Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2789 ..

MR STEFANIAK (continuing):

police time and leads, in many instances, to the destruction of evidence. The proposed section 349SB, which stipulates that the person may only be detained for as long as is "necessary and reasonable" to conduct a search, will ensure the person being searched will be inconvenienced as little as possible.

In clause 16, which inserts section 349SA, the power to enable the police to stop and search people reasonably suspected of having "stolen or unlawfully obtained" goods or "a thing used, or intended to be used, to commit an indictable offence", there are great restrictions on the current police powers to search people. Unless they have been arrested, only people reasonably suspected of carrying a knife in a public place or school (section 349DB of the Crimes Act) or reasonably believed to be in possession of a firearm connected with an offence (section 75 of the Firearms Act) can be searched without a warrant.

The Australian Law Reform Commission and the Criminal Justice Commission deemed that search powers in relation to serious or indictable offences are justifiable. Providing search powers in relation to goods reasonably suspected to be stolen or otherwise unlawfully obtained is similarly justifiable.

Given how rapidly stolen goods can be disposed of and the level of property crime in this territory, it is appropriate to provide police with the power to stop and search persons reasonably suspected of carrying such goods.

These amendments are based on section 357E of the New South Wales Crimes Act, and the Australian Law Reform Commission considers that a reasonable suspicion test is an appropriate test for powers of this kind. While there is no standard or fixed rule as to what are reasonable grounds for suspicion, an off-sided test is whether a reasonable person would fairly suspect the matters in question for all the circumstances. It is clear that reasonable suspicion is something more than mere suspicion, and it requires a legitimate basis for the search.

The case law that can be cited for the information of members includes R v Chan (1992) 28 NSWLR 421:

Reasonable suspicion is a suspicion based on facts which, objectively seen, are sufficient to give rise to an apprehension of the suspected matter.

Also, in Tucs v Manly (1985) 62 ALR 460:

To say that a suspicion is reasonable does not necessarily imply that it is well founded or that the grounds for suspicion must be factually correct.

Another case is R v MacLeod (1991) 61 A Crim R 465, which states:

Although suspicion has a lesser standard of conviction than belief, there must still be a real foundation.

Also, case law from overseas in relation to the analogous concept of reasonable cause suggests that reasonable suspicion must be something more than just mere conjecture. Rather, it must be the suspicion of a reasonable person which is warranted by facts from which inferences can be drawn.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .