By Paul Gregoire and Ugur Nedim
At around 3.30 am on 24 March 2015, Steven Attalla was sitting on a stone wall out the front of a church on Bourke Street in Darlinghurst, smoking a cigarette and sending a text message to a friend, when a police car drove up and parked in a side street.
Senior Constable Courtney Cruickshank noted Attalla had watched the car approach and she started to form a “reasonable suspicion” about him. She got out of the vehicle and approached the man, accompanied by Senior Constable Adrienne Leech, and Probationary Constable Stephen Findlay.
After Cruickshank established that Attalla was on his way home to The Rocks, she said, “Mate, this doesn’t really make sense to me. It’s nearly 4 o’clock in the morning and you’re up here by yourself, having walked in the wrong direction to get from Kings Cross to The Rocks.”
Earlier that evening, Attalla had been with an acquaintance at Circular Quay. Later, he wandered up to Woolloomooloo to get a coffee at the Finger Wharf, but everything was closed. So, he walked to Williams Street to go to a bar, however it was after lockouts, so he bought a pack of cigarettes.
A law unto themselves
Constable Cruickshank went on to say that she suspected Mr Attalla was in possession of drugs and she was going to search him. The 53-year-old man refused to comply, which prompted the officer to place him under arrest for hindering police in the execution of their duty.
As Cruickshank placed her hands on Attalla to arrest him, another police vehicle pulled up. Cruickshank went over to talk to some officers, and Senior Constable Andrew Price imposed a wristlock on Attalla, handcuffed him and conducted a search, which resulted in nothing being found.
Cruickshank then ordered Attalla into the back of a police wagon. He was taken to Kings Cross station, where the officer ordered two male officers to strip search him. And Attalla was made to remove all of his clothes, lift his genitals for inspection and squat.
No drugs were found again on the man, who had been sitting on the side of the road minding his own business. He was issued with a court attendance notice over hindering police, but the charge was later dropped. And Attalla decided he’d sue the state of NSW for unlawful arrest and assault.
For just compensation
Prior to the trial that began on 26 February last year, the state of NSW conceded that the strip search was unlawful. Indeed, the state admitted that the continued detention of Mr Attalla following the general search on the street was unwarranted.
So, the issues before the court were whether Cruickshank had a reasonable suspicion that Attalla was in possession of drugs prior to announcing the search, was her assertion that he’d hindered police reasonable and should Price have applied a wristlock.
As NSW District Court Judge Philip Taylor outlined, section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the LEPRA) permits an officer to stop, search and detain a person without a warrant if they suspect on reasonable grounds they’re in possession of an illegal substance.
The state pointed to a number of grounds that warranted the proposed general search. This included his sitting in close proximity to the intersection of Bourke and William Streets, which, Cruickshank asserted, is an area known for sex work, illicit drugs and other forms of street crime.
However, his Honour said there was nothing about Mr Attalla’s location and presence at the time police approached him that suggested he was in possession of drugs, any more than he was involved in sex work or housebreaking, which were two crimes the attending officers didn’t suspect him of.
Another assertion was that Attalla had suspiciously focused upon the police car on approach. But, Judge Taylor said this was quite reasonable considering it was the middle of the night and no one else was around. In fact, not to have acted in this manner would have warranted suspicion.
An unlawful search
The judge set out that under section 32(7) of the LEPRA, a search must be carried out by a police officer of the same sex as the person being searched. And therefore, Attalla was right to resist the proposed search, which would have been carried out by a woman, thus being illegal.
And as there were no legitimate grounds for a search, Attalla couldn’t have broken the law. “Once officer Cruikshank has no reasonable belief in an entitlement to search, she can have no reasonable suspicion that Mr Attalla has hindered police in the lawful execution of their duty,” his Honour said.
The judge further found there was no justification for officer Price to have used such force, which means his actions constituted assault and battery. And while the legislation would allow Price to assist Cruickshank in arrest, he had no cause to carry out a search or arrest on his own.
Without purpose or need
Mr Attalla gave evidence that following his strip search at the police station, officer Cruickshank suggested that he could have avoided the ordeal if he had only complied with her requests back on the street.
This “statement implies recognition in officer Cruickshank of the hurt and embarrassment she had caused Mr Attalla, and an assertion, wrongly as I have found, that he, not her, was responsible for all those unlawful and damaging events”, Judge Taylor said.
Adding to the revenge type nature of the strip search, the judge surmised that it no longer had the aim of trying to find concealed drugs by the time it was carried out. And he found that Cruickshank’s actions showed that she was unaware of the protocols that apply to the humiliating practice.
A routine intrusion
The use of strip searches by NSW police has become routine over recent years. Figures show that over the four year period ending in June last year, the use of strip searches had increased by 47 percent. And 64 percent of these searches have resulted in no illegal items being found.
A NSW police Lessons Learnt Unit report has just come to light that found officers have been breaching strip search protocols regularly out in the field, and this was put down to the vague rules that are set out in the LEPRA.
In summing up Mr Attalla’s civil case, Judge Taylor made clear that “the state’s concession in relation to the strip search illustrates that the police officers have used a most invasive power without the slightest justification.”
And on 29 May last year, his Honour awarded Attalla the sum of $112,387.67 in damages for the deprivation of liberty, injury and humiliation he suffered at the hands of police.
The money will, of course, be paid by the New South Wales taxpayer – not the offending police officers.