By Zeb Holmes and Ugur Nedim
When 29-year-old Filip Black was stopped by police, they asked him what he was doing in the area and he replied, “none of your fucking business”. The officer later said “you’re fucking worked up, just chill out”.
Circumstances of stop and search
Mr Black was walking on a residential street bordering Centennial park at about 9am in July last year, when two passing police officers stopped him on the basis the area is “renowned for break-and-enters” and Mr Black was wearing a black hooded top.
But Mr Black, who was walking to TAFE, refused to tell the police what he was doing in the area or to give any of his details.
Mr Black was then arrested and searched, with police finding nothing to suggest he was doing anything illegal.
He was then charged with offensive language, with one of the officers alleging he said “fuck it right in your mum’s pussy”. However, that statement could not be heard in the police recording of the incident.
Mr Black’s lawyer did not take issue with whether the statement was said, or whether it amounts to offensive language under the law.
Rather, his argument in court was that the alleged statement is inadmissible due to the fact it was “obtained as a consequence of a contravention of Australian law, both the arrest as being unlawful and the search that occurred thereafter”.
The contravention, he submitted, arose from the fact police did not have a suspicion on reasonable grounds to arrest and search Mr Black in the first place.
In that regard, section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 gives police the power to stop, search and detain a person without a warrant if the officer “suspects on reasonable grounds” that the person possesses:
- Anything stolen or otherwise unlawfully obtained
- Anything used or intended to be used in or in connection with the commission of a relevant offence,
- A dangerous article that is being or was used in or in connection with the commission of a relevant offence, or
- A prohibited plant or drug.
“(a) … involves less than a reasonable belief but more than a possibility.. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
“(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown….
“(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.”
Mr Black’s lawyer submitted that the circumstances of his client walking at 9am in an area allegedly known for break and enters, while wearing a black hooded top were not sufficient to give police a reasonable suspicion under the law to stop and search him
If the District Court accepts that the search was indeed illegal, section 138 of the Evidence Act 1995 (NSW) provides that evidence (of swearing) thereafter:
“is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”
Judge Andrew Scotting of is due to hand down his decision on the matter later this month.
On-the-spot fine versus court attendance
In 2014 the NSW government increased the on-the-spot fine for offensive language from $150 to $500. That year, there were 3,732 incidents of offensive language recorded, down 8.5% on the year before.
Police are at liberty to either issue on-the-spot fines through criminal infringement notices – which do not require the alleged offender to attend court and do not come with a criminal conviction – or issue court attendance notices which do require attendance.
A person who is issued with a criminal infringement notice can elect to take the matter to court.
Law reform advocates point out that nearly all on-the-spot fines and prosecutions for offensive language arise from interactions with police.
In 2012, the NSW Law Reform Commission proposed suggesting the abolition of offensive language offences because the test is “subjective and difficult for an enforcement officer to determine”, the conduct caused “relatively minimal harm” and the fines were inconsistent because they depended on where the offence took place.