An Aboriginal teenage girl who was strip searched at Wagga police station has been allowed to continue her legal fight to limit how a video of the search is viewed in court.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
The NSW Supreme Court last week cleared the way for the teenager to again seek to have her case heard before a female magistrate and "have males excluded from court" when viewing the strip search video.
Aboriginal Legal Service barristers acting for the girl, who was referred to by the court-ordered pseudonym of 'Lacey', had argued she would experience "cultural shame" and "extreme distress" from having the video seen by males in court.
The Crown Solicitor's Office had previously won a judgement to block Lacey's application based on the argument it was not amenable to the NSW Crimes (Appeal and Review) Act and the Children's Court did not have the power to enforce its terms.
Lacey was aged 15 in March 2019 when she was charged with four offences of assault an officer in the execution of his or her duty and one charge of destroying or damaging property.
In other news
The property charge resulted from damage to two body cameras worn by police officers at the time of the alleged assaults.
According to testimony, the footage is said to include two short segments showing the applicant's chest and buttocks
Lacey's legal team have indicated that they will use the footage to support their claim that the search was unlawful.
After the charges were listed for Wagga Children's Court in April 2019, Lacey's legal representatives sought an order for a female magistrate and prosecutor to view the video because it would otherwise "breach cultural norms accepted by her people and would exacerbate the invasion of her privacy".
The criminal charges against Lacey have yet to be heard in court due to the Supreme Court proceedings but are listed for a hearing next month.
A magistrate at Wagga Children's Court declined to make the order "on the basis that five male police officers were required by the defence for cross-examination and it would be necessary to play the video recordings before them".
The application proceeded to the NSW Supreme Court's Common Law Division and then to its Court of Appeal, which handed down its judgement last week.
More court news
Court of Appeal Justice Helen Wilson noted that Lacey's application was "supported by evidence that, in Aboriginal cultures, the showing of a woman's sensitive parts is considered women's business which must only be conducted in the presence of women".
"If women's business is conducted in the presence of men, the likely result is cultural shame which would be extremely distressing and would stay with the woman for a long time," Justice Wilson noted.
"[Lacey] had told a Field Officer with the Aboriginal Legal Service that, if her charges could not be heard by a female magistrate, she did not want to defend the matter."
In 2019, Lacey was alleged to have found a set of car keys and used them to take a car "without the consent of the owner" and drive it to a house in Wagga, where she was arrested.
"An obvious focus of the police investigation was to find the keys," Justice Wilson stated in her appeal judgement.
"After the applicant had been arrested and taken back to Wagga police station, police attempted to search her. She is described in the police fact sheet as having been 'combative and uncooperative'."
Police alleged that Lacey spat on a female officer who was attempting to search her.
"The fact sheet states that, after the initial unsuccessful search and while the applicant was standing in the 'dock' at the police station while the charges were being processed, she was seen "dangling" a set of keys which police allege included the key to the stolen car," Justice Wilson stated.
"The fact sheet states that she 'continued to pull out items from underneath her clothing and made threats to use the items either for self-harm or harm of others'. Police formed the suspicion that she was 'in possession of more items in relation to the incident' and decided to conduct a strip search.
"The strip search was carried out by female police officers in the presence of [Lacey's female] support person."
Justice Wilson noted that material from the police made no reference to there having been any male present during the search but the court was later told during the appeal that the video showed a male police officer standing behind two female officers who were carrying out the search.
"It is not clear from the information provided in the police fact sheet why any male witness, or indeed any witness, would need to be present in court while the video of the strip search was played," Justice Wilson stated.
Lacey's mother had provided a sworn affidavit she had previously had "issues with sexual assault" which she had attempted to report to police but that police had told her to go home.
The mother stated that, following that incident, Lacey "doesn't trust the police".
Justice Wilson stated that an application "that a matter be heard by a magistrate of a particular sex, provided such a condition is necessary for the effective exercise of the court's statutory powers, does not [detract from] the Children's Court's institutional authority".
"The Court's jurisdiction is blind as to whether it is exercised by a male or a female," Justice Wilson stated, and compared the request to a hypothetical application that the matter be heard at Orange rather than Wagga.
Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content:
- Bookmark dailyadvertiser.com.au
- Follow us on Twitter
- Follow us on Instagram
- Follow us on Google News
- Make sure you are signed up for our breaking and regular headlines newsletters