Ipsofactoj.com: International Cases [2004] Part 9 Case 12 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Everitt

- vs -

Attorney General

ELIAS CJ

BLANCHARD J

KEITH J

RICHARDSON P

THOMAS J

26 JULY 2001


Judgment

Richardson P

(with whom Elias CJ and Keith J joined)

THE PROCEEDING AND THE RESULT

  1. This appeal is against the decision of Gendall J (reported at [2000] NZAR 512 and (2000) 18 CRNZ 27) dismissing the appellant's claim against the Police arising from the stopping of the appellant, a bicycle courier, for running a red light, which led a few minutes later to his arrest and then, at the Police Station, to his being strip-searched. The Police subsequently withdrew the charge of assaulting a constable in the execution of her duty for which he had been arrested. Mr. Everitt sought Bill of Rights compensation and damages for false imprisonment in respect of what happened when he was stopped in Featherston Street, Wellington, and Bill of Rights compensation and a declaration of invalidity in respect of the strip-search at the Police Station.

  2. The length of time from when Mr. Everitt was stopped in Featherston Street until he was released on bail at the Police Station was little over an hour but, as a result, numerous issues of law and fact were canvassed at the three day hearing in the High Court and subsequently on the argument of the appeal. However, on the view we take, many of those issues need not be explored, or can be dealt with relatively shortly, and in the result we conclude that the appeal fails in respect of the events in Featherston Street but succeeds in respect of the events at the Police Station. Because there is a natural divide between the two sets of events we can deal with them in separate compartments.

    FEATHERSTON STREET

  3. Anticipating the lights changing to green, Mr. Everitt ran a red light. Two police officers, Constable Lander and Constable Hayes, sitting in a police car nearby stopped him a short distance away. It was common ground that the stopping was lawful and that on demand by Constable Lander he was required to give the statutory particulars sought. Section 66(2) of the Transport Act 1962 required Mr. Everitt by para (a) to "remain stopped for as long as is reasonably necessary for a constable or traffic officer to obtain the particulars referred to in para (b) of this subsection, or to complete the exercise of any other power conferred on a constable or traffic officer by this Act" and, by para (b), on demand by a constable or traffic officer, to "give his or her name and address and the date of birth, or such of those particulars as the constable or traffic officer may specify". Constable Lander also asked for Mr. Everitt's occupation. No issue was taken with that further request and Mr. Everitt also gave his courier number and the name of his employer.

  4. Gendall J went on to summarise what then ensued in this way: [Mr. Everitt] was in a hurry and was annoyed at being further delayed. He had previously, in the normal course of his messenger duties, been stopped, and had received traffic infringement notices or tickets on other occasions. He was familiar with such procedures. He wanted the procedures over with quickly. He told the Officer that it was "a waste of time". As do many motorists, he endeavoured to talk his way out of receiving a ticket. When this appeared unsuccessful he adopted a slightly different attitude. One Police Officer contacted the Police Communication Centre by radio, in the usual manner to confirm details and driver's licence number of the plaintiff, and there was some further short delay. During this time the plaintiff walked away from the Police car, but only some short distance. His bicycle was left behind. The female Police Officer (Constable Hayes) asked, or told, him to come back. She then asked the plaintiff to lift up his bicycle so she could check its serial number. He agreed to do so. Whilst doing this, according to the Constable, the plaintiff deliberately struck her in the chest with the front wheel of the bicycle. The male Police Constable (Constable Lander) observed this. He believed that the plaintiff's actions were deliberate. He told him that he was being arrested for assaulting a Police Officer. Both Officers were of the view that the plaintiff's actions were deliberate, but he claims that, although there was contact made between his bicycle and the female Police Officer, such was accidental. Upon being informed that he was arrested, the plaintiff was told in the usual way of his rights under the Bill of Rights. Arrangements were made to transfer the current message tasks of the plaintiff to another courier and he and his bicycle were taken to Wellington Central Police Station.

  5. Gendall J dismissed the causes of action arising from the incident on the basis that

    1. Mr. Everitt was at no point unlawfully detained or falsely imprisoned;

    2. there was no unreasonable search of Mr. Everitt physically; and

    3. the arrest was lawful given that in terms of s315(2) of the Crimes Act 1961 Constable Lander had good cause to suspect Mr. Everitt of having committed an imprisonable offence.

  6. We agree that the causes of action must fail. In cross-examination Mr. Everitt accepted that at the time Constable Hayes called out to him he was not planning to run away, his bicycle was over by the car and he would have gone back there. That happened, the Judge found, during the time his particulars were being checked by Constable Lander. To elevate that exchange to an unlawful detention or false imprisonment was, the Judge concluded, without foundation.

  7. Next, the Judge concluded that Mr. Everitt agreed to Constable Hayes' request to turn up his bicycle and expressly accepted her evidence that if Mr. Everitt had refused she would not have taken the matter further. It was not a search, but a request for an inspection (R v Dodgson (1995) 2 HRNZ 300). Police work properly involves making inquiries without there necessarily being a power to demand compliance and the brief time involved in responding to an inquiry of that kind could not sensibly be described as an unlawful detaining. In general terms, whether someone is detained within the meaning of s27 of the Bill of Rights may be determined by a "mixed objective/subjective test: does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave" (R v M [1995] 1 NZLR 242, 245). A common sense and practical approach is called for and something more than a temporary check on a citizen's liberty is required. As was said in Police v Smith & Herewini [1994] 2 NZLR 306, 316, what beyond that constitutes a sufficient restraint on liberty to come within the guarantee of s22 of the Bill of Rights against arbitrary detention, will depend on the circumstances of the case and will involve consideration of the nature, purpose, extent and duration of any constraint. There is nothing on these facts to justify characterising the conduct of the Police in Featherston Street as an arbitrary detaining of Mr. Everitt.

  8. It follows that we are not required to determine whether the duty under s66(2) of the Transport Act to remain stopped while the statutory particulars were being obtained extended to an obligation to remain stopped for the time reasonably required to verify those particulars from Police or other sources. But there is considerable force in the argument that, as a straightforward matter of statutory construction, s66(2) did not provide that authority and that the distinction drawn in Roper v Police [1984] 1 NZLR 48 and Po v Ministry of Transport [1987] 2 NZLR 757, 758 in that regard in respect of the predecessor of s66 was still applicable. It may be of some significance that the Land Transport Act 1998 s114(5) now contains express power for an enforcement officer to require a driver to remain stopped for as long as is reasonably necessary to enable the officer to establish the identity of the driver but not for longer than 15 minutes.

  9. Gendall J's third finding (para [5] above) was that the arrest of Mr. Everitt was lawful given that in terms of s315(2) of the Crimes Act 1961 Constable Lander had good cause to suspect Mr. Everitt of having committed an imprisonable offence. Constable Lander saw the front wheel of the bicycle strike Constable Hayes in the chest as Mr. Everitt turned it over and he immediately arrested Mr. Everitt. The Judge accepted Constable Lander's evidence that he had no doubt that the contact between the bicycle and Constable Hayes was deliberate. Gendall J went on to find that, Constable Lander having good cause to suspect, there was no evidence at all that pointed to bad faith or improper purpose or to some feature which impinged upon the proper exercise of the Police Constable's discretion under s315(2) to arrest Mr. Everitt.

