The never-ending war against inanimate objects – in this case drugs – was highlighted recently with police dog operations targeting children as they entered both Murwillumbah and Mullumbimby high schools.
Subsequently, The Echo sought to examine the warrants used and to raise awarness about your rights if a cute puppy attached to a policeman happens to sit down next to you.
Despite The Echo being denied access to view the school warrants, two other related warrants for Byron Bay and Murwillumbah streets and parks were made available.
It revealed that police were relying on previous drug detections and ‘suspicious activity’ for their application.
And it turns out the only drug that was detected in those operations appeared to be very small amounts of cannabis.
Dated July 30, 2014, both warrants viewed were submitted at the Murwillumbah Court House by Murwillumbah-based senior officer Jason McGinley.
The warrant application included an attached map of both Murwillumbah and Byron Bay, with requested search areas highlighted.
In the case of Murwillumbah, officer McGinley claimed that after information was obtained on the previous search operation, it resulted in ‘12 cannabis plants being seized during the operation within the CBD. No illegal drugs were located but numerous detections were indicated.’
This last sentence is interesting; despite detections being ‘indicated’, ‘no illegal drugs were located.’ It reinforces the finding of the NSW Ombudsman that such use of police resources is of questionable value.
Byron Bay’s warrant was slightly different, with the last operation resulting in ‘19 drug detections (cannabis)’ which resulted in cautions.
McGinley wrote, ‘Byron Bay has a high transitory population… [there is a] large volume of persons in possession and partaking in the consumption and supply of illegal drugs. Recent information received is that it is continuing… in the presence of holiday makers and families.’
So what oversight is there of police undertaking these types of operations?
While budgets and results are difficult to extract from police and politicians, a spokesperson for the NSW Department of Justice (DoJ) told The Echo that officers lodging warrants are required to do so under oath and there are penalties for giving false information. Under Search Warrants Act 1985, providing false or misleading material ‘in or in connection with an application for a warrant’ can attract a maximum penalty of ‘100 penalty units or imprisonment for two years, or both.’
Additionally the determination of whether to seal the warrant is the decision of the local courthouse clerk where the warrant is lodged, the DoJ spokesperson said.
But what about your rights if stopped and searched by police in public if you have not been arrested?
Kirsten Cameron from Legal Aid NSW pointed to a 2001 NSW court of criminal appeal ruling for R v Rondo which highlights ‘reasonable suspicion’. She told The Echo, ‘Despite considering a repealed section, [this case] still has weight in determining whether a search is lawful.’
From paragraph 53 it reads, ‘Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.’
But conventional wisdom of course is to always be polite and offer your name and address if asked. And if arrested, there is a right to silence.
It’s your right to seek legal advice before talking as well.
If being stopped and searched, you are also permited to ask the officer’s name and which station they are from.
The website for Legal Aid NSW advises that police have the power to search you – and your car, boat or other vehicle and possessions – if they have ‘reasonable grounds’ to suspect that you are carrying stolen goods or goods unlawfully obtained; prohibited drugs; an item that has been, or may be, used in a serious crime, for example tools to break into a car or house; knives, weapons or ‘dangerous implements’ and laser pointers.
Strip search rules
‘Police can pat you down, ask you to remove your outer clothing and shoes, look into your clothing and belongings and use an electronic metal detection device. They can also ask you to shake your hair and open your mouth.
‘Police can only perform a strip search if they have reasonable grounds to suspect that it is necessary and the circumstances are serious and urgent. They must provide you with as much privacy as possible.
‘As far as is practicable, the search must be carried out by a police officer of the same gender as the person being searched. In the case of a strip search it should be, as far as practicable, in a private area, out of sight of people of the opposite gender to you, out of sight of other people not involved in the search.
‘A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.’
And remember, if you believe an officer has misused their powers, including being unreasonably intimidating, you can make a complaint.
This can be done by contacting the Ombudsman’s office (toll free) 1800 451 524.
More can be found at www.legalaid.nsw.gov.au.
A local man who was cuffed and sprayed in the face with capsicum spray by police has had charges against him thrown out by the District Court upon appeal.
The decision last Thursday by Her Honour Judge Wells in the Lismore District Court convincingly overturned the findings of Local Court Magistrate Michael Dakin and held that the evidence of the two police officers involved, Senior Constables Amos and Hayworth, lacked credibility.
