X

Drug possession and drug supply offences are common at music festivals. This is the main reason for there being a strong police presence at these festivals.

One of the fundamental rights that you have is the right to remain silent. By choosing not to answer police questioning does not mean that you are going to make the situation worse because it “looks worse”.

The police are trained and aware that you all have a right to remain silent. This includes the right to refuse to answer any police questioning if you are a suspect or if police are searching you with a drug dog.

It is usually a good idea to politely refuse to answer any police questioning in relation to a police investigation into an offence. They cannot force you to talk, nor are they allowed to threaten that if you don’t tell them the information they seek that you can get into more trouble.

If you choose to talk voluntarily, then anything you say can and will be used against you in court. The police will certainly use it against you if it strengthens their case against you.

Be polite, stay calm and be aware of what your rights are, particularly if you are at a music festival and are faced with a bunch of police with a police dog who begins sniffing you.

 

Is it Legal to Film a Police Officer in New South Wales?

NSW Police acknowledge that you can film police officer(s) conducting their duty in public. This is important from an accountability point of view and transparency to build and maintain confidence in the NSW Police Force.

being allowed to use your phone or camera to film or record police doing their duty in public also helps preserve evidence of an alleged crime scene in order to reach justice. A record of an incident is the best and most reliable type of evidence.

While it is legal to record police, it is illegal to obstruct a police officer while in the execution of his or her duty. Section 58 of the Crimes Act 1900 (NSW) prescribed up to 5 years imprisonment for this offence.

 

Can Police Ask for My ID?

Police have no power to require you to disclose your identification. Police are allowed to require you to disclose your ID in the following limited circumstances:

  • If the police officer suspects on reasonable grounds that you may be able to help in the investigation of an alleged indictable offence because you were at or near a place where the alleged offence occurred at some stage before, at the time or soon after it occurred,
  • If the police officer proposes to give you a direction to leave a place,
  • If the police officer suspects on reasonable grounds that an AVO order has been made against you.

Can Police Use Drug Detection Dogs at Music Festivals?

A police drug detection dog is allowed to be used to search people to detect prohibited drugs or plants on persons at music festivals. This does not necessarily mean that police officers are allowed to search a person if a drug detection dog indicates that the person has drugs on them.

The power to use drug detection dogs in New South Wales are limited under Part 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

 

When Can Drug Detection Dogs be Used to Search You?

At music festivals, NSW Police officers are allowed to use a dog to search a person to detect prohibited drugs or plants, without a warrant, in the following circumstances:

  • If the person is at, or is seeking to enter, or leave a public place where there is a sporting event, concert, or other artistic performance, dance party, parade or other entertainment (including a music festival), or if the person is seeking to enter or leave any part of premises used for drinking alcohol that is sold at the premises, and
  • If the officer is entitled to enter, or be in or on the particular premises, and
  • If the dog is under the officer’s control, and
  • If the officer is executing his or her functions as a police officer.

Some limitations that a police officer must comply with in using a drug detection dog to search people for prohibited drugs include the following:

  • To take all reasonable precautions to prevent the dog touching the person,
  • To keep the dog under control when using the dog to carry out the general drug detection,
  • Police officers are not allowed to enter premises that the officer is otherwise authorised to enter, nor to detain a person who the officer is not otherwise authorised to detain.

 

What Happens if a Drug Dog Indicates That You Have Drugs On You?

Remain calm. If a drug detection dog indicates the presence of drugs on you after having searched you, then the police officer is not allowed to search you without a warrant simply by that reason alone. Police can search you if you give them consent.

 

When can a Police Officer Search You?

Police can search your body if you give consent or if they have a valid warrant on them at the time. If police don’t have either, then before a police officer is allowed to search your body or any property in your possession, the officer must have a reasonable suspicion that you have possession or control of a prohibited drug or plant. Section 21 of LEPRA requires this. A drug detection dog indicating the presence of drugs on you does not on its own amount to a reasonable suspicion.

A reasonable suspicion requires finding out what was in the mind of the officer at the time, including the information and source of that information for the courts to then determine whether that affords reasonable grounds for the suspicion. A reasonable suspicion has been interpreted by the law to be something that is less than a reasonable belief but more than a mere possibility.

It is not enough simply if the police officer has a suspicion in his mind. Such suspicion must be based on reasonable grounds in this way.

If the reasonable suspicion test is satisfied, and as a result of the search, the officer finds a prohibited drug on you, the officer is allowed to then seize and detain it.

 

What Types of Search Can Police Conduct on You at a Music Festival?

 

Opening Your Mouth

Assuming a police officer conducts a lawful search on you without a warrant, if the officer suspects on reasonable grounds that you have a prohibited drug in your mouth or hair, the officer can require you to open your mouth for it to be searched or require you to shake or move your hair. However, the officer is not allowed to forcibly open your mouth.

Failure or refusal to open your mouth when lawfully requested to do so by a police officer has a maximum penalty of up to $550 fine.