  10. On the argument of the appeal Mr. Ellis submitted that Constable Lander had purported to arrest Mr. Everitt for assault on a police officer in the execution of her duty and did not have reasonable cause to suspect that she was so acting.

  11. Constable Lander's evidence was that he informed Mr. Everitt that "he was under arrest for assaulting a Police Officer" and in cross-examination said that he arrested Mr. Everitt "because he struck my partner with his bicycle". The cross-examination continued:

    Did you think she was acting in the course of her duty as a police officer?

    As part of her inquiries she requested that he turn his bike over, she was with me, and we had him stopped for the purpose of speaking to him about the red light so therefore it was part of our duty to stop him and speak with him about the traffic infringement.

    ....

    Why did you arrest him for assaulting a constable in the exercise of her duty rather than assault?

    In my mind he had done exactly that.

    How?

    We were there exercising our duty.

    Mr. Everitt's evidence was that "Her partner then arrested me for assaulting a constable as I was apologising for the assault". We also note that the statement of defence admitted the averment in the statement of claim that "The Plaintiff on being arrested for assaulting a Police Officer in the execution of her duty was taken to Wellington Central Police Station in the back of the Police Car driven by Constable Hayes" and, further, that Mr. Everitt was actually charged under s10 of the Summary Offences Act 1981 with assaulting a constable acting in the execution of her duty rather than under s9 with common assault.

  12. The short answer is that, assuming for present purposes that Constable Lander purported to arrest Mr. Everitt for assaulting Constable Hayes in the execution of her duty as a police officer, on the evidence and findings of Gendall J there was good cause to suspect that Constable Hayes was acting in the execution of her duty throughout those few minutes during which particulars were being obtained and inquiries were proceeding at the roadside. In terms of s315(2) a constable, here Constable Lander, may arrest without warrant any person whom he or she finds committing or whom he or she "has good cause to suspect" of having committed "any offence punishable by imprisonment". Whether or not there was good cause to suspect Mr. Everitt had committed a s10 offence is to be determined objectively by the court (see the discussion in Williams v Police [1981] 1 NZLR 108). Acting in the execution of a constable's duty is not confined to the exercise of coercive authority. It necessarily extends to making legitimate inquiries where requests which may consume some time may not be buttressed by criminal sanctions for non-co-operation. And as Talbot J said in Donnelly v Jackman [1970] 1 All ER 987, 989, where a constable tapped the appellant from behind on the shoulder with a view to speaking to him about an offence he had cause to believe the appellant might have committed and was immediately assaulted by the appellant, "[I]t is not every trivial interference with a citizen's liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties".

  13. Of course, how an officer exercises an admitted police power may indicate that he or she is going beyond its legitimate bounds so as to be no longer acting in the execution of the officer's duty (R v Thomas [1991] 3 NZLR 141, 143). On the present facts there was nothing in the conduct of the police in making inquiries after stopping Mr. Everitt under s66 to justify the conclusion that Constable Hayes had ceased acting in the execution of her duty by the time the assault occurred.

    POLICE STATION

  14. As a bicycle courier Mr. Everitt was wearing standard tight lycra bicycle shorts and skin top and he was subjected to a pat down search before being placed in the police car to go to the station. The Bill or Rights advice and the standard police caution were given following the arrest and again in the interview room at the Police Station. He spoke to a lawyer by telephone from the station. He then agreed to a video interview in which he accepted that the bicycle had struck Constable Hayes, but said that it was accidental. After that short interview Constable Lander charged Mr. Everitt with a s10 assault. He was re-advised of his Bill of Rights rights. The judgment continues:

    [22]

    Having been formally charged, the plaintiff was taken to a separate area of the Police Station known as the "cellblock area", where procedures involving the taking of fingerprints, photographs, removal of belongings and possible search occurs. This is prior to an arrested person being granted Police bail, if such occurs. They may be placed in the cells to await such a decision or they may be detained in the cells to await being brought before the District Court. The Receiving Officer in the cells was Constable Kearns. He, together with Constable Lander, undertook a search of the plaintiff. Here the evidence diverges further.

    [23]

    The plaintiff says that he was required to remove all of his clothes so as to be totally naked, having first objected to what he said was a "strip-search". He says he had his attention directed to a notice that said:

    the Police have the right to use reasonable force, if necessary to search you. For your safety, and ours, you may be strip-searched.

    [24]

    The plaintiff says he objected, saying the Police did not have to search him but that Constable Kearns said words to the effect they were "going to do it". The plaintiff says he asked to speak to a lawyer but this was declined. He said that he was required to squat totally naked and felt humiliated and distressed.

    [25]

    On the other hand, both Police Officers say that the plaintiff did not then ask to speak to a lawyer; he was agitated and uncomfortable and because Constable Kearns was not confident that the plaintiff would be bailed immediately, he elected to undertake a search. He said that, as was his invariable practice, he obtained the authority of the Watchhouse Senior Sergeant. His evidence was that the plaintiff was asked to remove all belongings from his pockets and take the satchel that he was wearing off his back. Constable Kearns' evidence was that Constable Lander searched items in the plaintiff's satchel and pockets whilst he requested him to remove his shirt. This was done and the shirt was checked for any items, and then was put back on by the plaintiff. He was asked to remove his shoes and socks which were also checked and put back on. He says the plaintiff was then asked to face the wall and lower the bicycle shorts he was wearing, because the padding in certain areas on the shorts made it difficult to see if anything had been concealed. When the plaintiff objected he was directed to the notice on the wall. Constable Kearns said that without further protest the plaintiff faced the wall, lowered the bicycle shorts and squatted momentarily so that if anything had been concealed in the folds of his body it would fall to the floor, and he was then told to pull up his shorts. That version of events is confirmed by Constable Lander.

    [26]

    Thereafter the plaintiff was fingerprinted and paper work completed. Constable Kearns went and spoke again to the Watchhouse Senior Sergeant and the decision was made that the plaintiff should be bailed rather than retained in Police custody. This occurred. Constable Kearns was adamant that no request for a lawyer was made at the time of search.

    [27]

    There was some conflict in the evidence of the Police Constables on the one hand and Mr. Everitt on the other hand as to whether or not he was "agitated" whilst at the Police Station. His demeanour during the videotape interview does not disclose any undue agitation although he could be described as animated, assertive and a little argumentative in the sense of not being submissive. He admits to some degree of verbal conflict on the street with the woman Police Constable, and that he was "standing up" for himself. Constable Lander's evidence was that the plaintiff's state of agitation "rose somewhat after he had been formally charged at the completion of the video interview". Having observed the plaintiff give evidence and in his video interview, I think that he was probably argumentative, annoyed and objecting to his arrest, and assertive verbal exchanges occurred. Likewise it is probable that he was in that sort of state when formally charged and when inside the cellblock with the two Constables, but I would not have thought it reached a high level of agitation. That sort of assessment is very much subjective.

