Darby v Director of Public Prosecutions [2004] NSWCA 431

Darby v Director of Public Prosecutions [2004] NSWCA 431

Rocky’s actions in physically bunting, ferreting, and persistently pressing his nose against the appellant’s pocket constituted a search and battery through the agency of the police, and without evidence that reasonable suspicion had formed prior, the search was not authorised under s 37(4)(a) of the Drug Misuse and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 November 2004
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part. Supreme Court orders varied; charges remitted to Local Court for rehearing in accordance with judgment. No order as to costs of appeal.
Legal Topics
['police Powers' 'search and Seizure' 'admissibility of Evidence' 'drug Detection Dogs' 'battery' 'reasonable Suspicion' 'trespass to Person']
['criminal Law' 'evidence' 'administrative Law' 'torts'] ['police Powers' 'search and Seizure' 'admissibility of Evidence' 'drug Detection Dogs' 'battery' 'reasonable Suspicion' 'trespass to Person']

Source-derived case record

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the actions of a drug detection dog constitute a search under s 37(4)(a) of the Drug Misuse and Trafficking Act 1985 (NSW)' 'Whether the police search was authorised by reasonable suspicion' 'Whether the actions of the dog amounted to battery or trespass to the person' "Whether evidence obtained as a result of the dog's actions should be excluded under s 138 of the Evidence Act 1995 (NSW)"]

Ratio Decidendi

Rocky’s actions in physically bunting, ferreting, and persistently pressing his nose against the appellant’s pocket constituted a search and battery through the agency of the police, and without evidence that reasonable suspicion had formed prior, the search was not authorised under s 37(4)(a) of the Drug Misuse and Trafficking Act. The magistrate’s exclusion of the evidence consequently was not shown to be erroneous and the dismissal of charges should stand; majority (Giles JA) prevails on substance, with Ipp JA and McColl JA agreeing in the orders.

Court Disposition

Appeal allowed in part. Supreme Court orders varied; charges remitted to Local Court for rehearing in accordance with judgment. No order as to costs of appeal.

Orders

  • ["Set aside the order made by O'Keefe J remitting each of the charges to the Local Court and substitute: 'Remit each of the charges to the Local Court pursuant to s 109 of the Justices Act 1902 (NSW) to be dealt with in accordance with law as set out in the judgment of this Court.'" "Set aside declaration (2) made...