After being pulled over for a licence check just outside Mullumbimby on October 25, 2011, police conducted a search of John Scrivener, then aged 50, and his car, supposedly on suspicion of drugs. Police then alleged that Mr Scrivener became abusive towards them. However, Mr Scrivener instead claims he was abused and told The Echo he immediately lodged a complaint against the two officers after the incident.
Even though Mr Scrivener had told the officers that he intended to lodge a complaint, he told The Echo that he gave evidence in court that the police nevertheless ‘proceeded to violently assault me, including throwing me on the ground, jumping on me with their knees, punching me, pulling my hair, attempting to choke me and then cuffing me before spraying me in the face with capsicum spray.’
After Mr Scrivener was found guilty by Magistrate Dakin last September for resisting arrest, assaulting police officers in the execution of their duty and behaving in an offensive manner, he lodged an appeal, which was then heard in the higher-ranked District Court. Mr Scrivener won that appeal on August 8.
During the Local Court hearing, Mr Scrivener’s solicitor, Cameron Bell, argued that the search was illegal and that the evidence of the two police officers was so inconsistent that it could not be accepted.
However, Local Court Magistrate Dakin held that the search was legal and went on to find that the police witnesses were truthful notwithstanding the inconsistencies in their evidence. To add insult to injury, the Magistrate was critical of Mr Scrivener’s evidence and indicated that he was not a truthful witness.
'Preferred' police evidence: magistrate
Magistrate Dakin, a former police officer, even told the court, ‘I prefer the police evidence.’
On appeal, the District Court held that the actions of the police officers in searching Mr Scrivener were not justified as there was not the ‘reasonable suspicion’ required to conduct a legal search. The District Court also held that Mr Scrivener’s evidence was ‘consistent and clear’.
Most importantly, the District Court found that the evidence of the two police officers was not credible. Mr Scrivener told The Echo his lawyer Cameron Bell ‘found at least six discrepancies in the police officers’ evidence. Even the Crown prosecutor said they couldn’t offer any explanation for the discrepancies.’
One of the issues in the case was the allegation by the police officers of the existence of a small ‘resealable’ bag, which Senior Constable Amos said, ‘are normally used to put drugs in, namely cannabis’.
Her Honour noted that in the Local Court hearing the police prosecutor objected to Mr Bell cross-examining as to the whereabouts of that ‘resealable bag’. Although an important issue in the case, the cross examination was not allowed by the Magistrate who said that it was ‘not relevant’. Her Honour stated that this ‘casts a shadow’ as to whether the bag ever existed at all.
Mr Bell said, ‘The decision by Judge Wells was a clear and unarguable finding that, based on the facts and evidence in this case, the conviction of Mr Scrivener by the Local Court Magistrate could not be upheld. Her Honour indicated that it was not an appropriate consideration for a Magistrate to ask ‘why would the police act in a way like this towards the defendant’, as it reverses the burden of proof.’
Civil rights issue
The outcome shines a light on local civil rights issues; the increased police presence in Mullumbimby has resulted in a handful of complaints received by The Echo regarding recent aggressive behaviour by police towards the public.
Although the appeal process brought justice for Mr Scrivener, the public may feel less confident that faced with a similar situation, the Local Court will uphold their rights or allow their defences to be properly heard.
When asked what he had learnt from this experience, Mr Scrivener stated, ‘I’ve realised how easy it is for police to abuse their authority and get away with it, and how difficult it is to defend against false accusations and misrepresentations by police.’
‘I will never again feel safe when being stopped by police and I will always record any encounter I have in the future, for my own safety and security.
‘I don’t think I would do anything differently if the same circumstances arose again, apart from making sure I had my camera rolling.
‘I would recommend to anyone who has a similar experience with police, to immediately write down a detailed and accurate account of what happened as soon as possible after the incident. I did this and the written account was later used as the basis for an affidavit that I lodged with my complaint.’
Obtaining proper legal advice is also important.
‘I would also like to say that Cameron Bell has been a really perceptive and supportive representative throughout.’
When asked about the complaints against the officers, duty manager Inspector Darren Steel from the Tweed-Byron LAC told The Echo he had no knowledge of complaints lodged as the process is confidential and he is not on the complaints committee.