    POWER TO SEARCH AT THE POLICE STATION

  15. Gendall J referred in passing to what he described as the limited common law power of search of an arrested person but was not required to consider its scope because the Police claimed to have acted under s57A of the Police Act 1958 and in the High Court relied on that statutory power and also pointed to the search requirements under the Penal Institutions Act 1954 applicable to the Wellington Central Police Station which had been designated as a Police Jail (although the police officers concerned had not realised that that legislation had any application to their search of Mr. Everitt). The Judge simply noted that s57A was enacted following the decision in Rudling v Police (M1498/78, Auckland Registry, judgment 18 December 1978) where Holland J held that the Police had no general right to search a person in custody at a Police Station, and the right was limited to cases where there was reason to believe that the person had on him (or her) either weapons or evidence of the offence with which that person was charged. See also in this court R v Jeffries [1994] 1 NZLR 290, 300.

  16. Section 57A(1), (4) and (5) provide:

    (1)

    Subject to subsection (4) of this section, where any person (in this section referred to as the detainee) is taken into lawful custody and is to be locked up in Police custody, a member of the Police, or any searcher employed for the purpose under section 57B, may conduct a search of that person and take from him all money and all or any property found on him or in his possession, and may use or cause to be used such reasonable force as may be necessary to conduct that search or take any money or property.

    ....

    (4)

     

    No search shall be conducted under this section unless the detainee is at a police station, or in any other premises, or in any vehicle, being used for the time being for Police purposes.

    (5)

    Nothing in this section shall limit or affect the right at common law of a constable to search any person upon that person’s arrest.

  17. Separately, s21K(5) of the Penal Institutions Act provides:

    (5)

    Subject to section 21G of this Act, every inmate shall,—

    (a)

    On first being admitted to an institution in respect of a particular offence or matter; and

    (b)

    Immediately before being transferred to another institution; and

    (c)

    On being received in an institution on transfer from another institution,—

    be required to undergo a strip search conducted by an officer.

  18. By s2 "inmate" and "penal institutions" are respectively defined as meaning:

    Inmate means any person for the time being in the legal custody of the Superintendent of any penal institution

    Penal institution or institution means any prison, corrective training institution, or police jail established under this Act:

  19. Pursuant to s4, the Penal Institutions (Police Jail) Notice 1992 (SR1992/242) declared Wellington Central Police Station to be a Police Jail and in terms of s6(5) a member of the Police was appointed by the Commissioner of Police to be the Superintendent of the jail. Section 16 goes on to provide that the superintendent of an institution shall have "the legal custody of every person lawfully detained in the institution". Section 12 concerns, as the section heading states, Detention of inmates. By s12(1) any person sentenced to imprisonment for one month or less may be detained in a police jail for the period or any part of that period; and by s12(2) "a person may be held in custody on remand in — (a) Any police jail".

  20. The argument for the Police in the High Court was that s57A of the Police Act authorised the search undertaken in the present case and, further, that despite that Act such a search was mandatory under s21K(5) of the Penal Institutions Act. Gendall J concluded that he did not have to decide which Act applied because:

    1. the prerequisite of "about to be locked up" is the same and is crucial;

    2. a strip search under the Penal Institutions Act may be only a removing of a shirt, or of a hat, or opening a vest; that the extent to which a search goes, by officers in the exercise of their duty, is still to be governed by the test of "reasonableness"; and that the requirement of reasonableness of the extent of the search applies whether the officers act under either provision; and

    3. the Police said that they were acting under their s57A powers and the lawfulness of their actions, and whether or not such were reasonable, fell to be judged in that context.

    GENDALL J'S CONCLUSION

  21. As to the first point, the Judge reasoned there will obviously be situations where persons arrested and taken to a Police Station are not going to be locked up. They may be interviewed and then released. They may be charged and released. However, if it is intended that they are to be detained and subsequently locked up for any period of time, then the power of search under s57A arises. It must be a question of fact as to whether a person is "to be locked up" and this must depend upon an individual decision made in this particular case, but such decision must have been made reasonably, and not for an improper purpose. Once there is a decision reasonably made - that is without improper purpose or malice - that the person in Police custody is to be transferred to the Watchhouse Keeper and confined in the cellblock or secure part of the Police jail, that is a decision "that the person is about to be locked up".

  22. The Judge took the view that Mr. Everitt was in fact locked up in the secure cellblock environment. However, he accepted that because all searching took place within the cellblock it did not inevitably follow that those being searched were to be locked up within the meaning of s57A. If the searching officer has a genuine honest belief that a prisoner in the officer's custody is to be locked up in Police custody, then he or she may conduct a search provided the manner of search is reasonable.

  23. The Judge accepted Constable Kearns' evidence as summarised earlier in para [25] (para [14] above) that, because Constable Kearns was not confident that Mr. Everitt would be bailed immediately, he elected to undertake a search and that, as was his invariable practice, he obtained the authority of the Watchhouse Senior Sergeant to conduct the search. The Judge accepted Constable Kearns' evidence that he was not to know in advance when a bail decision would be made, or if it would be favourable to Mr. Everitt.

  24. Referring to Police general instructions and guidelines the Judge held that there must be a conscious exercise of the Police Officer's discretion to search or not according to the circumstances then existing. He accepted the Police evidence that there was an individual assessment and proper exercise of the searching officer's discretion in this case. He saw the requirement of reasonableness in the undertaking of a search under s57A or s21K(5) as ensuring the upholding of the right of a citizen to be secure against unreasonable search under s21 of the Bill of Rights, and the answer to that question as depending to a large extent upon whether the type of search decided on was reasonable. He concluded that the type and manner of search that occurred, in the circumstances of this case, was not unreasonable and accordingly did not infringe the protection given to the plaintiff by s21 of the Bill of Rights.

    PENAL INSTITUTIONS ACT

  25. It is clear from the provisions of the Penal Institutions Act set out earlier (at paras [17]-[20]) that, although Wellington Central Police Station had been declared a police jail, the search requirements of s21K(5) could have no application to Mr. Everitt's position at the time he was searched. Section 12, headed "Detention of inmates", provides in subs (1)(d) that a person sentenced to imprisonment for one month or less may be detained in a police jail for the whole or any part of that period, and in subs (2) that a person may be held in custody on remand in any police jail. Section 16, headed "Legal custody of inmates", goes on to provide that an institution shall have the legal custody of "every person lawfully detained in the institution". Clearly, the police jail provisions can apply only to persons who have been sentenced to short terms of imprisonment or have been remanded in custody. That is recognised in the Police General Instructions issued under s30 of the Police Act 1958, P112(1) stating that they are "authorised to hold remand and sentenced prisoners".

