A prominent human rights lawyer has raised questions about video footage of a 50-year-old Indigenous homeless man being restrained and body-searched on the street by police in Glebe, Sydney, last month.
Video footage of the incident captured on a mobile phone by a bystander shows the man handcuffed and dressed only in his underwear while being searched by two undercover officers for what NSW Police describe as being “due to his suspicious behaviour”.
In the vision, a male officer pushes the man against a wall on Glebe Point Road and searches the man’s underwear. The male officer then orders the man to sit down and uses force to seat the man. In the process, the handcuffed man’s head hits against a street electricity box.
After the man's shoes and pants are searched, the male officer finds a box of syringes and questions the man about having them in his possession. The man explains he was returning them to a nearby clinic.
After about 10 minutes, a third officer arrives on the scene with a key to unlock the man's handcuffs. The man then puts his clothes back on and is issued with a direction to move on.
After viewing the footage, human rights lawyer George Newhouse told NITV News it appeared the police officers involved may have targeted the man and used excessive force.
“Without knowing the facts behind the situation it is hard to determine the full story,” said Mr Newhouse, but added that in his view police in general stopped and searched Aboriginal and Torres Strait Islander people at much higher rates than non-Indigenous people.
According to Mr Newhouse, racially motivated stop and search incidents have contributed to Indigenous over-representation in rates of incarceration across the nation.
“You have to say that race does play a part in these decision-making processes by police,” Mr Newhouse said.
As of June 30, 2018, Aboriginal and Torres Strait Islander adults made up 28 per cent of the total Australian prison population despite making up 2 per cent of the population over the age of 18.
Aboriginal and Torres Strait Islander youth made up 59 per cent of young people in detention on an average night as of June 30, 2018. Indigenous youth aged between 10 and 17 make up five per cent of the prison population in this age bracket.
Indigenous young people are also 26 times more likely to be in detention on an average night, according to the Australian Institute of Health and Welfare.
Mr Newhouse said for someone to be publicly searched in New South Wales, police officers need to reasonably believe that the person was recently involved in a crime within the area or is carrying a prohibited item.
“In NSW the police have to honestly and reasonably believe that you’ve got drugs, stolen items, weapons or a dangerous item on your person before they can search you, it is not a free for all,” Mr Newhouse said.
The law in NSW gives the police too much discretion to exercise their stop and search powers, according to Mr Newhouse.
He said there needs to be a clear justification for stopping someone and searching them and that the reason should be recorded so anyone can challenge the legality of the stop and search.
"Simply walking in the street does not justify the excessive numbers of Indigenous people being stopped and searched by Police. A badly worded law without accountability allows the Police to abuse their powers," Mr Newshouse said,
In NSW it is legal to carry on your person syringes if it has been legally obtained from an authorised needle and syringe program but is illegal if that syringe has been obtained from a friend or family member or to pass these onto friends and family.
Carrying used sterile fits is also legal, but can be used as evidence of the criminal act of self-administration, an offence under the Drug Misuse and Trafficking Act 1985 (NSW), which is often difficult to prove if no drugs are found according to the New Users and Aids Association.
NITV News investigates the Glebe video
In an online post by Sydney Criminal Lawyers, Paul Gregoire says the search was an illegal strip search and that the officers ordered the man to take off his clothes in broad daylight.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 a strip search must be conducted in a private area, away from the view of another person of the opposite sex and the search must be carried out by an officer of the same sex.
Ali Saleh, a senior criminal lawyer at Sydney Criminal Lawyers, told NITV News that three predominant tests for reasonable suspicion needed to be present before a search can be conducted.
“The police have obtained information that is relevant to a crime that has recently been committed in that area,” he said. “The person that they choose to search fits a description of a report. Or that the area itself is known for unlawful activity… You can probably target a park, festival ground or an area that is known, not a suburb.”
“Police need to be acting within their duties and if they aren’t, anything found during the search becomes inadmissible in court,” said Mr Saleh.
In a statement to NITV News, NSW Police said: “... the man became agitated when officers informed him he would be subject to a general search (not a strip search). When the man became hostile towards officers he was handcuffed due to safety concerns; despite being handcuffed he then began removing his clothing."
The statement also said once the man calmed down, the officers involved released him and issued him with a move-on direction.
One trader on Glebe Point Road who witnessed the incident told NITV News the man removed his own clothes before the video footage of the encounter started recording.
The person who recorded the incident informed NITV News the footage also doesn’t capture the two undercover officers involved threatening to arrest her for recording the stop and search.
Mr Newhouse said members of the public are allowed to video police performing their duties in public.
“The laws do differ around Australia about what’s called secret recording, so if you are on private property and they don't know you are filming them it may be problematic… but if you are in a public place… you have every right to film them,” he said.
“In the future, you are going to see more police charged with criminal offences for their actions only because people can prove it happened in the video,” Mr Newhouse said.
Additional enquiries by NITV News have been put to NSW Police; the Law Enforcement Conduct Commission (LECC); NSW Attorney General, Mark Speakman; NSW Shadow Attorney General, Paul Lynch; Shadow Minister for Police, Guy Zangari, and the NSW Police Commissioner. Each office directed our enquiries elsewhere.
At the time of publication, the NSW Police Force's central metropolitan region professional standards manager postponed a response to our enquiries for a further five days.
Unlawful conduct is happening nationwide
Incidents of police potentially acting outside their duty of care are surfacing in social media videos across the nation.
Geoffrey Glenn was walking in Brisbane's Fortitude Valley when he and his younger relatives were stopped by a group of officers on the suspicion of committing a crime.
One of the officers was heard saying, ‘I require you to state your full and correct name as I believe you may be committing an offence’ which was the offence of loitering.
Mr Glenn explains in the video that the group were walking from their car to Cash Converters and then back again, establishing the fact that they were not standing around.
Mr Newhouse was one of the hundreds of people that had seen the video shared on Facebook who believed the boys were not committing an offence.
“Loitering is a very ancient offence and it does exist on the criminal books in many states, Queensland in particular, but loitering involves hanging around and not moving,” he said.
“Now I’ve seen some of the footage… and in that situation, it doesn’t appear to me to be loitering… the men say that they were walking from their vehicle to a shop and back to their car, that’s not loitering.”
Mr Glenn told NITV News that apart from being stopped and accused of possibly committing a crime, the police marked his car as a stolen vehicle.
“They assumed my car was stolen they flagged it as a stolen car,” he said.
“To think that you can be black, pull up in a nice car in the middle of the city, get out and them assume that it is stolen and mark your car as stolen, would they do that to anyone else, I don’t know about that.”
Western Australia has also seen incidences of police brutality where an episode, recorded on a phone by bystanders, saw a police officer in a four-wheel drive hit an Indigenous man where he then fell into a seizure.
There was a female officer walking alongside the van who did not react or move faster to try and help the man that had just been hit.
Newcastle in New South Wales saw an incident on January 26, 2019, of an Indigenous man being kicked and punched by a group of police officers through vision obtained on CCTV footage.
The man was punched on the floor of a police garage after being pulled out of the police van, and then kicked and punched again at his cell.
The following Friday, Magistrate Alan Railton addressed the violent behaviour of the officers.
"Mr Hoppner was dealt [with] by police in an extremely forceful manner," Mr Railton told the Toronto Local Court.
"The footage clearly shows the police using significant force in removing him from the truck and removing him from the cells. It also shows actions totally consistent with throwing punches."