DPP v Darby [2002] NSWSC 1157

New South Wales Supreme Court

CITATION : DPP v Darby [2002] NSWSC 1157 FILE NUMBER(S) : SC 13819/01 HEARING DATE(S) : 29/05/02 JUDGMENT DATE : 28 November 2002

PARTIES : Director of Public Prosecutions Glen Paul Darby JUDGMENT OF : O'Keefe J

LOWER COURT Local Court JURISDICTION : LOWER COURT 1039/01 FILE NUMBER(S) : LOWER COURT Magistrate M Jerram JUDICIAL OFFICER :

COUNSEL : P - Mr Cogswell SC with Ms B K Baker D - Mr C Steirn SC with Mr P Hamill SOLICITORS : P - Ms D Perry - DPP D - Mr P Stewart - Nyman Gibson & Co. Solicitors CATCHWORDS : Police - Police powers - Drug detection dog - Sniffer dog - Suspicion - Reasonably suspect - Basis for suspicion - Search - What constitutes search - Assault - Drugs - Identifying presence of drugs by trained drug detection dog - Evidence - Interlocutory order Justices Act 1902, s 104(2), (4), s 109(a) Drug Misuse and Trafficking Act 1985, s 10(1), s 37(2), (3), (4) LEGISLATION CITED : Evidence Act 1995, s 138 Police Powers (Drug Detection Dogs) Act 2001 Suitor's Fund Act 1951, s 6 George v Rockett (1990) 170 CLR 105 Elcham and Anor v Commissioner of Police (2001) 53 NSWLR 7 United States v Chadwick (433 US (1977) 1) United States v Bronstein & anor (521 F.2d 459 (1975)) United States v Fulero (498 F.2d 748 (1974)) United States v Place (462 US 696 (1982)) Doe v Renfrow (451 US 1022 (1981)) United States v Jacobsen (466 US 109 (1984)) United States v Beale (736 F.2d 1289 (1984)) Horton v Goose Creek Independent School District (690 F. 2d 470 (1982)) CASES CITED : Questions of Law Reserved (No. 3 of 1998, (1998) 71 SASR 223)) Hoare v The Queen (1999) 197 CLR 682 Regina v Phillips (1971) 45 ALJR 467 Boughey v The Queen (1986) 161 CLR 10 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 Licul v Corney (1976) 50 ALJR 439 Salter Rex & Co v Gosh (1971) 2 QB 597 Regina v Bozatsis (1997) A Crim R 296 Regina v Cheng (1999) 48 NSWLR 616 Anson v Director of Public Prosecutions [2002] NSWSC 408 DECISION : Orders in accordance with short minutes of order signed by the parties and initialled. These involve the following: (1) Grant leave to amend the summons so as to seek leave to appeal pursuant to s 104(4) of the Justices Act 1902 in respect of the decision of the Magistrate rejecting evidence of the finding of prohibited drugs on the person of the defendant; (2) To the extent that it is necessary to do so, grant leave to appeal pursuant to s 104(4) of the Justices Act 1902 in respect of such decision; (3) Set aside the decision of the Magistrate rejecting evidence of the matter referred to in order (1) above; (4) Quash the decision of the Magistrate dismissing the charges laid against the defendant; (5) Remit each of the charges to the Local Court pursuant to s 109 of the Justices Act 1902 to be dealt with in accordance with the law as set out in the foregoing judgment. Declarations as follows: (1) The Magistrate erred in law in determining that the actions of the Police drug detection dog Rocky constituted a search of the defendant for the purposes of s 37(4) of the Drug Misuse and Trafficking Act 1985; (2) The Magistrate erred in law in the application of s 138 of the Evidence Act 1995 in refusing to admit evidence of the finding of the prohibited drug on the defendant's person; (3) The Magistrate erred in law in dismissing the charges against the defendant. The Court further orders that: (1) The defendant is to pay the plaintiff's costs of and incidental to the summons; (2) The defendant is granted an indemnity certificate pursuant to s 6 of the Suitor's Fund Act 1951, if otherwise entitled.

- 24 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'Keefe J

28 November 2002

13819/01 Director of Public Prosecutions v Glen Paul Darby

JUDGMENT

Introduction 1 This is an appeal by summons under s 104 of the Justices Act 1902 (the Justices Act), in which the Director of Public Prosecutions (as substitute prosecutor for Constable of Police, Trenton Schmidt), seeks an order pursuant to s 109(a) of the Justices Act quashing the decisions and orders of a Magistrate whereby two charges of possessing a prohibited drug that had been laid against Glen Paul Darby (the defendant) were dismissed. 2 The plaintiff also seeks declarations that the Magistrate erred in law in three respects, namely:

(a) in determining that the actions of a police dog named Rocky constituted a search of the defendant for the purposes of s 37(4) of the Drug Misuse and Trafficking Act 1985;

