The District Court of New South Wales recently considered the application of the Limitation Act 1969 (NSW) (the Act) in a matter brought by Mr Jade Anderson which involved North South Wales police strip searching children.

Ten years ago, the plaintiffs, Mr Jade Anderson and Blade Perri, aged 14 and 13 years old, were walking around the University of New South Wales (UNSW) campus with other boys their age, one of whom had stolen a woman's phone. Neither plaintiff witnessed this incident.

UNSW security up picked the boys prior to NSW Police officers attended the campus to place them under arrest. Both plaintiffs recalled feeling nervous and 'freaked out.' Following a pat down search by NSW Police at the campus, the plaintiffs were conveyed to Maroubra Police Station.

At some stage, NSW Police officers advised the plaintiffs that if they did not comply, the officers would forcibly strip and search them.

Subsequently, male police officers took the plaintiffs to individual cells and strip searched them. This included ordering the boys to remove all their clothing, squat naked, and lift their genitalia. Both followed the NSW Police officers' instructions.

The boys were released without charge.

In July 2021, the plaintiffs initiated proceedings in the District Court of NSW alleging that they experienced battery, assault, and false imprisonment by the NSW Police, as follows:

• Battery when NSW Police officers touched the plaintiffs during the pat down search on the UNSW campus;
• Assault by way of strip searching the plaintiffs because they feared immediate physical contact from the NSW Police officers if they did not comply; and
• False imprisonment for the time the plaintiffs were in detention.

In accordance with the Act, plaintiffs may file an action for assault, battery and false imprisonment within six years of the date it occurs.

In the plaintiffs’ case, they also claimed personal injury (such a claim is subject to a separate, three year limitation period).  

As the plaintiffs were outside the limitation period, they relied on Section 6A of the Act, which removes the limitation period for claims involving the serious physical or sexual abuse of children. In reliance of this exception, the plaintiffs argued that:

• the actions of the NSW Police officers was of a sexual nature and therefore contrary to community standards;
• strip searches constituted child abuse for the purposes Section 6A of the Act; and
• there was no lawful justification for conducting the searches.

Ultimately, the court disagreed.

The court acknowledged that in some circumstances, watching or forcing a child to undress may be a violation of their privacy, and therefore connected to serious physical or sexual abuse of children. However, for the court to consider the strip searches conducted by the NSW Police officers to be child abuse, the behaviour must entail sexual connotation.

While the strip searches were 'deeply regrettable,' no such sexual connotation existed in the NSW Police officers’ behaviour. Accordingly, the strip searches conducted on the children could not be considered child abuse under section 6A.

Ultimately, the plaintiffs were unsuccessful and ordered to pay the NSW Police’s costs.