61 NSWLR 558 Reported Decision : 150 A Crim R 314 (2004) Aust Torts Reports 81-775 New South Wales Court of Appeal CITATION : Darby v Director of Public Prosecutions [2004] NSWCA 431 revised - 29/11/2004 HEARING DATE(S) : 15 September 2004 JUDGMENT DATE : 26 November 2004 JUDGMENT OF : Giles JA at 1; Ipp JA at 93; McColl JA at 140 DECISION : (a) Set aside the order made by O'Keefe J remitting each of the charges to the Local Court and substitute the order: 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; (b) Set aside declaration (2) made by O'Keefe J; (c) Make no order as to the costs of the appeal. CATCHWORDS : Police - use of sniffer dog - indicated prohibited substance in pocket - put nose on pocket - "bunting and ferretting" - followed by police searching pockets and finding substance - admissibility of evidence of search by police - (by majority) dog's actions were not a search - no findings upon dog's actions amounting to a trespass to the person - or on formation of reasonable suspicion - remission for further hearing - (in dissent) dog's actions were a search and a trespass to the person - no remission as to formation of reasonable suspicion. D Bond v United States 529 334 (2000); Boughey v The Queen (1986) 161 CLR 10; Bunning v Cross (1978) 141 CLR 54; Collins v Wilcock (1984) 3 All ER 375; Director of Public Prosecutions v Taylor (1992) QB 645; Fagan v Metropolitan Police Commissioner (1969) QB 439; Gambriell v Caparelli (1975) 54 DLR (3d) 661; CASES CITED : George v Rockett (1990) 170 CLR 105; Hoare v The Queen A23/1998 (18 June 1999); Kyllo v United States 533 US 27 (2001); The Queen v Phillips (1971) 45 ALJR 467; Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; R v Knight (1988) 35 A Crim R 314; R v Mansfield Justices, ex parte Sharkey (1985) QB 613; R v Williams (1983) 78 Cr App R 276; Terry v Ohio 392 US 1 (1968). PARTIES : Glen Paul Darby - Appellant Director of Public Prosecutions - Respondent FILE NUMBER(S) : CA 41237/02 COUNSEL : C Steirn SC & P Hamill - Appellant R D Cogswell SC & J A Quilter SOLICITORS : Nyman Gibson Stewart, Darlinghurst - Appellant Director of Public Prosecutions - Respondent LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 13819/01 FILE NUMBER(S) : LOWER COURT O'Keefe J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41237/02 SC 13819/01 GILES JA IPP JA McCOLL JA Friday 26 November 2004 DARBY v DIRECTOR OF PUBLIC PROSECUTIONS Judgment 1 GILES JA: The appellant was charged with possession of methylamphetamine and cannabis leaf. The substances were found after the detection of cannabis by a police drug detection dog. In the Local Court the magistrate ruled that the actions of the dog constituted an unlawful search, and that evidence of finding the substances should not be admitted. The prosecution offered no further evidence and the charges were dismissed. The respondent appealed to the Supreme Court, contending that the magistrate had erred in law. The judge upheld the appeal. In this further appeal the appellant seeks to reinstate the position before the magistrate. 2 The material events occurred prior to the commencement of the Police Powers (Drug Detection Drugs) Act 2001 on 22 February 2002, and the position is unaffected by that legislation. The charges 3 Before the Local Court were four charges, the two possession charges and charges referred to in the appeal papers as assault officer and resist police. Only the possession charges are presently relevant. 4 The precise charges were not disclosed in the appeal papers. It appears that they were charges of possession of a prohibited substance contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 ("the Act"). The drugs were alleged to have been found in the appellant's possession at about 1.55 am on 25 February 2001 outside the NV Nightclub in Oxford Street, Sydney. The proceedings before the Magistrate 5 The informations came before Deputy Chief Magistrate Jerram on 31 October 2001. The police prosecutor was Sergeant Huolohan. The appellant was represented by Mr Stewart. 6 Early in the proceedings it was said - "PROSECUTOR: Your Worship, I believe my friend has a couple of matters he wishes to raise with your Worship. They are in the nature of the possess matters, it was a matter that involved one of these drug detection dogs. So it may be that we run it on certain issues my friend wishes to raise and have those points decided by your Worship before we hear the whole case but he can raise those. STEWART: That's my submission, your Worship. We just enter into a voir dire on the lawfulness of the search by the dog and what flows from it." 7 This assumed evidence the admissibility of which was to be determined by entering into a voir dire. There was no articulation of what the evidence was. There was no further explanation of what was meant by the lawfulness of the search by the dog, or of what flowed from it. 8 Evidence was given on the voir dire by Senior Constable Richardson, the handler of Rocky the dog. He was one of a team of police patrolling on the night of 24-25 February 2001, the other police including Sergeant Gentle and Constable Schmidt. 9 Senior Constable Richardson gave evidence in chief of the training and abilities of a drug detection dog and of the actions of Rocky indicating cannabis in the appellant's pocket; I will come to the evidence so far as necessary later in these reasons. The evidence of the events of the night was cut short, the transcript recording - "Q. You have indicated that you then moved away with the dog and left the immediate area. Did you witness anything further that happened between the defendant and the police that were still present? A. Yes. I observed the defendant put his hands into his pockets and remove some plastic bags. I was --- STEWART: Your Worship, if I can just interrupt. At this point I think we're going beyond what the question will be in the voir dire. BENCH: Alright, do you want to go to the voir dire now? STEWART: As I understand it, we're in the voir dire and there's no need for the witness to continue beyond that point at this time. BENCH: Alright, is that your understanding too? PROSECUTOR: I accept that yes." 10 Senior Constable Richardson was cross-examined, and again I will come to the evidence so far as necessary later in these reasons. The cross-examination did not take the events of the night beyond the point where the appellant put his hands into his pockets and removed some plastic bags. 11 At the close of the cross-examination the transcript recorded that the examination on the voir dire concluded. By agreement, some further evidence was given by Senior Constable Richardson going to the other charges. 