(b) in the application of s 138 of the Evidence Act 1995 in refusing to admit evidence of the finding of the prohibited drugs on the person of the defendant; and

(c) in dismissing the charges. 3 The errors of the Magistrate were said to arise out of the rejection by her of an essential component in the prosecution case, namely what was found by a police officer when he physically searched the defendant, and in determining that the acts of the dog Rocky themselves constituted a search which, in the absence of an appropriate warrant, was illegal. 4 The Crown Advocate, who argued the matter on behalf of the plaintiff, indicated that, depending on the decision of the Court in relation to the matters raised in argument, the plaintiff would seek the Court's leave to amend the summons to seek additional relief pursuant to s 104(4) of the Justices Act.

Background 5 The defendant was charged with two counts of possessing a prohibited drug in contravention of s 10(1) of the Drug Misuse and Trafficking Act 1985. Two charges had been laid because two substances had been found in the possession of the defendant – either in his pockets or in his hands, after he had removed them from his pockets when spoken to by police - at about 1.55am on 25 February 2001 outside the N V Nightclub in Oxford Street, Sydney. There was no issue before the Magistrate as to the identity or quantity of the substances found on the defendant, namely 2.89g of methylamphetamine and 1.9g of cannabis leaf. 6 At the outset of the hearing in the Local Court, an objection was taken to the admissibility of evidence as to the finding by police of the two prohibited drugs in the possession of the defendant. By agreement between the parties, a voir dire examination was held "on the lawfulness of the search by the dog and what flows from it". 7 The primary issue raised before the Magistrate was the lawfulness or otherwise of the actions taken by a police dog named Rocky (Rocky) and what had been done by police as a consequence. In this regard, the question posed was whether what was done by Rocky, who was then under the control of Senior Constable Richardson, amounted to a search, either by the dog itself or as part of the search undertaken by police, other than Senior Constable Richardson and Rocky.

FACTS 8 The evidence established that Rocky had been trained to detect the scent of cannabis. When he did so his training caused him to put his nose in the air, flair his nostrils, and sniff rapidly. He would then follow the scent to its source. When he reached the source of the scent, he was trained to put his nose on such source and sit down beside it. If the scent emanated from a person's pocket, Rocky was trained to put his nose on the pocket and then sit down beside the person. 9 On the night of 25 February 2001, Rocky was under the control of his handler, Senior Constable Richardson, who was then in plain clothes. Rocky and his handler were in Oxford Street, Sydney. To the knowledge of Senior Constable Richardson there were four other police officers in the vicinity. They included Sergeant Gentle and Constable Schmidt. At about 1.55am, Senior Constable Richardson and Rocky were standing outside the N V Nightclub. There were people in Oxford Street lined up to go into the nightclub through which Senior Constable Richardson and Rocky had just walked. As the two of them were standing outside the nightclub waiting for other police to come out of the premises and re-group, Rocky picked up a scent and led Senior Constable Richardson towards the source of such scent, namely the defendant. When Rocky reached the defendant he put his nose on the defendant's pocket. Senior Constable Richardson then identified himself to the defendant, who nonetheless did not come to a halt but walked away. As he did so Rocky walked with him, indicating to Senior Constable Richardson the source of the scent that he had detected by placing his nose on the defendant's pocket. The defendant became agitated. He stopped walking. Rocky stopped too and again put his nose on the defendant's pocket. This occurred on a number of occasions in the course of which the defendant kept pushing Rocky's head away from his pocket. 10 Senior Constable Richardson then observed the defendant put his hands in his pocket and remove some plastic bags. At about that time Sergeant Gentle, who was then accompanied by Constable Schmidt, also asked the defendant to halt. The defendant did so and it would appear that a search of his person was then made by Sergeant Gentle or Constable Schmidt. 11 In the course of cross-examination Senior Constable Richardson confirmed that he saw Rocky "sniffing the pockets of Mr Darby" and "sniffing around Mr Darby's genital organs". He was asked: "Q: And he did this, nudging him? A: Yes, nudging him -- Q: The dog was nudging, using his nose or mouth? A: Yes, I refer to it as pointing with his nose. Q: Alright, but in any effect, he's bunting him with his nose, isn't he? You understand that expression? A: Yes."