  26. Mr. Everitt was in neither category. The search powers under the Penal Institutions Act had no application in his situation.

    POLICE ACT, SECTION 57A

  27. The primary issues are whether, before he was searched, it had been decided that Mr. Everitt was to be locked up and whether, if so, the decision to strip search was a proper exercise of the discretion under the section. The crucial evidence is that of Constable Kearns who claimed to have made those decisions and, while respecting the advantage the trial Judge had of assessing his evidence, it may be tested in the usual way by reference to other evidence in point. For reasons we shall give we are satisfied that the circumstances giving rise to the exercise of the search power were not present and Constable Kearns must be taken to have misdirected himself when assuming that Mr. Everitt was to be locked up, which error then infected his subsequent decision to search Mr. Everitt; that decision in its own terms would, in any event, have been unreasonable.

  28. Constable Kearns had been a member of the Police for a year and had been working in the watchhouse for two months when the incident occurred on 20 January 1998. The trial in the High Court was in March 2000. He had made no notebook entries or job sheets at the time but had completed a very material document in standard form which included under various heads what was described as "Watchhouse Keeper's Evaluation of Condition of Person in Custody", to which we shall need to refer in some detail.

  29. In his brief of evidence he said that he received Mr. Everitt from Constable Lander, Mr. Everitt having been charged with assaulting a police constable. The receiving area was a small room measuring about 6 square metres. It was a private area and "the persons in that area are those being received or bailed. My section runs a policy of having only one prisoner in that area at a time." We pause to add that it was a totally internal area with doorways leading to the jailer's office and to one of the main cellblock corridors.

  30. Constable Lander and Constable Kearns searched Mr. Everitt and, Constable Kearns' brief continued, "He was agitated and uncomfortable. I was not confident that he would be bailed immediately, and I was conscious that first time arrestees pose a higher suicide risk than other prisoners. I was concerned that if he had any dangerous implements about his person he may have posed a danger either to himself or to us." Prior to undertaking a search of that kind he had always obtained the authority of the watchhouse senior sergeant. He said that Mr. Everitt "protested at being asked to lower his shorts. I asked him to look at a notice which is attached to the wall which says 'for your safety, and ours, you may be strip searched'".

  31. The brief continued:

    After the paperwork was completed, the plaintiff was then taken to the fingerprint room and processed. I spoke to the senior sergeant again. He agreed to the plaintiff being bailed, and the plaintiff was then released.

    ....

    Prisoners are searched even where it is intended that they be bailed quickly. A prisoner is not normally bailed until the watchhouse senior has given his approval, and sometimes a delay occurs in this process, especially if the watchhouse senior is busy or there is a backlog of prisoners.

  32. In his oral evidence on the "to be locked up" issue, the material evidence reads:

    When did you think this prisoner was going to be bailed?

    The decision to ultimately bail someone rests with the watchhouse senior sergeant.

    He is not giving evidence?

    OK. It does rest with the watchhouse senior sergeant. A constable cannot bail someone without consulting them first. At any time a person may have to come in and be processed immediately.

    Let's deal with this person, when did you think this person was going to be bailed?

    You don't know who's going to come in, you never know with any prisoner at what point he would be bailed.

    There was no backlog?

    Not at the time.

    No violent prisoners who came in?

    I don't look into the future. I don't know what is going to turn up.

    When he came in you thought he was going to be bailed when you finished this process?

    I hoped so. ...

    When someone comes into the cell block you can never tell when they are going to get bail. It may be because other matters may be pressing but you can't bail them.

  33. On the strip search issue he said, in essence:

    I had never met the plaintiff before that time, my concern was I didn't know whether he was a drug user, alcohol user, solvent user. I had never dealt with him. He was agitated at the time and people who come to the cell area - the plaintiff did not have anything in his trousers but people who come into the cell area to be searched or processed and they are the most unlikely people to have anything.

    You had no reason or evidence to expect this individual had anything on him at all, drug, weapon, etc this particular individual you searched him because it was policy?

    No that's incorrect. There's a procedural thing we go through - his agitation was a part of it. I searched him for his safety, my safety, Constable Lander's safety.

  34. He said he had no reason to believe Mr. Everitt was drunk or a psychiatric emergency and did not know his history or anything about him and in response to the Judge's final question he said "With everything police do there is discretion":

    What factors were you - did you have in your mind in the exercise of your discretion?

    His agitation, first time offender, and that's pretty much why.

    Did you specifically turn your mind to the question of discretion?

    Always.

  35. The document completed at that time, largely by Constable Kearns, and described as "Loose Leaf Charge Sheet" is annexed to the judgment. Constable Kearns told the court that the various answers which he had recorded in the box headed "Watchhouse Keeper's Evaluation of Condition of Person in Custody" were Mr. Everitt's answers to those questions and in that sense a self-evaluation by Mr. Everitt, not a watchhouse keeper's evaluation by Constable Kearns. In cross-examination he explained it in this way:

    You now lead us to believe on the charge sheet your evaluation, watchhouse keeper's evaluation - tab 8 - is questions that you put to the prisoner, a self evaluation, not a watchhouse keeper's evaluation?

    That's correct. If the prisoner says no or no comment we circle not applicable if there's anything further from that that we have a real fear the prisoner may do something to themself or others we move on to the prisoner assessment form.

    At no time you were concerned he was agitated enough to ring the word agitated?

    He was agitated enough for me to be concerned about him.

    Answer the question?

    I didn't ring around that because he didn't give me that as an answer.

    Subsequently?

    If anything had have happened subsequent to the charge sheet being filled out it would have been a prisoner assessment form.

  36. We should add that there was no evidence, apart from his reference in that passage to "we circle", to support a submission that there was a general practice in the Police to interpret and answer the questions in that way. On the contrary, when Senior Sergeant McLeod who was the last witness called and whose evidence immediately followed Constable Kearns, was asked what he would do his answer was that he would ring, "Agitated", or other expression "whatever I thought that to be".

    WHETHER MR. EVERITT WAS TO BE LOCKED UP

  37. In terms of s57A(1) it is only "where any person .... is taken into lawful custody and is to be locked up in Police custody" that a member of the Police "may conduct a search of that person". Consideration of the exercise of the search power simply does not arise unless and until it has been decided that the person concerned is to be locked up in Police custody.

  38. In context "locked up" has its standard meaning of being confined behind a closed and locked door. Those strong words reflect both a change in status from simply being in Police custody and a significant further curtailment of individual freedom. And the expression "to be locked up" points to what will happen for an indefinite period but beginning at a point of time which has not yet arrived. Those words were added by the Statutes Revision Committee as a threshold limitation on the power of search provided for in the Police Amendment Bill and it is not surprising that the Minister, moving the second reading of the Bill ((1979) 427 NZPD 4354) said: As is made clear by the Statutes Revision Committee's amendment to this subsection, the power can be exercised only in respect of a prisoner who is to be locked up in police custody. It does not apply, for instance, when a person is merely detained for a short period, and is not going to be placed in the cells.