12 Evidence was then given by Constable Schmidt, also on the voir dire. In evidence in chief he spoke of a briefing before the night's patrol, and he was then asked about earlier occasions on the night on which Rocky had detected the presence of substances on persons. Objection was taken. The transcript recorded that there was legal argument, without recording the argument, and then - "BENCH: The matter that we're arguing at the moment on the voir dire and we've asked Constable Schmidt to step outside is whether Constable [sic] Huolohan is entitled to call evidence from him about what he saw earlier in the evening that helped him form what he says is a reasonable suspicion. Because that actually got to the nub of it, in a sense, I'm inclined Mr Stewart to allow that question, because I would prefer to hear all the evidence on the voir dire and then hear yours and Sergeant Huolohan's total argument on the illegal search issue, because I don't know that I can really say that his experience on that night is irrelevant to how he formed the reasonable suspicion. But in saying that, I don't want to be taken to mean that I've formed any view as to the legality or otherwise of the search, but I want to be able to hear that evidence, then hearing your total arguments. Alright, can you ask Constable Schmidt to come in. PROSECUTOR: Your Worship, if I could just, on one brief point, it may even shorten it further. It would seem from what I've heard my friend say that the whole issue is the legality of the dog going up to people and what he perceives as searching them, as opposed to then the reasonable suspicion formed by the police officer to conduct a search. If that's the case, I don't need to call the officers, because their evidence is secondary. I concede what my friend has put and the officer does, the dog was stationary, we've heard it from Senior Constable Richardson what the dog did on the night, it was stationary, the defendant went past, he picked up a scent, he followed, he then nudged where the scent was on the person, sat, the person kept going, he got up and did it again and there was contact. There's evidence of that. If they're the facts that my friend would then – we can both legally argue whether that is therefore then legal for the dog to have done that, I don't think I need to call the other evidence of what the officer then formed his reasonable suspicion on to conduct the search STEWART: I agree." 13 The references to reasonable suspicion came from the authority to search conferred by s 37(4)(a) of the Act, for which it was necessary that the police officer reasonably suspect possession of a prohibited substance. Section 37(4)(a) provided - "(4) 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) …" 14 No further evidence was taken on the voir dire. Her Honour immediately heard submissions from Mr Stewart and then from the police prosecutor. She gave her decision after the luncheon adjournment. 15 Her Honour described the facts as follows - "The way in which that charge came about was this. Senior Constable Richardson, a police officer trained in dog handling, and other police officers took up positions near to the nightclub, that being an area well known to be frequented by users of drugs and to contain a large number of nightclubs, in order to detect, as of course is in one sense the duty of police officers, illegal drugs. As it was trained to do, police dog Rocky accompanying Senior Constable Richardson and other police on that night, on a number of occasions, Senior Constable Richardson's memory was up to perhaps ten prior to the arrest of the defendant during the night, sniffed the airwaves and indicated the present of illegal substances. In the case of the defendant, the evidence of Senior Constable Richardson was that the dog flared its 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 area, his trousers and his pockets and put his nose directly onto the outside of the defendant's pocket and sat down. As I understand it, he remained sitting, having been told he was a good dog, which is part of the required handling, 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." 16 It will be noted that her Honour said that Rocky remained sitting - " … 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." 17 There was some difficulty in the present appeal in ascertaining the evidence the admissibility of which her Honour's ruling decided. I think it became common ground, for which there was support in this passage and in some things later said, that her Honour was not ruling on the admissibility of evidence of the actions of Rocky indicating cannabis in the appellant's pocket, but on unstated further evidence of the police officers finding the substances in the appellant's possession. Whether the evidence of the appellant removing some plastic bags from his pockets was part of the evidence of finding the substances in the appellant's possession remained obscure. 18 The magistrate said - "The issue before me is whether the actions of police dog Rocky amount to a search and if so, whether that 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 ." 