and : "Q: Does the dog ordinarily go up and bunt or ferret at a person's pocket or groin if it detects something? A: He'll put his nose on the source of the drug, and sit down beside the person. Q: So it's not simply a case of detecting some sort of scent, and then sitting down near the source without the intervening ferreting, if I can use that word again? A: He puts his nose on the scent of the drug, and then he will sit down. Q: I take it that if the dog amongst a crowd of people merely sat down without putting the nose on the person, or in this case ferreting on the pocket, that you wouldn't be able to say for sure whether it was one person or the other, because of the proximity to people? A: That's correct." 12 Another police witness, Constable Schmidt, was then called, but when he was asked what he observed Rocky do in relation to the defendant, objection was taken and argument ensued as to the legality of what had occurred prior to his intervention. The Magistrate then made the following findings of fact: "In the case of the defendant, the evidence of Senior Constable Richardson was that the dog flared his nostrils, sniffed the air and then, by what he agreed with Mr Stewart for the defendant could be described as bunting and ferreting, sniffed about until he headed straight towards the defendant, at which point that dog then sniffed around the defendant's genital organs, his trousers and his pockets, put his nose onto the outside of the defendant's pocket and sat down. … he remained sitting … with his nose in that position until police officers then searched the defendant, finding illegal substances. I think in fact at that point that the defendant might have pulled the packets from his pocket when asked to do so." 13 The Magistrate held that the actions of Rocky constituted a search and that such search was illegal. She said: "The issue before me is whether the actions of police dog Rocky amounted to a search, and if so, whether the search was illegal or whether the actions merely assisted the police to form reasonable suspicions so that they could carry out a search, having in mind their reasonable suspicions, as required by s 37 of the Drug Misuse and Trafficking Act. … … the issue is a straight legal one as to whether a search, if that it be, preceded the formation of reasonable suspicions by the police, and if so whether the search was legal or not." (T 36) and : "…I find what police dog Rocky did in fact to be a search, and therefore being the cause of the police forming what no doubt then were reasonable suspicions because it proceeds the formation of those suspicions to not come within s 37 of the Drug Misuse and Trafficking Act. " 14 At a later stage in the hearing there was subsidiary argument as to whether the Magistrate should exercise the discretion conferred by s 138 of the Evidence Act 1995 to admit evidence as to the finding of the drugs in the possession of the defendant, notwithstanding that she had determined that they had been revealed as a result of an illegal search. At the conclusion of that argument, the Magistrate gave a further decision in which she said: "…the case is not a clear one. The clear issue is to balance on the one hand the desirability of preventing the widespread use of prohibited drugs, and on the other the preservation of the civil liberties of the individual." 15 In the result, she was not persuaded to exercise the discretion conferred by s 138 so as to admit the evidence, stating as her reason: "In the main, I am convinced by the arguments of the defendant. The search by the dog was illegal, and the nature of the offence not so criminally serious, yet the gravity in overall social terms of the impropriety so great, that its results should not be admissible as evidence in the face of that breach of personal rights." 16 The personal rights to which reference is made in the above passages were those said by the Magistrate to be "recognised by the International Covenant on Civil and Political Rights … which was ratified by Australia without reservation." The relevant portions of that document relied on by the Magistrate were: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation. 2. Everyone has the right to the protection of the law against such interference or attacks." 17 Fundamental to the subsidiary decision by the Magistrate not to exercise the discretion conferred by s 138 of the Evidence Act 1995 was that what was done by Rocky constituted a search and was illegal. Thus the decision in relation to the application of s 138 depends on the answer to the same question as that raised in the argument on the primary issue.

Statutory Provisions

Drug Misuse and Trafficking Act 1985 18 Section 37(4) of the Drug Misuse and Trafficking Act 1985 (the Act) provides: "A member of the police force may stop, search and detain: (a) any person in whose possession or under whose control the member reasonably suspects there is, in contravention of this Act, 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 contravention of this Act, in the possession or under the control of any person. " 19 Section 37 also confers powers on certain members of the police force to enter, search and inspect any vessel "as the member thinks fit" (s 37(2)) and to stop and detain any vessel or aircraft "in which the member reasonably suspects there is any prohibited plant or prohibited drug". (s 37(3)) 20 No criteria are specified in the Act in relation to the formation of the reasonable suspicion that is required before the powers conferred by s 37(3) and (4) may be exercised; nor are there any such criteria specified in the Act as to the basis on which a relevant police officer may think fit to enter, search and inspect a vessel or aircraft. However, it has been held in relation to other legislation concerned with searching and search warrants that to satisfy statutory provisions requiring reasonable suspicion or like state of mind in such a context, what is required is less than is required to establish a fact. As the High Court said in George v Rockett (1990) 170 CLR 105 : "Suspicion … 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking : I suspect but I cannot prove' ". ( supra at 115)

However, the suspicion must be reasonable in the circumstances to enliven the powers conferred by s 37(4) of the Act. ( Elcham and Anor v Commissioner of Police (2001) 53 NSWLR 7 at 16).