  39. While obviously not intended as a substitute for the statutory expression, the Minister's example brings out two important points. The first is that detaining for a short period, for example while necessary formalities are completed and consideration is given to release on bail, is not within the provision. The second is that locking up means confining the person concerned behind a closed and locked door, as typically in a cell capable of accommodating one or more persons or perhaps in a communal locked up holding area. It cannot sensibly be extended to the whole Police Station, apart from the public reception area and inquiry counter, on the footing that one cannot leave without a swipe card. "To be locked up" requires further confining within a separate part of the Police Station whose function is to hold and detain people securely.

  40. Constable Lander charged Mr. Everitt after taking his video statement. He then took him to the Watchhouse Keeper who received him, Constable Kearns said, in a small private room "for those being received or bailed". The two officers furnished the answers provided for on the Loose Leaf Charge Sheet. That provided a necessary step in recording the charge against Mr. Everitt. The function of that room in that regard was to facilitate processing, which would include bailing a person in Mr. Everitt's position if that was the decision that was made. The mere fact that one could not leave through the door to the jailer's office without a swipe card could not change its character and turn the room into a lock-up. It was aptly described in the Wellington Central Police Station Watchhouse and Cellblock Induction Booklet and in Inspector Allan's evidence as the charge room.

  41. It follows that Mr. Everitt was not locked up in the cellblock as Gendall J surmised (paras [21] and [22] above); and to complete the picture we note Constable Kearns' description of "the cellblock area": The whole area, it has showers, day rooms for male and female prisoners, cell areas for females, juveniles, males, holding cells, receiving areas, fingerprint room, and an area at the back of that where a Constable can use a computer, and an area where a person may speak to a lawyer in a concealed room. Its quite a large area.

  42. Clearly the police officer's decision that the person concerned "is to be locked up" must involve a genuine assessment of the present circumstances and all relevant considerations and values, not least the liberty of the subject. That decision cannot be reached so as to provide a justification for going on to conduct a statutory search or as a matter of administrative convenience.

  43. The crucial question is whether the person concerned may be released on bail following the documenting of the charge and incidental processing or is to be locked up in police custody. Both at that point, and subsequently if the decision is that the person is to be locked up and so consideration of the exercise of the statutory power of search is then the issue, there is an analogy with the decision to arrest without warrant where the condition precedent to good cause to suspect is made out. In Neilsen v Attorney-General (CA 101/00, judgment 3 May 2001) the court reviewed in some detail the exercise of Police powers under s315 of the Crimes Act 1961 and at para [37] emphasised that "to fulfil the statutory purposes underlying s315, the officer concerned must give appropriate consideration to the values of individual liberty and public order which are necessarily involved in the decision". And earlier, in Auckland City Council v Dixon [1985] 2 NZLR 489, 492 the court said that powers of arrest without warrant should never be exercised "automatically or without substantial reason".

  44. While it may be inferred from his evidence that Constable Kearns considered that Mr. Everitt was to be locked up in Police custody, there is nothing in the evidence to support a conclusion that he addressed his mind to the relevant considerations and, had he done so, he could not have reached such a decision. The Loose Leaf Charge Sheet records "Yes" to the question, "Bailable". Constable Lander had been with Mr. Everitt for the previous half hour. He had said that Mr. Everitt was bailable and he had signed the charge sheet. Significantly, as at least indicating his approach, he said in his brief: 30. It is common for prisoners to be searched even where it is intended that they be processed and bailed immediately. Prisoners are not normally bailed before the watchhouse Senior Sergeant has been consulted. If there is a delay in approval from the Senior Sergeant, for whatever reason, a prisoner may need to be placed in a cell until the approval has been given. Sometimes there are problems with identification, and sometimes there is a backlog of prisoners waiting to be processed. Sometimes the Senior Sergeant disagrees with the decision to grant Police bail and the prisoner needs to be kept in custody until he or she can be taken to Court. It can never be taken for granted that a person will be bailed immediately.

  45. Constable Kearns' brief to similar effect began: "Persons are searched even where it is intended that they be bailed quickly". In this case there was no backlog of persons. Indeed, there was no one else for processing by Constable Kearns. There is no evidence why a bail decision could not have been made promptly. Once the search and processing were completed Constable Kearns spoke to the senior sergeant who agreed to Mr. Everitt being bailed and he was then released. He was not locked up and the explanation given for an earlier decision that he was to be locked up lacks any credence.

  46. We are driven to the conclusion that Constable Kearns must have had far too narrow a view of the statutory requirement and must be taken to have misunderstood the requirements of s57A when considering whether Mr. Everitt was to be locked up.

  47. Before we leave this branch of the case we should refer to Mr. Boldt's written submissions. He stated that Police had taken it for granted that s57A allows the automatic search of all persons brought into the cellblock and went on to submit

    1. that Police bail could only be considered when processing, including search, was complete; and

    2. that Mr. Everitt was locked up and that it was known he would continue to be locked up unless and until

      1. his processing was complete and

      2. it was deemed prudent that he be released on bail.

      In relation to the first point, Senior Sergeant McLeod gave evidence of his experience in practice. He said that over the previous nine months he had received several hundred persons into Police custody and had required full or partial strip searches of about two-thirds of those persons and had ordered less thorough searches of the rest. Inspector Allan's understanding and experience was that every person was searched regardless of whether they were being bailed or not. He said that, even when a person was granted immediate or fairly quick bail, they were still in the cellblock and there was still a need to protect the person from himself or herself, to protect police officers who were in very close quarters and to prevent damage to the facility. And Inspector Allan explained that in some cases, for example where the alleged offending was relatively minor and the person was both fully co-operative and likely to be bailed immediately, a pat down search would probably be sufficient but if the person concerned was showing signs of agitation during processing it would be prudent for a strip search to be undertaken.

  48. For the reasons we have given we are satisfied that, if that assumption was made by the Police, it was unjustified and we reject the submissions advanced by Mr. Boldt and add, as to bail, that the General Instructions made under s30 which provide guidance to Police Officers state (P114):

    (1)

    Police bail may only be refused where there are statutory grounds or other justifiable reasons for doing so.

    (2)

    Where appropriate, police bail may be granted at the discretion of the O/C : Watchhouse without the prisoner being placed in the cells.

    See also R v Bryant [2001] 2 NZLR 319.

    WHETHER REASONABLE TO UNDERTAKE THE PARTICULAR SEARCH

  49. Constable Kearns went on to consider the exercise of the statutory search power under s57A not appreciating that the condition precedent, namely that Mr. Everitt was to be locked up in Police custody, had not been satisfied. His error in that regard necessarily infected the subsequent decision to strip search Mr. Everitt.