19 Her Honour discussed the submissions. She said that she preferred the arguments of Mr Stewart to those of the police prosecutor. She had stated the argument of Mr Stewart as - "Mr Stewart for the defendant claims that the actions of the dog Rocky went far beyond those described in s 1 of the Police Service Administrative Act as being kept, and I am paraphrasing, for helping police officers to perform the duties of police officers and that those actions amounted per se to a search. His argument is that the way in which the dog had been trained to behave was not mere detection and identification, as in sniffing the air, but was an actual search in that the dog sought out in his case the defendant and physically touched him. In other words, it was extending the ability of police officers to do something that they could not do themselves and not mere assistance, dogs quite clearly having a hugely greater sensory perception than humans and being trained in this case to use that in a particular way for the detection of drugs." 20 Her Honour noted that both parties had referred her to the decision of the Full Court of the South Australian Supreme Court in Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223. The facts in that case did not go beyond the dog sniffing "around" luggage in a bus. The trial judge held that the sniffing amounted to a search. The Full Court held that it did not. She said that Mr Stewart "suggests that the trial judge in that matter was correct in arguing that the sniffing of dogs of luggage … was in fact a search and it therefore preceded the forming of a reasonable suspicion by the police and was therefore illegal". She said that Question of Law Reserved (No 3 of 1998) was distinguishable on the facts, without elucidation, and also "to an extent in law because the bus driver had given permission to search so the search was not illegal"; she said also that a search of suitcases by a dog was "not equal" to the search of a person. 21 Her Honour found - " … 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 precedes the formation of those suspicions to not come within s 37 of the Drug Misuse and Trafficking Act ." 22 She said a little later - "But quite frankly, as far as I am able to interpret the law, primarily because the dog not only detects and identifies but then uses its very skilled training to go towards the source of the scent, in this case a person, and actually quite specifically touch the source of that scent on that person, I believe amounts to a search and is of course, and I do not think the police officers would disagree with that, is the reason then that they form their suspicion and then search themselves." 23 It appears that her Honour's decision did not involve acceptance of Mr Stewart's arguments so far as he submitted, with reference to the trial judge in Question of Law Reserved (No 3 of 1998), that sniffing around the appellant was a search. Her Honour's decision was founded on Rocky seeking out the appellant and touching him. 24 After the magistrate gave her decision there was discussion of, and agreement upon, an adjournment of all the charges. Her Honour referred amongst other things to hearing the parties "on 137 of the Evidence Act". Section 137 of the Evidence Act 1995 provides that a court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. From subsequent events, her Honour meant s 138 of the Evidence Act. The adjournment was to 7 February 2002. 25 In a manner not disclosed, the proceedings came before her Honour again on 16 November 2001 for submissions on s 138 of the Evidence Act. It provides in s 138(1) - "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, 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." 26 The magistrate reserved her decision, and gave it on 21 November 2001. Although unstated, the context was admission of further evidence of the police officers finding the substances in the appellant's possession, being evidence obtained "in consequence of an impropriety or of a contravention of an Australian law" (s 138(1)(b)). 27 Her Honour first summarised her earlier decision as a decision - " … that the actions of the police dog were a form of search, such search preceding and indeed creating the formation of the reasonable suspicion required under s 37(4)(a) of the Drug Misuse and Trafficking Act of 1985, for a police officer to stop, search and detain any person for prohibited drugs, and was therefore in my view an illegal search." 28 As will appear, it is not necessary to describe the reasoning to her Honour's decision. She concluded her reasons - "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. The prosecution has not persuaded me to exercise my discretion to admit the evidence obtained by means I have found to be improper and in contravention of the meaning of s 37 of the Drug Misuse and Trafficking Act . I decline to do so." 29 Thereupon the police prosecutor offered no further evidence, and the two charges were dismissed. 30 In summary, her Honour considered that Rocky's actions in seeking out the appellant and touching him were a search which preceded the formation of a reasonable suspicion which, pursuant to s 37(4)(a) of the Act, would entitle the police to search the appellant. Being without the authority of s 37(4)(a), the search was illegal. In the balancing of desirability and undesirability under s 138 of the Evidence Act, the scales tilted against admission of the evidence of the police officers finding the substances in the appellant's possession. The appeal to the Judge 31 Constable Schmidt was the informant. He appealed to the Supreme Court pursuant to s 104 of the Justice's Act 1902. The respondent took over the appeal (see s 9 of the Director of Public Prosecutions Act 1986). The appeal was heard by O'Keefe J on 29 May 2002. His Honour gave his decision on 28 November 2002. 32 Appeal lay under s 104(2)(b) against "an order made by a Magistrate in summary proceedings dismissing an information or complaint"; alternatively under s 104(4), by which appeal lay with leave against "any interlocutory order that is made by a Magistrate in summary proceedings". The judge did not finally decide which avenue of appeal was appropriate, although he seemed to think that it was s 104(4) because the reason for dismissal of the charges was the decision to reject the evidence. His Honour granted leave to appeal "[t]o the extent that it is necessary to do so". That one way or the other the appeal was properly before the court was not in issue in this further appeal. 