Justices Act 1902 21 The appellate regime in force at all times relevant to the present matter was that prescribed in s 104 of the Justices Act. Relevantly it provides: "(2) An informant may appeal under this Division to the Supreme Court against the following, on a ground that involves a question of law alone: (a) (not applicable) (b) an order made by a Magistrate in summary proceedings dismissing an information or complaint. (c) (not applicable) (d) (not applicable) … (4) A defendant or informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings on a ground that involves a question of law alone, but only with the leave of the Court." 22 The decision of the Magistrate to dismiss the charges against the defendant depended on her determination that the search of the defendant that had been conducted included the acts of Rocky and rendered what occurred thereafter illegal. Section 104(2)(b) would be an appropriate source of power for the Court to deal with both the dismissal of the proceedings and the basis in law for such dismissal. However, the decision made by the Magistrate under s 138 of the Evidence Act 1995 is in a different situation. The refusal to admit the evidence in question is, in my opinion, interlocutory and an appeal in respect of it would require leave as contemplated by s 104(4) of the Justices Act. Since the summons does not seek a general order for such further or other relief as may be appropriate, an amendment to the summons would be appropriate.

Analysis 23 The first matter raised on behalf of the defendant was that the plaintiff had no right of appeal. Section 104(2)(b) of the Justices Act permits an appeal only on a ground that involves a question of law alone but, so the argument ran, the decision by the Magistrate was a question of fact, namely "that the touching by the dog whilst under the control of the Constable (handler) on the outside of the (defendant) constituted an assault". In my opinion, this submission fails for a number of reasons. First, the Magistrate did not find that there had been an assault. Second, the Magistrate characterised the issue which she was deciding as a "straight legal one" namely, "whether a search, if that it be, preceded the formation of reasonable suspicions by the police and if so, whether that search was legal or not." The determination of this issue by the Magistrate was that: "… as far as I am able to interpret the law (what the dog did) I believe amounts to a search."