  50. We add, while not material to our ultimate decision, that on any reasonable reading of the Loose Leaf Charge Sheet, the block headed "Watchhouse Keeper's Evaluation of Condition of Person in Custody", required Constable Kearns, as Watchhouse Keeper, to make his own evaluation of the condition of Mr. Everitt. It asks "Is the person [i.e. Mr. Everitt]: Under the influence of (drugs, etc), Showing signs of being (withdrawn, agitated, etc), Showing signs of or previously made threats of (suicide or self-injury)." None of the positives was circled by Constable Kearns. Rather, in each case he circled the remaining box, "NA". The next set of questions as to injury, illness and signs of pain are all answered in the negative. Importantly, too, he answered "No" in the Yes/No alternative answers to the questions "Are there health or other warning flags or signs that may indicate the person is at risk" and "Do you consider that the person needs to be further assessed to determine their at risk status". Had he answered "Yes" to that last question then, as the form stated, he was required to use a personal management assessment form for full assessment. On his oral evidence (para [35] above), had he been concerned about Mr. Everitt's at risk status he could have been expected to have completed the assessment form.

  51. The explanation for the striking differences between what the charge sheet required from the Watchhouse Keeper completing his own evaluation of Mr. Everitt's condition and Constable Kearns' evidence that he was actually recording Mr. Everitt's own answers, may well be this - namely, that relying on his recollection that Mr. Everitt was agitated and his awareness of unmeasurable but real risks to the safety of persons in custody in that situation and to the Police, when faced two years after the event with the charge sheet he had completed, he concluded he must have treated and did treat the form as providing for Mr. Everitt's self-evaluation of risk factors.

  52. However, for the reasons given earlier we are satisfied that Constable Kearns was not entitled to conclude that Mr. Everitt was about to be locked up. In consequence the exercise of the search power was fatally flawed and the strip search which ensued was an unreasonable search within s21 of the Bill of Rights.

    COMMON LAW SEARCH

  53. Mr. Butler for the Police sought to argue that, if invalid under s57A, the search was a lawful exercise of the common law power of search incident to arrest.

  54. It is far too late to raise this argument in defence of the conduct of the Police in this case. Constable Kearns claimed he was acting under the statutory powers. He did not purport to invoke any common law search power. There was no evidence directed to that and no opportunity for cross-examination as to the incidence, requirements, scope and duration of the common law power. It was not pleaded and was not raised as a possible issue at trial. On the limited argument we heard, the conditions attaching to the power and its relationship to s57A may raise difficult questions which should be left for consideration on a proper factual foundation and following full argument and determination in the trial court.

  55. Finally, we do not find it necessary to determine numerous other legal and factual questions which were canvassed in argument, including access to a lawyer before Mr. Everitt was strip-searched, which was not pleaded as bearing on the pleaded breaches of s21 and s23(5) of the Bill of Rights for which Bill of Rights compensation was sought.

    RESULT

  56. The court being unanimous as to the result the appeal is allowed and the orders made in the High Court are quashed. The appellant is entitled to a declaration that the strip-search at the Police Station breached s21 of the Bill of Rights. The assessment of the Bill of Rights compensation is remitted to the High Court. Costs on the appeal are fixed at $5,000 together with all reasonable disbursements as fixed, if necessary, by the Registrar. All questions of costs in the High Court are to be determined by the High Court.

    Thomas J

    INTRODUCTION

  57. I have had the opportunity to read the draft judgments of Richardson P and which I understand is to become the principal judgment. I have also read the draft judgment of Blanchard J.

  58. I agree that the appeal should be allowed. On the facts of this case, as traversed in the President’s judgment, it was unreasonable for the Police to carry out a strip search of Mr. Everitt.

    A STRIP SEARCH

  59. First, it may be of assistance to describe a strip search. Although there may be rare cases where an arrested person’s clothes are confiscated for forensic or evidentiary purposes, strip searching generally follows a less dramatic procedure. Police officers require arrested persons to remove and replace each item of clothing in stages. Removal of the clothing is done by the detainee him or herself, and unnecessary physical contact is avoided. The search must be carried out by two officers of the same sex as the detainee. The individual items of clothing are inspected as they are removed to ensure that they do not conceal any weapons, drugs or other articles which may be harmful to the arrested person who is to be confined in a cell or used to cause injury to the police officers during the course of processing that person. An arrested person is not required to be naked at any point. To check trousers and underpants the police officers ordinarily ask the detainee to lower these items of clothing to the floor while facing the wall or standing in a corner. He or she is asked to squat down to ensure that any material concealed either in the undergarments or the folds of the skin are disclosed.

  60. Notwithstanding the controlled procedure which is adopted, I would not wish to diminish the invasive and degrading impact of a strip search. It is invasive in that it penetrates the marrow of the privacy to which all citizens have a right and it is degrading in that it demeans the dignity to which all human beings are entitled. No strip search can be undertaken without due consideration and just cause.

  61. In certain circumstances, however, strip searches are necessary. It is recognised that a cellblock is an inherently dangerous place. Many persons arrested react violently or harbour suppressed violence. Many persons are so shocked at having been arrested that they resort to self-harm. Others use any article available to attack the police officers in charge of them or to vandalise their cell or other parts of the cellblock area. Police have become acutely aware of the need to guard prisoners against self-harm and have been criticised more than once by the Police Complaints Authority for failing to take adequate precautions to prevent attempted suicides. Research carried out by a senior police officer highlighted the risks prisoners pose to themselves. Among other things, the research revealed that of twelve prisoners who attempted suicide, five were not assessed as potentially suicidal before their attempts; the type of offence for which the prisoner is in custody does not provide a reliable indication as to who is likely to attempt suicide, many who had attempted suicide having been arrested on relatively minor charges; and a number of attempts involved sharp or sharpened instruments which had escaped detection at the time of the search.

  62. The fact that prisoners are more than usually likely to attempt suicide or self-injury has been noted by the House of Lords in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. Lord Hoffman quoted (at 366) an Instruction to Governors which said: "The care of prisoners who are at risk of suicide and self-harm is one of the Prison Service’s most vital tasks". Quoting from an official Report, the learned Law Lord then observed: "The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future. Between 1972 and 1982, 45 per cent of suicides in prisons were remand prisoners, although they made up only 10-15 per cent of the prison population".

  63. Following the judgment of the Court below, the Commissioner of Police responsibly promulgated new General Instructions, which acknowledge that strip searches involve significant disruption to a person’s privacy and dignity. While all persons who are arrested are searched, an evaluation is required in each case as to the extent and nature of the search to be conducted. Consequently, a strip search must be justified in the circumstances of the particular case and police officers must not carry out strip searches as a matter of customary practice or routine. A full strip search can only be carried out with the authority of a non-commissioned officer. The constables carrying out a strip search must then record a brief explanation as to the justification for the search. In determining the question of justification, it is recognised that it is the responsibility of the Police to obtain relevant evidence where that evidence is available, and to protect the detainee from self-harm, and to secure other persons in custody and the police officers involved in processing the detainee from any injury which he or she might inflict.

