South Australian Current Acts South Australian Current Acts81—Power to search, examine and take particulars of persons
(1) A person who is
taken into lawful custody may be searched in accordance with this section and
anything found as a result of the search may be removed.
(2) The following
provisions apply to a search under this section:
(a) the
search may only be carried out by a police officer or a medical practitioner
or registered nurse acting at the request of a police officer, but an
intrusive search may only be carried out by such a medical practitioner or
registered nurse;
(b) the
person carrying out the search may use such force as is reasonably necessary
for the purpose and may be assisted by a police officer or other person;
(c)
where a medical practitioner or registered nurse is to carry out an
intrusive search, the detainee must be allowed a reasonable opportunity to
arrange for the attendance, at the detainee's expense, of a
medical practitioner or registered nurse of his or her choice to witness the
search.
(3) The following
further provisions apply to an intimate search:
(a) if
an intimate search is to be carried out on a detainee who is a minor, the
search must not be carried out unless a solicitor or adult relative or friend,
nominated by the minor, is present (but this paragraph need not be complied
with if, in the opinion of a police officer, it is not reasonably practicable
to do so in view of the urgency of the search);
(b) if
an intimate search is to be carried out on a detainee whose native language is
not English and who is not reasonably fluent in English, the detainee must be
informed that he or she may request the assistance of an interpreter;
(c) if a
detainee requests the assistance of an interpreter under paragraph (b),
the search must not be carried out unless an interpreter is present (but
paragraph (b) and this paragraph need not be complied with if, in the
opinion of a police officer, it is not reasonably practicable to do so in view
of the urgency of the search);
(d)
except where it is not reasonably practicable to do so, an intimate search
must be carried out by a person of the same sex or gender identity as the
detainee (unless the detainee requests otherwise);
(e)
except where it is not reasonably practicable to do so, an audio visual record
of an intimate search must be made (but that part of an intimate search that
consists of an intimate intrusive search will not be recorded if the detainee
objects);
(f) if,
apart from the question of whether or not the detainee objects to the
recording, it is otherwise reasonably practicable to make an audio visual
record of an intimate search, the police officer supervising the search must,
before the search is carried out—
(i)
give the detainee a written statement in a form approved
by the Minister outlining—
(A) the value of making an audio visual
record of the search; and
(B) that the detainee may object to the
search being so recorded; and
(C) where relevant, that if the detainee
objects to an intimate intrusive search being recorded, the
intimate intrusive search will not be recorded; and
(ii)
read the statement to the detainee (with the assistance
of an interpreter if one is to be present during the search);
(g) if
an audio visual record of an intimate search, or that part of an
intimate search that consists of an intimate intrusive search, is not to be
made, the police officer must ensure—
(i)
that a written record of the search is made at the time
of or as soon as practicable after the search, documenting all items found on
the detainee and everything said and done by all persons present; and
(ii)
that, as soon as practicable after the search, the record
is read aloud to the detainee and an audio visual record of the reading is
made; and
(iii)
that, when the audio visual recording begins (but before
the reading begins) the detainee is invited to interrupt the reading at any
time to point out errors or omissions in the record; and
(iv)
that, if the detainee in fact interrupts the reading to
point out an error or omission, the detainee is then allowed a reasonable
opportunity to do so; and
(v)
that, at the end of the reading, but while the audio
visual recording continues, the detainee is again invited to point out errors
or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)
that, if the police officer agrees that there is an error
or omission in the record, the officer amends the record to correct the error
or omission and if the officer does not agree that there is an error or
omission in the record, the officer nevertheless makes a note of the error or
omission asserted by the detainee in an addendum to the record.
(3a) In deciding
whether it is reasonably practicable to make an audio visual record under this
section, the following matters must be considered:
(a) the
availability of recording equipment within the period for which it would be
lawful to detain the detainee;
(b)
mechanical failure of recording equipment;
(c) any
objections made to the recording by the detainee;
(d) any
other relevant matter.
(3b) If an audio
visual record is made under this section, the police officer must, as soon as
is reasonably practicable, give the detainee a written statement of his or her
right—
(a) to
have the audio visual record played over to the detainee or his or her legal
adviser (or both); and
(b) to
obtain a copy of the audio visual record.