Third, the question decided by the Magistrate under s 37 of the Drug Misuse and Trafficking Act 1985 depended on an interpretation of that Act which involved a question of law within the meaning of s 104(2)(b) of the Justices Act . 24 Senior counsel for the defendant next submitted that what was done by Rocky constituted a search. The search of the defendant began, so he argued, when Rocky detected the scent, or alternatively, indicated its source. Furthermore, he argued that the actions of Rocky constituted an assault, and that as the origin of the information on which Detective Sergeant Gentle and Constable Schmidt formed their suspicion in relation to the defendant was illegal, it was not a proper or lawful basis for a reasonable suspicion. 25 "Search" is an ordinary English word. The Oxford English Dictionary (2nd Ed 1989 p 804-805) defines the verb "to search" when used in relation to a person to mean "to examine by handling, removal of garments, and the like to ascertain whether any article (usually, something stolen or contraband) is concealed in his clothing". In the New Oxford Dictionary of English the word search, when used as a verb, conveys trying to find something by looking or otherwise seeking carefully and thoroughly. (1998 Ed, p 1677). The Macquarie Dictionary defines the verb "to search" as meaning to go through or look through carefully in seeking to find something; to examine (someone) for concealed objects by going through their pockets. (Third Edition, p 1916) In Chambers English Dictionary the same verb is defined as meaning to explore all over with a view to finding something; to examine closely; to examine for hidden articles by feeling all over. (1988 Edition, p 1328) In Collins Concise English Dictionary the word "search" when used as a verb is defined as meaning to look through (a place, etc) in order to find someone or something (Australian Edition 1984, p 1040). 26 Relevantly the generally accepted connotation of search is that it involves looking carefully in order to find something that is hidden. When it relates to a person, it carries the implication of some physical intrusion onto the person (for example by patting down the clothing of such person) or into the clothing or body of the person the subject of the search. 27 The concept of what constitutes a search has been the subject of a large number of decided case in the United States as a result of the protections afforded by the Fourth Amendment to the Constitution of the United States. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Being a constitutional protection, its ambit has been widely interpreted. It has been held that it "protects people from unreasonable government intrusions into their legitimate expectations of privacy." (United States v Chadwick (433 US (1977) 1 at 7) However, even under such a constitutional safeguard, the actions of a sniffer dog in detecting the presence of drugs have been held not to constitute a search. 28 In United States v Bronstein & anor (521 F.2d 459 (1975)) the Second Circuit of the United States Court of Appeals considered a case in which a quantity of marijuana had been detected in the baggage of the respondents through the use of a police sniffer-dog trained to detect the presence of such drug. The dog (or "canine cannabis connoisseur", as she was described in the findings of fact) was given the opportunity to walk amongst certain luggage at an airport. She reacted positively to some of such luggage by sniffing vigorously and nipping and biting at two of the cases. When the luggage was retrieved, the person who did so identified it as his and was arrested. The narcotics agents involved thereafter opened it and found marijuana, amongst which had been placed mothballs to disguise the odour. The appellants (Bronstein & anor) contended that the actions by the narcotics agents constituted warrantless search and seizure without probable cause as a result the use of a trained German Shepherd dog. The argument by the appellants depended upon the proposition that the sniffing, nipping and biting of the luggage by the dog at the airport was a search within the meaning of the Fourth Amendment. 29 The court held: "We find no search or seizure violative of the Fourth Amendment." ( supra at 462). 30 A like submission had previously been made to the District Court of Columbia Circuit in United States v Fulero (498 F.2d 748 (1974)), in which the submission was described as "frivolous". 31 In United States v Place (462 US 696 (1982)) the Supreme Court of the United States considered the actions of a trained narcotics detection dog that reacted positively to a suitcase in the possession of the defendant (Place). Using the response of the dog, the narcotics agents obtained a search warrant in respect of the defendant's suitcase and on opening it discovered cocaine. O'Connor J (with whom Burger CJ, White, Howell, Rehnquist and Stevens JJ agreed), delivered the opinion of the Court. She said that the actions of the dog did not infringe the constitutional guarantees contained in, or the protections afforded by, the Fourth Amendment. 32 Having considered the characteristics of the activities of the narcotics detection dog, including its non-intrusive character, limited information that results, etc, O'Connor J said: "In these respects, the canine sniff is sui generis … therefore, we conclude that the … exposure of respondent's luggage, which was located in a public place, to a trained canine – did not constitute a "search" within the meaning of the Fourth Amendment." ( supra at 707) 33 Brennan J, who thought it unnecessary to address the issue (supra at 719), concurred in the result but adhered to the view that he had expressed in a dissenting opinion in Doe v Renfrow (451 US 1022 at 1025-1026 (1981)) (see below). Blackmun J (at 724) concurred in the judgment of the court but also thought it was unnecessary to decide, in the case then before the court, what did or did not constitute a search (at 723). 34 In United States v Jacobsen (466 US 109 (1984), the Supreme Court characterised United States v Place (supra) as holding that subjecting luggage to a sniff test by a trained narcotics detection dog was not a search within the meaning of the Fourth Amendment (supra at 123 – 124). Stevens J (with whom Burger CJ. Blackmun, Powell, Rehnquist and O'Connor JJ concurred) approved the reasoning of O'Connor J in United States v Place (supra) referred to above. 35 The conclusions of the Supreme Court as expressed by O'Connor J and Stevens J were referred to in United States v Beale (736 F.2d 1289 (1984)). In that case, the United States Court of Appeals, Ninth Circuit, adopted both the decision and the reasoning of O'Connor J in United States v Place (supra), and said that, whether the statement by O'Connor J was a holding or dictum, the Supreme Court in the later case of United States v Jacobsen (supra) had clearly directed lower courts to follow such statement (at 1291). The United States Court of Appeals, Ninth Circuit, then said: "The essence of the Supreme Court's expositions in Place and Jacobson , which we apply here, is that the investigative technique employed here is not considered to be a 'search' …" (supra at 1291) 36 In some earlier cases, eg Horton v Goose Creek Independent School District (690 F. 2d 470 (1982), Fifth Circuit), Doe v Renfrow (supra (1981)), it had been held or said that the use of a sniffer dog in relation to individuals may be offensive at best, or harrowing at worst to "the innocent sniffee," notwithstanding that the rubric in the Fourth Amendment is the same in relation to persons as it is to objects – whether such objects be houses, papers or other effects. 37 In Horton v Goose Creek Independent School District (supra) the court was of the view that in the long list of cases cited : "The majority view is that the sniffing of objects by a dog is not a search" (at 476);