  64. Notwithstanding that these Instructions were not promulgated at the time the search of Mr. Everitt was undertaken, I consider that they indicate a responsible approach. In this particular case, however, the strip search of Mr. Everitt could not be justified. It is for that reason that I regard it as being unreasonable and, therefore, an unlawful search.

    A "MISUNDERSTANDING"?

  65. I am unwilling, however, to endorse the view that Constable Kearns misunderstood the requirements of s 57A of the Police Act 1958. The constable did not know whether Mr. Everitt would receive police bail immediately. As the Judge at first instance found (at para [87]), it was not a case where the constable felt able to take Mr. Everitt directly to the Senior Sergeant responsible for determining whether bail would be granted. Rather, he received Mr. Everitt from Constable Lander for the purpose of being locked up pending the question of bail being considered and determined. In his evidence, Constable Kearns described some of the situations which could delay consideration of the question whether a detainee should be granted bail with the result that he or she would be locked up in the interim. I therefore accept the Judge’s finding that Constable Kearns was not to know in advance when such a decision would be made or if, once made, the decision would be favourable to Mr. Everitt.

  66. It is important to emphasise, and I do not understand the other members of the Court to differ on this point, that the decision an arrested person is to be locked up can be made prior to him or her being processed, including making a decision whether or not they will be granted police bail. If the arrested person is eventually given police bail they may or may not have been locked up pending their release, but the decision that the detainee is to be "locked up in Police custody" will have been made.

  67. Nothing in s 57A suggests that the decision an arrested person is to be locked up must be made immediately or shortly before he or she is actually locked up. It may be made in advance of processing the detainee. Indeed, it is a necessary implication of subs (4) that the decision may be made in a police vehicle following the arrest of the person. It may well be that, in some circumstances, the decision can be made, and in reality is made, at the time of arrest. As already indicated, such a decision does not deprive the accused person of the opportunity of being released on police bail.

  68. To hold otherwise, that is, that the decision to lock the arrested person up cannot be made in advance of processing him or her, would be to ignore the practicalities of arresting and processing persons suspected of committing crime. A person may need to be searched prior to processing for both his or her own safety and the safety of the police officers carrying out that task. The evidence reveals that the ability of arrested persons to conceal articles in their clothing or on their body and the creativity with which they can devise means to do so is startling. Such items may be, and are, from time to time used to attack the officers. Further, a decision as to whether police bail is to be granted may be delayed for any number of sound reasons, including the fact that the Police may be obtaining the requisite information to make a proper determination of that question. The person will need to be locked up pending that decision. A violent offender may be brought into the Police Station while another detainee is being processed necessitating the interruption of that processing and the confinement of the detainee in the meantime. Then, of course, the physical task of carrying out the processing may be prolonged as, for example, is likely to be the case where a number of persons are arrested at the same time and some of those arrested will need to be locked up pending an opportunity to process them.

  69. I am therefore confirmed in my view that Constable Kearns had accepted that Mr. Everitt would be locked up if, having been processed, he was not given police bail immediately. Nor could he be expected to anticipate the Senior Sergeant’s decision. Indeed, if a decision to grant bail was not made on the spot (and, again, Constable Kearns could not know or anticipate that this would be the case), Mr. Everitt would have in fact been locked up. The constable’s error was, not in misunderstanding the law, but in deciding that a strip search, as distinct from a less invasive and obtrusive form of search, was justified in the circumstances of this case.

    SECTION 57A AND THE COMMON LAW POWER OF SEARCH

  70. The application of s 57A is made more difficult by virtue of the fact that the statutory provision must be reconciled with the common law power of search. Blanchard J is correct to draw attention to this aspect. I agree with the learned Judge that the section does not replace the common law power of search until such time as the decision has been made that the arrested person is to be locked up. Section 57A applies and excludes the common law power of search at that point. But, on this basis, the common law power can extend past the time when the arrested person is taken into police custody and brought into the Police Station, that is, up to the time a decision is made to lock the arrested person up. Obviously, with the common law power of search and the statutory provision both applying within the precincts of the Police Station the prospect of doubt and, possibly, confusion as to which power is being exercised must exist, especially in the case of busy constables processing arrested persons manifesting a range of different reactions to their arrest.

  71. In this context, it is helpful to briefly refer to Parliament’s purpose in enacting s 57A. Traditionally, the courts have been reluctant to recognise a general common law right for the Police to search an arrested person. This reluctance is evident in the numerous dicta quoted by Holland J in Rudling v Police (High Court, Auckland M1498/78, 18 December 1978). The right to search an arrested person was eventually acknowledged where it is necessary to obtain evidence of a crime or to ensure that the person does not have a weapon or the means of injuring him or herself, or other persons, while in custody. But the notion of a general rule was steadfastly rejected. Much would depend on the circumstances of the case.

  72. Consequently, Holland J correctly concluded in Rudling v Police that there was no general right at common law to search on arrest. The test, he held (at 9), must be whether the arrested person gives reason to suspect that he might have on him either evidence relating to the crime in respect of which he has been arrested, or other crimes, or something which could cause injury to himself or the persons or property of others while under arrest.

  73. Parliament enacted s 57A in response to this decision. The section was clearly intended to provide the Police with a general right to search every person to be locked up while in Police custody. The section provided the "general rule" which had been perceived to be lacking in the common law. Once the decision to lock up the arrested person had been made, the common law requirements of reason to suspect that the arrested person might have evidence on his or her person, or have something concealed which could cause injury to them or others while in custody, was no longer required. Further, the search which was authorised was not expressly circumscribed in any way. The search could be a pat search at one end of the range or a strip search at the other. No requirement of reasonableness as to the kind of search which could be carried out is made explicit in the section. If such a requirement is to apply, it would need to be implied by the Courts.

  74. The need for such an implication, however, has been put beyond doubt with the enactment of the Bill of Rights. An interpretation which would exclude the requirement of reasonableness is not now open to the Courts. By virtue of s 21, everyone has the right to be secure against unreasonable search. Section 57A must be given a meaning which is consistent with that right. Consequently, the search undertaken under s 57A must be a reasonable search. Not only must the arrested person be a person to be locked up as expressly provided, but the kind of search to be undertaken must be reasonable in all the circumstances of the particular case.

    CONCLUSION

  75. While I can readily accept, therefore, that a valid decision had been made to lock Mr. Everitt up before he was processed or the question of granting him police bail had been considered, I cannot accept that the circumstances justified a strip search. Essentially, I adopt, and do not need to repeat, the reasons summarised by Blanchard J in para [86] of his judgment. To subject Mr. Everitt to such an invasive and abasing search, notwithstanding that he was a person to be locked up in terms of s 57A, was undoubtedly a breach of his right to be secure from an unreasonable search.

