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Supreme Court 28 November 2002

DPP v Darby

[2002] NSWSC 1157

Drugs
POLICE POLICE POWERS DRUG DETECTION DOG SNIFFER DOG SUSPICION REASONABLY SUSPECT

Citation: DPP v Darby [2002] NSWSC 1157
Court: Supreme Court of New South Wales
Date: 28 November 2002
Judge(s): O'Keefe J

Background

At approximately 1:55am on 25 February 2001, a plain-clothes police officer and his drug detection dog, Rocky, were positioned outside a nightclub on Oxford Street, Sydney. Rocky had been trained to detect the scent of cannabis: upon detecting it, he would follow the scent to its source and place his nose on that source before sitting down beside it. That night, Rocky picked up a scent, approached the defendant, and repeatedly placed his nose on the defendant's pocket.

After Rocky's alert, police officers identified themselves to the defendant. The defendant became agitated, removed plastic bags from his pocket, and was subsequently found in possession of 2.89 grams of methylamphetamine and 1.9 grams of cannabis leaf. Two charges of possessing a prohibited drug were laid against him under the Drug Misuse and Trafficking Act 1985.

At the Local Court hearing, the Magistrate conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) on the lawfulness of Rocky's actions. The Magistrate found that Rocky's conduct constituted a "search" under s 37(4) of the Drug Misuse and Trafficking Act 1985, that the search was unlawful because no warrant had been obtained, and that the evidence of the drugs found on the defendant should be excluded under s 138 of the Evidence Act 1995. The charges were dismissed. The Director of Public Prosecutions appealed to the Supreme Court.

  • Whether Rocky's actions, specifically detecting a scent and placing his nose on the defendant's pocket, constituted a "search" for the purposes of s 37(4) of the Drug Misuse and Trafficking Act 1985.
  • If Rocky's conduct did amount to an unlawful search, whether the Magistrate correctly applied s 138 of the Evidence Act 1995 in excluding the evidence of the drugs found on the defendant.
  • Whether the Magistrate erred in law in dismissing the charges against the defendant.

Decision

O'Keefe J found that the Magistrate was wrong in law to characterise Rocky's actions as a "search." The court reasoned that Rocky merely identified the source of a scent already present in the atmosphere, a process more analogous to sensory detection than to a physical intrusion into a person's belongings or body. Rocky's behaviour did not involve any rummaging through, handling of, or physical intrusion into the defendant's person or possessions in the way a conventional search would.

The court drew on both Australian and United States authorities dealing with drug detection dogs, and noted that identifying the presence of a substance by smell does not, of itself, constitute a search in the legal sense. The act of placing his nose on the defendant's pocket was the natural conclusion of following a scent already in the public environment, not an exercise of a search power. Accordingly, the threshold question about warrant requirements for a "search" under s 37(4) did not arise on these facts.

Because the Magistrate's finding that an unlawful search had occurred was itself erroneous, the subsequent exercise of discretion to exclude evidence under s 138 of the Evidence Act 1995 was also flawed. The exclusion rested on a premise, that police had conducted an illegal search, that the Supreme Court found to be legally incorrect. The decisions to exclude the evidence and to dismiss the charges were therefore set aside.

Orders Made

  • Leave granted to amend the summons to seek leave to appeal under s 104(4) of the Justices Act 1902 in respect of the Magistrate's decision to reject evidence of the drugs found on the defendant.
  • Leave to appeal granted under s 104(4) of the Justices Act 1902.
  • The Magistrate's decision rejecting that evidence was set aside.
  • The Magistrate's decision dismissing the charges was quashed.
  • Both charges were remitted to the Local Court to be dealt with in accordance with the law as set out in the judgment.
  • Declarations made that the Magistrate erred in law: (1) in finding that Rocky's actions constituted a search under s 37(4) of the Drug Misuse and Trafficking Act 1985; (2) in refusing to admit the drug evidence under s 138 of the Evidence Act 1995; and (3) in dismissing the charges.
  • The defendant ordered to pay the plaintiff's costs.
  • The defendant granted an indemnity certificate under s 6 of the Suitor's Fund Act 1951, if otherwise entitled.

Key Takeaways

  • A police drug detection dog identifying the source of a scent already present in the public atmosphere does not constitute a "search" for the purposes of s 37(4) of the Drug Misuse and Trafficking Act 1985, at least on the facts considered in this case.
  • The Supreme Court distinguished between passive scent detection in a public space and the kind of physical intrusion or examination that the law recognises as a "search."
  • Where a finding of unlawful search is itself erroneous, a subsequent decision to exclude evidence under s 138 of the Evidence Act 1995 that depends entirely on that finding will also be infected by legal error.
  • In dismissing the appeal against the Magistrate's decisions, the Local Court had proceeded on an incorrect legal foundation, and the Supreme Court set aside both the evidentiary ruling and the dismissal of charges.
  • Extensive reference was made to United States federal authorities dealing with canine scent detection, reflecting that this was, at the time of the decision, a developing area of law in Australian jurisdictions.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 37(2), (3), (4)
- Evidence Act 1995 (NSW), s 138
- Justices Act 1902 (NSW), ss 104(2), (4), 109(a)
- Police Powers (Drug Detection Dogs) Act 2001 (NSW)
- Suitor's Fund Act 1951 (NSW), s 6

Cases:
- George v Rockett (1990) 170 CLR 105
- Elcham and Anor v Commissioner of Police (2001) 53 NSWLR 7
- Hoare v The Queen (1999) 197 CLR 682
- Boughey v The Queen (1986) 161 CLR 10
- Regina v Phillips (1971) 45 ALJR 467
- Licul v Corney (1976) 50 ALJR 439
- Questions of Law Reserved (No. 3 of 1998) (1998) 71 SASR 223
- Anson v Director of Public Prosecutions [2002] NSWSC 408
- United States v Place (462 US 696 (1982))
- United States v Chadwick (433 US 1 (1977))
- United States v Bronstein & Anor (521 F.2d 459 (1975))
- United States v Fulero (498 F.2d 748 (1974))
- United States v Jacobsen (466 US 109 (1984))
- United States v Beale (736 F.2d 1289 (1984))
- Doe v Renfrow (451 US 1022 (1981))
- Horton v Goose Creek Independent School District (690 F.2d 470 (1982))
- Entick v Carrington (1765) 19 State Tr 1029
- Malone v Commissioner of Police (No. 2) [1979] 2 All ER 620
- Regina v Lethlean (1995) 83 A Crim R 197
- Salter Rex & Co v Gosh [1971] 2 QB 597
- Regina v Bozatsis (1997) A Crim R 296
- Regina v Cheng (1999) 48 NSWLR 616