and that: "… the courts have concluded that the sniffing of a dog is 'no different' or that the dog's olfactory sense merely 'enhances' that of a police officer in the same way that a flashlight enhances the officer's sight." (at 477) 38 However, in determining in 1982, i.e. before the decision in 1984 in United States v Jacobsen (supra) that the use of a sniffer dog in relation to school students in the circumstances of that case breached the Fourth Amendment, the United States Court of Appeals, Fifth Circuit, founded its decision on two bases. First, on the student's expectations of privacy (at 478) and secondly, on the nature of the search which was, in the circumstances, unreasonable. (at 481-482) 39 In Doe v Refrow (supra) the court below had upheld as constitutional the use of a sniffer dog in relation to a teenage school girl. An application was made to the Supreme Court of the United States for a writ of certiorari in relation to such decision. The court denied certiorari, with Brennan J dissenting. Thus the majority decision favoured the application of the same rubric to persons as that which applied to property. 40 In this regard it should be noted that the United States commentary on Doe v Renfrow (supra) (W R LaFave Search and Seizure – A Treatise on the Fourth Amendment, Chapter 2.2(f) p 280 et seq and 1984 suppliment at pp 83-84) treats the sniffing of a person as objectionable under the Fourth Amendment because it amounts to "a public accusation of crime". In my opinion, such a basis of distinction, even if applicable in the United States, is not applicable under the law of Australia. Furthermore, it is clear from Chapter 2.2 of the commentary (pp 281-283) that although "a few courts" in the United States have held that reliance on the olfactory capabilities of a dog to detect that which a law enforcement officer could not discover by his own sense of smell constitutes a search, "most courts … have either held or assumed otherwise, sometimes characterising the defendant's argument to the contrary as frivolous" (at 282-283) 41 The distinction between the use of trained dogs to sniff objects on the one hand and people on the other which has been drawn by some lower courts and in dissenting judgments in the United States has not been applied in Australia. The logic of the majority judgments in those United States decisions that deal with objects has prevailed in Australia in relation to people. 42 In Questions of Law Reserved (No. 3 of 1998) (1998) 71 SASR 223 , the question of the use of a sniffer dog to detect the presence of drugs was considered. The principal judgment was delivered by Olsson J with whom Prior J agreed. Olsson J, said: "In essence the situation, apropros the accused, was, conceptually, no different than if he happened to be at the bus depot holding the suitcase and the police officer lawfully, but casually, walked past with a sniffer dog who reacted positively when it came near the suitcase. In both instances, the reaction of the sniffer dog was plainly adequate to arouse in the mind of the police officer a reasonable apprehension that the accused was in possession of an illegal drug – so as to warrant an actual search of the suitcase itself." ( supra at 226) 43 He went on to explain why the finding of the trial judge that "…the search of the accused's luggage began when the dog commenced sniffing around it…" was an error, saying : "…it is incorrect to say that a mere sniffing of the scent emanating from the suitcase in the air in close proximity of the suitcase constituted a "search" of it. According to its normal connotation the word "search" implies some physical intrusion into what is searched, for the purpose of examining what is in it. The word is not apt to describe the mere detection of an odour generated by the content of the item searched, which is released into the atmosphere surrounding it without any positive acts of a third person to effect that release. If it were otherwise, ridiculous questions would arise as to how close one would need to get to an item generating an odour before one could be said to be searching it." ( supra at 226)

