Daniel Fromberg v R [2017] NSWDC 259

Daniel Fromberg v R [2017] NSWDC 259

The officer commenced a strip search before having reasonable grounds to suspect that such a search was necessary and without complying with the mandatory LEPRA requirements for privacy, least invasive search and limits on touching. The appellant's lawful resistance to the first unlawful strip search could not create reasonable suspicion for a later strip search. The contraventions were significant, compliance was simple, and the drug offence was not particularly serious, so under s 138 Evidence Act 1995 the undesirability of admitting the evidence outweighed its desirability. Without the evidence of the drugs located in the appellant's underwear, there was no evidence to support the...

Jurisdiction
Australia
Judgment Date
18 September 2017
Procedural Posture
Criminal Conviction Appeal Concerning One Count of Possess Prohibited Drug Contrary to Section 10(1) Drug Misuse and Trafficking Act 1985 / Appeal to the District Court of New South Wales From a Conviction Entered by Magistrate Stapleton at Waverley Local Court
Outcome
Appeal against conviction allowed; conviction and penalty set aside.
Legal Topics
['possess Prohibited Drug' 'strip Search' 'reasonable Suspicion' 'unlawfully Obtained Evidence' 'section 138 Evidence Act Discretion' 'conviction Appeal']
['criminal Law' 'evidence' 'police Powers'] ['possess Prohibited Drug' 'strip Search' 'reasonable Suspicion' 'unlawfully Obtained Evidence' 'section 138 Evidence Act Discretion' 'conviction Appeal']

Case Brief

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Procedural Posture

Criminal Conviction Appeal Concerning One Count of Possess Prohibited Drug Contrary to Section 10(1) Drug Misuse and Trafficking Act 1985 / Appeal to the District Court of New South Wales From a Conviction Entered by Magistrate Stapleton at Waverley Local Court

Legal Issues

  1. 1 ['Whether the search of the appellant progressed from an ordinary search to a strip search before the appellant pulled away from the officer.' 'Whether police had the requisite reasonable suspicion under LEPRA to conduct a strip search.' 'Whether police complied with the procedural requirements for searches and strip searches under ss 32 and 33 LEPRA.' "Whether evidence of drugs found in the appellant's underwear should be admitted under s 138 Evidence Act 1995 if obtained unlawfully or improperly." 'Whether, absent the drug-location evidence, there was evidence to support the prosecution case.']

Ratio Decidendi

The officer commenced a strip search before having reasonable grounds to suspect that such a search was necessary and without complying with the mandatory LEPRA requirements for privacy, least invasive search and limits on touching. The appellant's lawful resistance to the first unlawful strip search could not create reasonable suspicion for a later strip search. The contraventions were significant, compliance was simple, and the drug offence was not particularly serious, so under s 138 Evidence Act 1995 the undesirability of admitting the evidence outweighed its desirability. Without the evidence of the drugs located in the appellant's underwear, there was no evidence to support the...

Court Disposition

Appeal against conviction allowed; conviction and penalty set aside.

Orders

  • ['Appeal against conviction is allowed.' 'I set aside the conviction and the penalty imposed by the magistrate.']