for the purposes of the search.
- When conducting a strip search, police must where reasonably practicable in the circumstances:
- Conduct it in a private area
- Must not conduct it in the presence or view of a person or people whose presence is not necessary for the purposes of the search
- Must not conduct it in the presence or view of a person or people of the opposite sex.
Police Power to Take Identification Particulars of Children
Generally, a police officer is permitted to take necessary particulars to identify a person who is in lawful custody for any offence. If that person is over the age of 14-years, the officer can take the child’s finger-prints, palm-prints and photograph, according to section 133 of LEPRA.
If the child is under the age of 14-years who is in lawful police custody for an offence, the police officer is not permitted to take the child’s photo, finger-print or palm-print unless it is obtained as a result of a court order under. The police may apply to the Children’s Court for such an order under section 136 of LEPRA.
How much Force Can Police Use in Exercising a Search Power?
Section 230 of LEPRA permits a police officer who is exercising a search power against a person, including a child (except if under the age of 10) to use reasonably necessary force in discharging that purpose, provided it is done lawfully.
What is a Reasonable Suspicion?
The law on whether a suspicion is based on reasonable grounds is expressed in the famous case of R v Rondo [2001] NSWCCA 540.
In summary, there are two steps. Firstly, the police officer is required to form the requisite suspicion in his/her mind. This involves ascertaining the basis or information in the officer’s mind as to forming the suspicion at the time of deciding to search.
Secondly, once that information or basis is discovered by the court, the court will then endeavour to determine whether that basis forms reasonable grounds for the suspicion formed. In other words, whether a reasonable person in the position of the independent observer would form the requisite suspicion having considered the source of the information and its context.
A reasonable suspicion needs to be more than a possibility but less than a reasonable belief.
Consequences of an Unreasonable Suspicion
As many experienced criminal lawyers in Sydney are familiar with, it is not uncommon to run legal arguments as to the legality of a police search for the purpose of excluding crucial police evidence obtained as a result of a search.
In the event a court concludes that the suspicion held by the police officer to conduct the search was not based on reasonable grounds, the court will go on to next consider whether the evidence obtained as a result of the illegal search ought to be excluded under section 138 of the Evidence Act 1995 (NSW).
If the court concludes that the desirability of admitting the evidence is not outweighed by the undesirability of admitting it, the evidence will be excluded, which can result in the dismissal of the charges.
Mr. Jimmy Singh is the principal lawyer at Criminal Defence Lawyers Australia, a team of Sydney criminal lawyers. He is highly respected amongst the profession and recognised for his experience and success, exclusively practising in criminal law for over a decade. Connect with Jimmy via email or LinkedIn 