and he applied those United States authorities which dealt with objects, rather than people. He did so on the basis that insofar as people were concerned, any contrary decisions in the United States depended upon reasonable expectations of privacy of the individual. I agree. Such an approach is a reflection of specific constitutional concepts in the United States that have no counterpart in Australia either by way of constitutional guarantee or in relevant legislation. 44 Having concurred with the reasons given by Olsson J, Prior J added: "I agree in particular with the submission put by the Director of Public Prosecutions that mere sensory perception, whether by eye, ear or nose, cannot of itself constitute a search. It follows that odours which emit from a person's bag are exposed to the plain perception of the public at large. Thus a dog sniffing the area around a bag or parcel does not effect a search of that bag or parcel. It could perhaps be described as an act of identification, but certainly not a search." (supra at 224) 45 Williams J in holding that the use of the sniffer dog was not unlawful said: "Sniffing around the luggage does not, relevantly constitute 'search'." (supra at 227) 46 Special leave to appeal from this decision was sought from the High Court. This was refused sub nom Hoare v The Queen (1999) 197 CLR 682 per Gleeson CJ and Callinan J. 47 One way of testing the conclusion expressed by Olsson J in paragraphs 42 and 43 above would be to take a situation in which an officer of police has a particularly sensitive sense of smell, or experienced a particular reaction to the presence of a certain substance, for example, cannabis. People who have allergies may well be in the latter category. Such particular characteristics or sensitivities may well cause the officer in question to form a suspicion as to the presence and hence possession of cannabis in a particular place, or on a particular person. In those circumstances there would, in my opinion, be nothing unreasonable about the formation by such officer of the suspicion appropriate to found a right of search. Having formed such suspicion, the powers conferred by s 37 of the Act could be exercised. I do not think that it could be said that the search began when he detected the odour of the cannabis. The detection of the odour is what caused him to form the relevant suspicion that proceeded and gave rise to the search. Nor do I think that the detecting by him of such odour before he formed a suspicion as to the presence of cannabis would render illegal any actions of his in searching the person he had detected as the source of such odour. 48 Another situation could be one in which the odour of cannabis is so strong, and its source so obvious, that even a person without special sensitivities or particular reactions would become aware of the presence and possession of the drug. In my opinion a search of a person based on such perception would not be unreasonable, and would not render a search of the person on whom the odour was detected, illegal. 49 The formation of a reasonable suspicion may not depend upon personal observation or sensation. It may depend, for example, on information conveyed to a police officer from some other source. That source may be another police officer. That source may be a private citizen. That source may be a dog. The reactions of the dog in such a case would be no more than a basis for the formation of a reasonable suspicion by the police officer. It does not seem to me that there is any difference in principle between information conveyed to a police officer by a fellow police officer or a private citizen on the one hand, and information conveyed to the police officer by the reactions of a trained drug detection dog on the other. 50 Senior counsel for the defendant further submitted that what was done by Rocky and what was done by Sergeant Gentle and Constable Schmidt constituted a search conducted as a result, and during the course, of a trespass to the person. In support of this submission he argued that whilst force is necessary for there to be trespass, such force can be as slight as a mere touch. However, as I have already determined, what was done by Rocky did not constitute a search. Furthermore, there is no finding by the Magistrate that what was done by Rocky constituted an assault. Indeed, the finding by the Magistrate was that Rocky "sniffed around the defendant's genital area, his trousers and his pockets and put his nose directly onto the outside of the defendant's pocket and sat down." 51 The Magistrate' decision did not turn upon there having been an assault. There is no suggestion in the finding of the Magistrate that there was any assault. There is no finding of the application of any force. The finding is that there was a "sniffing around" and a placing of the "nose onto the outside of the defendant's pocket". The basis of the Magistrate's decision was that the actions of the dog constituted a search. 52 In the course of the submissions made on behalf of the defendant, much use was made of the word "bunting". The evidence in relation to the use of that word at the hearing before the Magistrate is set out in paragraph 11 above, from which it can be seen that Senior Constable Richardson adhered to his evidence that the dog merely sniffed in the region of the defendant's genital organs and pocket, and placed his nose on the outside of the defendant's pocket. 53 The argument in support of the claim that what had been done by the dog constituted an assault depended upon the dog having "bunted" the defendant. Bunting is normally understood in this day and age as the cloth or like flags and colourful festive decorations that are frequently seen at Christmas and sometimes at Easter in shopping centres or at other times in used car sale yards. However, when used in relation to a person or animal it has the meaning of butting with the head or horns. The Magistrate did not find that Rocky had bunted (in the sense of head-butted) the defendant. Indeed, her finding was that "the dog flared its nostrils, sniffed the air and then … bunting and ferreting, sniffed about until he headed straight towards the defendant" (italics added). Thus, the bunting and ferreting occurred when Rocky was at some remove from the defendant and before "he headed straight towards the defendant". The finding by the Magistrate is inconsistent with other than a sniffing around by Rocky in the vicinity of certain areas of the defendant's body and clothing. It is certainly not a finding of assault. 54 As was conceded on behalf of the defendant, not every touching of an individual, even by another individual, constitutes an assault. No doubt, he had in mind statements of the law such as that which is to be found in Hawkins' Pleas of the Crown (1716), Ch LXII, s2, p 134 which refer to actions "actually done to the Person of a Man, in an angry or revengeful or rude or insolent manner as by Spitting in his Face, or any Way touching him in anger or violently jostling him out of the way." (See Regina v Phillips (1971) 45 ALJR 467 at 472; Boughey v The Queen (1986) 161 CLR 10 at 25, 38-39). As Olsson J said, in my opinion correctly, in Questions of Law Reserved (No. 3 of 1998) (supra at 227), a mere act of sniffing in the vicinity of a person or object involves no trespass. Just as "the eye cannot … be guilty of a trespass" (Entick v Carrington (1765) 19 State Tr 1029 at 1067 per Lord Camden CJ), "nor can the ear" (Malone v Commissioner of Police (No. 2) (1979) 2 All ER 620 at 640 per Megarry V-C), nor can the sniffing of a nose, even if the nose be that of a trained police drug detection dog. 55 In the course of giving illustrations as to why the touching of the defendant by Rocky on his pocket or sniffing in the area of his genital organs constituted an assault and for that reason part, or the origin, of an illegal search, senior counsel for the defendant submitted that: "If your Honour were to do as this dog did and nuzzle the defendant's genitals, it would be an indecent assault." 56 It is unnecessary for the purposes of this decision to resolve that question. The line between that which is merely eccentric and that which constitutes an assault – whether indecent or otherwise – need not be drawn in this case. There was no finding of assault. Furthermore, acts that might constitute an indecent assault if perpetrated by one human being on another, may well be characterised quite differently if performed by one dog on another, or by a dog on a human. When a "crotch nuzzle" (as senior counsel for the defendant so delicately described the relevant actions of Rocky) is performed by a dog in relation to a human being, it may be no more than a conventional, friendly, social gesture with no hostile intent, and unlikely to constitute an assault – whether indecent or otherwise. 57 In the absence of any finding of assault, the submission made on behalf of the defendant and referred to in paragraph 50 above fails. On the evidence before the Magistrate the search that was carried out by Sergeant Gentle or Constable Schmidt followed the formation by them of the opinion necessary to exercise the powers conferred by s 37(3) of the Act. The formation of that opinion was not vitiated by the fact that the information on which the relevant opinion was based resulted from the actions of Rocky. 58 In my opinion, the Magistrate erred in law in finding that the actions of Rocky constituted a search and thus rendered the actions of Sergeant Gentle and Constable Schmidt illegal. 59 During the course of the hearing, reference was made to the Police Powers (Drug Detection Dogs) Act 2001 (Act No 115 of 2001). This Act was assented to on 14 December 2001 and proclaimed to commence on 22 February 2002. It was common ground between the parties that such Act had no application in the present case. However, it should be noted that the Act uses the term "general drug detection" which is defined as "the detection of prohibited drugs or plants in possession of a person, except during the search of a person that is carried out after a police officer reasonably suspects that the person is committing a drug offence." The application of this Act and its impact, if any, in relation to s 37 of the Drug Misuse and Trafficking Act 1985 is yet to be tested, but such considerations do not impact on the outcome of this matter.