(3c) Arrangements must
be made, at the request of a detainee, for the playing of an audio visual
record at a reasonable time and place to be nominated by the police officer.
(3d) A detainee must
be provided, on request and on payment of the fee fixed by regulation, with a
copy of an audio visual record made under this section.
(3e) A person (other
than the detainee) must not play, or cause to be played, an audio visual
record made under this section except—
(a) for
purposes related to the investigation of an offence or alleged misconduct to
which the person reasonably believes the recording may be relevant; or
(b) for
the purposes of, or purposes related to, legal proceedings, or proposed legal
proceedings, to which the recording is relevant.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3f) An audio visual
record made under this section or a written record of an intimate search must
be destroyed—
(a) if
the Commissioner of Police is satisfied that it is not likely to be required
for any of the purposes referred to in subsection (3e); or
(b) if a
court or tribunal so orders.
(3g) The Governor may,
by regulation, provide for the storage, control, movement or destruction of
audio visual records and written records made of intimate searches under this
section.
(4) Where a person is
in lawful custody on a charge of committing an offence, a police officer may,
if the officer believes on reasonable grounds that it is necessary to do so
for the purpose of identifying that person or identifying that person as the
person who committed an offence—
(a)
take, or cause to be taken, photographs of that person and prints of the
hands, fingers, feet or toes of that person, and may use, or cause to be used,
such reasonable force as is necessary for that purpose;
(c) make
a recording of the voice of that person;
(d)
request that person to supply a sample of his or her handwriting.
(4a) A police officer
may not exercise a power under subsection (4) for the purpose of
identifying a person in lawful custody as the person who committed an offence
unless—
(a) the
person has been charged with the offence; or
(b) the
police officer is acting upon the authorisation of a magistrate given under
this section.
(4b) For the purposes
of subsection (4a), a police officer may obtain the authorisation of a
magistrate upon application made in person or, if it is impracticable to do so
in person, upon application made by telephone.
(4c) A magistrate to
whom application is made under subsection (4b) may give the authorisation
if the magistrate thinks it proper to do so in all the circumstances of the
case.
(4d) Where application
is made under subsection (4b) in person, the magistrate must give an
authorisation in writing and where application is made under that subsection
by telephone, the magistrate must, as soon as is practicable after giving the
authorisation, cause a written memorandum of the authorisation to be forwarded
to the police officer who made the application.
(4e) A person who
refuses or fails to comply with the reasonable directions of a person who
seeks to obtain a sample of his or her voice or handwriting under
subsection (4) is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months
(4g) A procedure under
this section—
(a) must
be carried out humanely and with care—
(i)
to avoid, as far as reasonably practicable, offending
genuinely held cultural values or religious beliefs; and
(ii)
to avoid inflicting unnecessary physical harm,
humiliation or embarrassment; and
(b) must
not be carried out in the presence or view of more persons than are necessary
for properly carrying out the procedure and satisfying any relevant statutory
requirements.
(5) The powers given
by this section are in addition to, and do not derogate from, any other powers
of police officers.
(5a) No civil or
criminal liability is incurred by a person who carries out, or assists in
carrying out, a procedure under this section for an act or omission if—
(a) the
person genuinely believes that the procedure is authorised under this section;
and
(b) the
act or omission is reasonable in the circumstances.
(6) In this
section—
"intimate intrusive search" means an intrusive search of the rectum or vagina;
"intimate search" means a search of the body that involves exposure of, or
contact with the skin of, the genital or anal area, the buttocks or, in the
case of a female, the breasts, and includes an intimate intrusive search;
"intrusive search" means an internal search involving the introduction of
anything into a bodily orifice;
"medical practitioner" means a person registered under the Health Practitioner
Regulation National Law to practise in the medical profession (other than as a
student);
"registered nurse" means a person registered under the Health Practitioner
Regulation National Law —
(a) to
practise in the nursing profession as a nurse (other than as a student); and
(b) in
the registered nurses division of that profession.