  76. I should add that, providing the decision as to the extent and nature of the search to be undertaken is determined in each case having regard to the circumstances, there is no reason why the decision should not be made pursuant to policy guidelines or directions. Mention has already been made, for example, of the relatively high risk of suicide or attempted suicide among arrested persons and the difficulty of detecting in advance whether a particular prisoner is prone to that reaction. A policy indicating a cautious approach which accepts the need for a strip search where that risk is a possibility could not be judicially condemned. The safety of arrested persons, other prisoners and police officers must be placed first.

    Blanchard J

  77. Save as indicated in this judgment, I agree with the judgment of the President. I agree with the result stated therein.

    FEATHERSTON STREET

  78. I incline, however, to the view that it was implicit in s66(2) of the Transport Act 1962 that a person who had furnished particulars could be required to remain with his or her vehicle for a short period – no more than a few minutes – whilst the particulars were verified. I respectfully doubt the conclusion reached in Roper v Police [1984] 1 NZLR 48 that ss66 and 68B could not be read together. In this connection reference can be made to Howden v Ministry of Transport [1987] 2 NZLR 747. The existence of the power is now put beyond doubt, so far as concerns particulars of identity but not particulars of ownership, by s114(5) of the Land Transport Act 1998, which came into force after the events with which this case is concerned.

  79. Mr. Everitt accepted when he gave evidence that he was not intending to leave the scene. Clearly he did not attempt to leave with his bicycle before the point at which he was arrested. He was going to have to retrieve the bicycle. He was not going to leave it behind and walk away. When he did go to the bicycle, as directed by Constable Hayes, he was doing no more than he had always intended to do. She then asked him to turn the bicycle over for inspection. She was entitled to make that request, which was in accordance with good police practice. Equally, Mr. Everitt was entitled to decline to cooperate in having his bicycle inspected. There was no evidence from him that he did not realise this. If he had refused to co-operate and the constable had then handled the bicycle, there might have been, for a brief moment, an unlawful search. But that did not occur. Mr. Everitt elected to turn the bicycle over but while doing so, and before any inspection could occur, either deliberately or accidentally struck the constable with the bicycle. He was then arrested.

  80. On any realistic view of what occurred, until the arrest of the appellant there was nothing more than the most minimal restraint on his liberties. He cannot sensibly be taken to have been unreasonably detained or falsely imprisoned.

  81. What Constable Hayes did in relation to investigating the bicycle did not go beyond the scope of her duties. When she was struck by the bicycle, there was good cause for Constable Lander to suspect that she had been assaulted in the course of her duties. The arrest was therefore within s315(2) of the Crimes Act 1961.

    AT THE POLICE STATION

  82. The language of s57A of the Police Act 1958 ("is to be locked up") and the Parliamentary debates on the legislation do not support the argument that the police can rely upon that section when no decision has been made concerning whether the detainee will be locked up. I too reject the argument that Mr. Everitt had already been "locked up" because the Wellington Watchhouse as a whole is a lockup. I reject also the Crown’s argument based on the Penal Institutions Act 1954. Sections 12 and 16 make it clear that an inmate is someone sentenced or remanded by a Court.

  83. In my view there was an available argument, had the Crown chosen to make it in the High Court, that the common law power to search an arrested person as an incident of arrest continued to be available to the police pending the making of a decision on whether Mr. Everitt was to be locked up (see s57A(5)).

  84. It is long established that the common law power of search of an arrested person, where good reason exists to do so in the particular circumstances, continues past the point at which the arrested person has been brought to a police station (Leigh v Cole (1853) 6 Cox CC 329; see also R v Stillman (1997) 113 CCC (3d) 321). This was confirmed by the judgment of Cooke P, for a Bench of seven, in R v N (CA395/92, judgment 25 June 1993) where it was said that the search of the accused at the police station was a lawful incident of the arrest and taking into custody. It does not appear that before the search in that case, and therefore prior to the discovery of cannabis bullets in the accused’s underpants, any decision had been taken to lock him up. The reference made by Cooke P to s57A must therefore be taken to be to the express preservation of the common law power.

  85. I concede that this question is not without its difficulties. Legislative clarification would be helpful.

  86. But the strip-searching of Mr. Everitt in the circumstances of this case could not have been justified on the basis of a common law power. There were no reasonable safety concerns justifying a strip-search, which, as the Ontario Court of Appeal observed in R v Flintoff (1998) 126 CCC (3d) 321, is one of the most extreme exercises of police power. Mr. Everitt had already been subjected to a pat down search. He had no criminal record or psychiatric history which could have given cause for concern. Whilst he was angry, his agitation was not such as to cause Constable Kearns to mention it when filling in the Charge Sheet. Mr. Everitt had been wearing his cycling clothes for work purposes, as the police knew. That made it all the more unlikely that he was concealing a weapon in his clothing. He was unlikely to present a danger to himself or others during a short period of processing before the making of a bail decision, which ought to have been made speedily. There was no basis for thinking he may have been concealing drugs or other evidence of a criminal activity. There was no situation of emergency or overcrowding at the Watchhouse which might have justified a particularly cautious approach on the part of Constable Kearns.

  87. I have reached the conclusion that, in all the circumstances, the conduct of the strip-search was for these reasons in excess of the powers available to the police, and therefore unlawful.


Cases

R v Dodgson (1995) 2 HRNZ 300; R v M [1995] 1 NZLR 242; Police v Smith & Herewini [1994] 2 NZLR 306; Roper v Police [1984] 1 NZLR 48; Po v Ministry of Transport [1987] 2 NZLR 757; Williams v Police [1981] 1 NZLR 108; Donnelly v Jackman [1970] 1 All ER 987; R v Thomas [1991] 3 NZLR 141; Rudling v Police (M1498/78, Auckland Registry, judgment 18 December 1978); R v Jeffries [1994] 1 NZLR 290; Neilsen v Attorney-General (CA 101/00, judgment 3 May 2001); Auckland City Council v Dixon [1985] 2 NZLR 489; R v Bryant [2001] 2 NZLR 319; Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; Howden v Ministry of Transport [1987] 2 NZLR 747; Leigh v Cole (1853) 6 Cox CC 329; R v Stillman (1997) 113 CCC (3d) 321); R v N (CA395/92, judgment 25 June 1993); R v Flintoff (1998) 126 CCC (3d) 321

Legislations

Transport Act 1962: s.66

Crimes Act 1961: s.315

Bill of Rights: s.21, s.22, s.23, s.27

Land Transport Act 1998: s.114

Summary Offences Act 1981: s.9, s.10

Police Act 1958: s.30, s.57A

Penal Institutions Act 1954: s.2, s.21K

Penal Institutions (Police Jail) Notice 1992 (SR1992/242): s.4, s.6, s.12.s.16

Authors and other references

Wellington Central Police Station Watchhouse and Cellblock Induction Booklet

Representations

T Ellis and A Shaw for the Appellant (instructed by N Dunning, Wellington)

D J Boldt and A S Butler for the Respondent (instructed by Crown Law Office, Wellington)


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