Privacy Law and Policy Reporter
Evidence obtained after a search by a police sniffer dog was ruled inadmissible by New South Wales Deputy Chief Magistrate Mary Jerram in Police v Darby, on 21 November 2001. The magistrate had earlier ruled that the dog had conducted a form of search and that the search was illegal.
The defendant was in a group of approximately 40 people who had come out of a nightclub in Oxford Street Sydney. Plain-clothes police were at the scene with ‘Rocky’ the police dog. Rocky indicated the presence of illegal substances and performed certain actions identifying the defendant as being apparently in possession of those substances.
Under the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) a member of the police may:
...stop, search and detain:
(a) any person in whose possession or under whose control the member reasonably suspects there is any prohibited plant or prohibited drug; or
(b) any vehicle in which the member reasonably suspects there is any prohibited plant or prohibited drug which is, in the possession or under the control of any person.
The first question decided by the magistrate was whether the dog had performed a search and, if so, whether that search was legal. The magistrate determined that Rocky had performed a search of the defendant and that the search preceded and indeed created the formation of the reasonable suspicion required under the DMTA for the police officer to stop, search and detain the defendant for prohibited drugs. In the view of the magistrate the search was illegal.
The next decision for the magistrate was whether the evidence should be admitted pursuant to s 138 of the Evidence Act 1995 (NSW). Under this section improperly obtained evidence is not to be admitted unless ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. The Evidence Act sets out a number of considerations the court is to take into account in deciding whether or not to admit the evidence, including:
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence ... and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety ... 
The magistrate dealt with each of these considerations. She found that the evidence was clearly highly probative and important because without the evidence there would be no case to answer. Her Worship quoted from Bunning v Cross:
to treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless may serve to foster the quite erroneous view that if such evidence be but damning enough, that will suffice to atone for the illegality involved in procuring it.
The prosecution had contended that the police did not go out with the intention that the dog would search anyone but would merely assist them. In the light of her findings the magistrate considered this suggestion to be nonsense.
Interestingly the magistrate also found the action of the police to be in contravention of Pt III, art 17 of the International Covenant on Civil and Political Rights. She was of the opinion that
‘... search of persons in public places in these circumstances, given the illegality, can be seen to create an “unlawful interference” with ... privacy ...’.
On December 2001 the Police Service lodged an appeal to the Supreme Court against the ruling of the magistrate. The appeal is likely to be heard in the first half of 2002.
In response to this case the New South Wales Parliament passed the Police Powers (Drug Detection Dogs) Act 2001 (NSW) (the Act). The Act confirms that a police officer may use a dog to search a person for drugs if the police officer is authorised to search the person for the purpose of detecting a drug offence.This may not have changed the position as it was in the case discussed above. A police officer must have the requisite authority before using a sniffer dog.
However, the Act gives police specific authority to carry out ‘general drug detection’ in specified areas. General drug detection is defined under the Act as ‘the detection of prohibited drugs or plants in the possession or control of a person, except during a search of a person that is carried out after a police officer reasonably suspects that the person is committing a drug offence’. Therefore the police can conduct searches of individuals without a reasonable suspicion that the individual is committing an offence in the following circumstances:
(a) persons at, or seeking to enter or leave, any part of premises being used for the consumption of liquor that is sold at the premises (other than any part of premises being used primarily as a restaurant or other dining place);
(b) persons at, or seeking to enter or leave, a public place at which a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held;
(c) persons on, or seeking to enter or leave, a public passenger vehicle that is travelling on a route prescribed by the regulations, or a station, platform or stopping place on any such route.
The Act also gives the police power to conduct ‘general drug detection’, that is, random searches under a warrant. These warrants can be issued by an authorised justice on the application of the police who have ‘reasonable grounds for believing that the persons at any public place may include persons committing drug offences’. The introduction of the new Act will stop random searches of people by sniffer dogs, except in the circumstances set out in the list above. The police will not be able to use sniffer dogs in the main suburban shopping centres as they have been in the past. However, they will still be able to use the sniffer dogs on railway stations and outside nightclubs.
Practitioners with clients charged as a result of a drug search by a sniffer dog should examine the facts and circum-stances of the search very carefully before giving advice. Even with the introduction of the new Act, challenges may be available to the use of sniffer dogs. v
Phillip Gibson is a partner at Nyman Gibson and Co. and an accredited specialist in criminal law. In Police v Darby (unreported) the defendant was represented by Mr Philip Stewart, senior associate at Nyman Gibson and Co and an accredited criminal law specialist.
This article is reprinted with the kind permission of the Law Society Journal (NSW, Australia), where it appeared in the February 2002 issue, [cite as (2002) 40 (1) LSJ 62] p 62.
 Drug Misuse and Trafficking Act 1985 (NSW) s 37(4).
 Above note 1 s 37(4)(a).
 Evidence Act 1995 (NSW) s 138(3).
 Bunning v Cross  HCA 22; (1978) 141 CLR 54 at 79.
 Police Powers (Drug Detection Dogs) Act 2001 (NSW) s 4.
 Section 7.
 Section 5.
 Section 7(1).
 Section 8.