 

Strip Search

A strip search includes a NSW police officer searching a person or something in that person’s possession that includes requiring the person to remove clothes and examine his or her body and of those clothes. It does not include searching for a person’s body cavities. Police are not allowed to search your anus.

A police officer is not allowed to strip search a child under the age of 10.

Police are allowed to strip search you if you consent before the search is carried out, but before conducting the search, the police officer must provide you with his/her evidence of being a police officer unless already in police uniform, and the officer must provide you with his/her name and place of duty.

Police can conduct a strip search on you, without your consent and without a court order or warrant, if the police officer reasonably suspects that it’s necessary for purposes of the search and the seriousness and urgency of the circumstances make the strip search necessary. This power comes from section 31 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

If a strip search is conducted, it must be done in compliance with certain very important safeguards that include preserving your privacy and dignity during the search, which include the following:

  • An officer must not search your genital area, or your breasts (if you are a female or transgender person who identifies as a female) unless the officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search,
  • The search must be conducted by a police officer of the same sex as you,
  • The search must not be carried out while you are being questioned,
  • You must be allowed to dress as soon as a search concludes,
  • The officer must conduct the least invasive kind of search practicable in the circumstances,
  • The search must be conducted in a way that gives you reasonable privacy and it must be as quick as is reasonably practicable,
  • If the officer requires you to remove clothing during the search, this must be communicated to you with the reason why it is necessary for you to remove the clothing,
  • The police must request for your co-operation,
  • As far as is reasonably practicable in the circumstances, the officer must conduct a strip search in a private area, not be conducted in the presence or view of a person who is of the opposite sex as you, and further it must not be conducted in the presence of view of a person whose presence is not necessary for purposes of the search,
  • Your parent, guardian or personal representative can, if it’s reasonably practicable in the circumstances, be present during the strip search if you have no objection to that person being present,
  • If you are at least 10 but under 18 years of age, or you have an intellectual impairment, the strip search must done in the presence of your parent or guardian, or it that is not acceptable to you, the strip search must be done in the presence of another person who is not a police officer and who is capable of representing your interests and whose presence is acceptable to you (this will not apply if a police officer suspects on reasonable grounds that delaying the search is likely to result in evidence being concealed or destroyed or if an immediate search is necessary to protect your safety,
  • Police are not allowed to touch your body when conducting a strip search, nor is it to include searching your body cavities (including your anus),

Another way to conduct a search on you, which less effective due to the practicalities for police to conduct searches at music festivals, is from the powers given under the Crimes (Forensic Procedure) Act 2000 (NSW) (‘CFPA’). At music festivals, police officers normally and usually use the powers outlined above under LEPRA which do not require police to go through the hurdles of getting a court order prior to conducting certain searches such as an intimate forensic procedure (i.e. strip search).

Under the Crimes (Forensic Procedure) Act 2000 (NSW) (‘CFPA’) there are two types of forensic procedures. The first is called an intimate forensic procedure which includes an external examination of your private parts which is effectively a strip search. The second type is called a non-intimate forensic procedure which includes examination of your body parts other than private parts, that requires touching of your body or removal of clothing.

Police can strip search you if you give informed consent. However, a police officer is not allowed to strip search a child or an incapable person without a court order under the Crimes (Forensic Procedure) Act 2000 (NSW) (‘CFPA’).

Informed consent occurs if police have first complied with the certain legal safeguards similar to the ones expressed above in addition to further legal requirements.

For example, before police can get your informed consent to a strip search they first must give you an opportunity to communicate or attempt to communicate with a lawyer of your choice in private.

If you do not consent to a strip search, police are not allowed to strip search you unless they can get a court order to do so.

A non-intimate type of search (not a strip search) also known as a general search can be carried out by the police either if you consent, or if you don’t consent, it can be carried out by police on the order of a senior police officer. Police must comply with section 17, section 18 in addition to the above outlined safeguards. Police are not allowed to do this if you are a child or an incapable person.

 

General Search

A general search involves a police officer quickly running hands over your outer clothing, to require you to remove your coat, jacket, gloves, shoes, socks, or hat (but not all of your clothes), it includes examination of anything in your possession, to pass an electronic metal detection device over or in close proximity to your outer clothing or anything removed from you.

The same safeguards concerning the preservation of your privacy and dignity during the search expressed above also apply to a general search by police.

As outlined earlier, police are not allowed to conduct a general search on you unless section 21 of LEPRA is complied with first, namely, if the officer has a reasonable suspicion that you have in your possession or control anything stolen or unlawfully obtained, a prohibited drug or plant or dangerous article in a public place.

 

What Happens if Police Unlawfully Search You?

If police fail to follow the rules to lawfully search a person, any evidence found as a consequence of the illegal search can be excluded or ‘kicked out’ of court under the discretionary exclusionary provision of section 138 of the Evidence Act.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

View all posts by Jimmy Singh