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.