Exercise of discretion under s 138 of Evidence Act 1995 60 It is necessary to consider the refusal by the Magistrate to exercise the discretion conferred by s 138 of the Evidence Act 1995 so as to permit evidence to be adduced from Constable Schmidt of what he found in the possession of the defendant in Oxford Street in the early hours of 25 February 2001. 61 Argument concerning the exercise of the discretion conferred by s 138 arose only because the Magistrate had already determined (to use her words) that "the actions of the police dog were a form of search, such search proceeding and indeed creating the formation of the reasonable suspicion required under (the Act) … and therefore … an illegal search." 62 Section 138 requires that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety, or a contravention of an Australian law should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been so obtained. 63 Basal to the Magistrate's decision under s 138 was a question of law, namely the characterisation of the actions of Rocky and the police as an illegal search. As indicated in paragraph 58 above, I am of opinion that that such conclusion was erroneous in law. As a consequence, no question of exclusion of the evidence, or the exercise of any discretion to admit it pursuant to s 138 arose. The decision by the Magistrate to reject the evidence was therefore erroneous in law and should not stand. Whether such decision constitutes an interlocutory order within the meaning of s 104 (4) of the Justices act was not argued. However, it is not an easy matter (Regina v Lethlean (1995) 83 A Crim R 197, Licul v Corney (1976) 50 ALJR 439, Salter Rex & Co v Gosh (1971) 2 QB 597, Regina v Bozatsis (1997) A Crim R 296, Regina v Cheng (1999) 48 NSWLR 616; and see Anson v Director of Public Prosecutions [2002] NSWSC 408, 10 May 2002, unreported, in which these and other relevant authorities are gathered). For more abundant caution it would be appropriate for there to be an amendment to the Summons to seek leave to appeal in respect of such decision

SUMMARY 64 For the foregoing reasons, I am of opinion that the decisions by the Magistrate in relation to s 37(4) of the Drug Misuse and Trafficking Act (1985), the Evidence Act 1995, s 138 and the dismissal of the charges against the defendant involved errors of law and should be set aside and the matters remitted to the Local Court for determination in accordance with the law as set out in this judgment. However, because of the need to amend the Summons, I think it appropriate to adjourn the making of the formal orders for a short period. 65 I direct the parties to bring in Short Minutes of Order at 2 p.m. on 29 November 2002 and adjourn the further hearing accordingly.

29 November 2002 66 I make orders in accordance with short minutes of order signed by the parties and initialled by me. These involve the following:

(1) Grant leave to amend the summons so as to seek leave to appeal pursuant to s 104(4) of the Justices Act 1902 in respect of the decision of the Magistrate rejecting evidence of the finding of prohibited drugs on the person of the defendant.

(2) To the extent that it is necessary to do so, grant leave to appeal pursuant to s 104(4) of the Justices Act 1902 in respect of such decision.

(3) Set aside the decision of the Magistrate rejecting evidence of the matter referred to in paragraph 66(1) above.

(4) Quash the decision of the Magistrate dismissing the charges laid against the defendant.

(5) Remit each of the charges to the Local Court pursuant to s 109 of the Justices Act 1902 to be dealt with in accordance with the law as set out in the foregoing judgment. 67 I make declarations as follows:

(1) The Magistrate erred in law in determining that the actions of the Police drug detection dog Rocky constituted a search of the defendant for the purposes of s 37(4) of the Drug Misuse and Trafficking Act 1985.

(2) The Magistrate erred in law in the application of s 138 of the Evidence Act 1995 in refusing to admit evidence of the finding of the prohibited drug on the defendant's person.

(3) The Magistrate erred in law in dismissing the charges against the defendant. 68 The Court further orders that:

(1) The defendant is to pay the plaintiff's costs of and incidental to the summons.

(2) The defendant is granted an indemnity certificate pursuant to s 6 of the Suitor's Fund Act 1951, if otherwise entitled. **********

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