Author Archives: Jarryd Bartle

About Jarryd Bartle
Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.

When Can Officers Perform Body Cavity Searches?

Preparations are being made to pursue a class action lawsuit against the NSW Police Force over their practice of conducting unlawful strip searches.

Whilst ‘regular’ strip searches are certainly embarrassing and demeaning, internal body cavity searches can be downright humiliating and cause a lasting psychological impact – especially on children and those who have previously been sexually assaulted.

Here’s a thumbnail sketch of the rules relating to body cavity searches.

Searches by police officers

Internal searches are classified as an ‘intimate forensic procedure’ and cannot be undertaken by law enforcement as part of a strip search or other bodily search.

Generally, an internal search of a body cavity does not include a person’s mouth, which can be visually observed as part of a personal search.

Police can only search your bodily cavities with your consent or after they have obtained a court order authorising the search.

This applies even if you are under arrest.

Police may be able to intervene if they observe you attempting to swallow or insert drugs into a body cavity that may be harmful to ingest. This is done to prevent self-harm and is not considered ‘a search’.

Generally, you should not feel compelled to consent to an internal search by police unless a warrant has been issued.

Searches by customs officers

Broader powers for internal searches exist for customs officers who wish to detain and search a person who they suspect on reasonable grounds is unlawfully internally carrying prohibited goods such as illicit drugs.

Customs officers can carry out an internal non-medical scan using ‘prescribed equipment’ if a person consents or if a court order is granted allowing the internal ‘scan’.

If consent is not granted or if an internal non-medical scan indicates the presence of an internally secreted prohibited good, senior members of Customs or a member of law enforcement can apply to a judicial officer have a person detained for a further search.

A more in-depth internal medical search can occur if a detained person consents or a court order is granted. An internal medical search can only be undertaken by a medical practitioner.

Searches by corrections officers 

NSW Corrections officers have a number of procedures relating to searching inmates for contraband.

Correctional officers must not internally search an inmate for contraband. However, if an officer suspects that an inmate is attempting to conceal contraband internally the officer may use necessary force to restrain the inmate’s hands to prevent the concealment.

If an inmate is suspected of internally secreting contraband, correctional officers must arrange for the inmate to be clinically assessed to determine possible threats to their health.

An inmate suspected of internally secreting contraband may be held in a ‘dry cell’ (without toilet or running water) pending a clinical assessment.

A medical practitioner may remove internally secreted contraband if it poses an immediate risk to health, with consent or following a court order granting its removal. An X-ray or other medical imaging procedure may be performed to detect the presence of contraband.

The Use of ‘Ice’ and the Criminal Justice System

There is an argument that coverage by the mainstream media of the drug crystal methamphetamine (or ‘ice’) has skewed both public perceptions about the drug itself and its users, as well as the way in which users are dealt with by those involved in the criminal justice system.

This article attempts to separate fact from fiction, and to explain how the use of drugs can impact on the way in which defendants are dealt with by the courts.

The effects of ‘ice’

Ice speeds up messages between the body and brain increasing energy, reducing appetite and increasing heart rate.

At moderate doses, it can make people nervous and agitated but, at high doses, it can cause more worrying effects including psychosis, paranoia and aggression.

A correlation between ice use and offending does exist, but the relationship is more complex than you would think.

The Drug Use Monitoring in Australia (DUMA) program detects the presence of illicit drugs in the urine of people entering custody in Australia. In 2018-19, fifty-two percent of detainees who participated in DUMA tested positive for methamphetamine. This was by far the most prevalent illicit drug detected, higher than cannabis.

Whilst this indicates a relationship between ice use and offending, research attempting to establish a direct link is mixed.

A 2006 paper looking at the relationship between ice use and violence in NSW found insufficient evidence for a direct-link between ice consumption and violence. However, it did note a relationship between methamphetamine-induced psychosis and offending.

More recent research has found that the relationship between ice use and violence is stronger if defendants are frequent users of high purity methamphetamine, as opposed to occasional or recreational users.

Moreover, ice use tends to be more common amongst people who have other risk-factors for offending – such as impulsiveness – meaning ice can exacerbate an existing predisposition to violence, rather than causing violent behaviour directly.

Overall, the relationship between ice use and offending is far from straightforward.

Is Ice Use A Defence?

There is a common misconception in the community that the criminal justice system treats drug users more leniently, or considers drug dependence (addiction) a ‘defence’.

This is not the case.

Part 11A of the Crimes Act 1900 (NSW) outlines the general principles that apply to self-induced intoxication, including whilst ‘high’ on illicit drugs such as ice.

A distinction is made between someone willingly getting high (self-induced intoxication) and people who are drugged without their consent.

Generally, self-induced intoxication is not relevant to determining a guilty mind for most offences (s428D), including murder, manslaughter and assault causing death (s428E).

If an offence requires asking the question of what a reasonable person would do, the court will consider the state of mind of a reasonable sober person, regardless of whether the defendant was high at the time (s428F).

Section 428C states that self-induced intoxication can be considered when an offence requires specific intent (for example, an intent to cause injury) but not if a person had intended to commit the crime before getting high or got high in order to commit the offence.

Overall, being high on ice at the time of offending it is not defence.

When Can Addiction Be Considered?

If someone is dependent (‘addicted’) to ice, this may be raised within the context of a diversion program, Drug Court referral or during the sentencing of an defendant.

Drug addiction is not inherently a mitigating factor in sentencing and courts do not normally take the fact that the defendant was addicted as a good reason to give a lesser sentence.

The reason behind this was outlined by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 whilst sentencing a defendant for a robbery offence:

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”

However, drug addiction may be considered in some circumstances including:

  • Whilst assessing prospects of rehabilitation.
  • As an indicator of relevant mitigating factors such as social disadvantage, poverty or mental health issues.
  • If the defendant became dependant at a very young age, where it couldn’t be considered a personal choice.

Going to court?

If you have been accused of a criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward.

Magistrate Dismisses Drug Driving Charge for Medicinal Cannabis User

A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.

Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.

In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.

Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.

Drug Driving Laws

Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.

Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.

Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.

Penalties include a criminal record, licence disqualification and fines.

Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.

Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs

Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.

However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.

Clearly, the current laws provide little certainty for medicinal cannabis users.

Dismissing the Charge

South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.

The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.

The factors relevant to a determination under section 10(1)(a) in NSW are:

  • the person’s character, antecedents, age, health and mental condition,
  • the trivial nature of the offence,
  • the extenuating circumstances in which the offence was committed, and
  • any other matter that the court thinks proper to consider.

Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.

Need for Reform

Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.

In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences.  However, this part of the amendment failed to pass through both houses.

“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers® in 2017.

There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.

Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.

This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.

Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.

Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.