33 By his amended summons the respondent claimed relief founded on error in determining that the actions of Rocky constituted a search of the appellant for the purposes of s 37(4)(a) of the Act, and error in the application of s 138 of the Evidence Act in refusing to admit evidence "of the finding of the prohibited drugs on the defendant's person". By whichever avenue of appeal, appeal lay under s 104 "on a ground that involves a question of law alone". 34 In his reasons the judge identified the issues before the magistrate - "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. … 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." 35 Before the judge there specifically arose a question of assault. It first arose in a procedural context, the judge saying - "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 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 .)" 36 His Honour then dealt with the question as an argument of the (there) respondent. He recorded - "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." 37 His Honour first addressed the submission that what was done by Rocky constituted a search. He discussed the meaning of "search" with reference to dictionaries, to a number of United States cases on the use of drug detection dogs and the constitutional protection against unreasonable searches and seizures, and to Question of Law Reserved (No 3 of 1998). 38 His Honour considered that - " … 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." (at [26]). 39 He said that in the United States cases "the actions of a sniffer dog in detecting the presence of drugs have been held not to constitute a search" (at [27]). The cases to which he went were generally concerned with sniffing around luggage or persons, but one was concerned with the nipping or biting of luggage. His Honour rejected a distinction between sniffing objects and people (at [41]). 40 His Honour cited passages from the judgments in the Full Court in Question of Law Reserved (No 3 of 1998), to the effect that sniffing the scent emanating from a bag in close proximity to the dog was not a search. He instanced a police officer with a particularly sensitive sense of smell, or a particularly strong odour of cannabis from an obvious source, whereby a reasonable suspicion could be formed entitling search, and said that the search did not begin when the odour was first detected. He said - "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." 41 Without more expressly holding, at this point, whether what was done by Rocky did not constitute a search, the judge turned to the question of assault. 42 The judge said - "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'." 43 His Honour observed that the magistrate's decision "did not turn upon there having been an assault", that there was no finding of the application of any force and that the basis of the decision was that the actions of Rocky constituted a search. 44 His Honour continued - "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." 45 In paragraphs which need not be set out, his Honour said that merely sniffing in the vicinity of a person or object was not a trespass and plainly enough was not disposed to hold that Rocky's touching of the appellant's pocket or "sniffing in the area of his genital organs" was an assault. 46 His Honour expressed his conclusion - "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) [sic] 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." 47 It is apparent from this that his Honour understood that further evidence of the appellant's possession of the substances was to come from Sergeant Gentle and Constable Schmidt. In summary, he considered that Rocky's actions, including in seeking out the appellant and touching him, were neither a search nor an assault, and that they could have founded the formulation of a reasonable suspicion which, pursuant to s 37(4)(a) of the Act, entitled Sergeant Gentle and Constable Schmidt to search the appellant. 48 The judge then turned to what he described as "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." His Honour said - "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." 49 Whether the magistrate had erred considering that the evidence fell within the embargo in s 138(1), or in balancing the desirability and undesirability, which required the assumption that the police officers' evidence had been obtained in consequence of impropriety or a contravention of an Australian law,` was therefore not considered. The appeal to this Court 50 It is necessary to appreciate in more detail what Rocky did. As I have said, appeal to the Supreme Court lay on a ground that involved a question of law alone. The magistrate's findings must be accepted, and I have set them out earlier. They can, however, be seen together with the underlying evidence, which was not in dispute. 51 In his evidence in chief Senior Constable Richardson said that on detecting a scent Rocky's nostrils would flair and he would start to sniff rapidly. He was trained to indicate with his nose the source of the scent, and to follow the scent to its source, to put his nose on the source, and to sit down beside it. If the substance was in a person's pocket, he was trained to put his nose on the pocket. 52 From the incomplete evidence of Constable Schmidt, Rocky had detected substances on a number of prior occasions on the night of 24-25 February 2001. Details were not given. 53 At about 1.55 am Senior Constable Richardson was standing on the outer part of the footpath outside the NV Nightclub, with Rocky beside him on a lead. A line of people, the appellant amongst them, was waiting to go into the nightclub. 54 Senior Constable Richardson gave the evidence - "A. I was just standing on the roadway, as we had – on top of the gutter, as we had just completed a walk through of the nightclub and basically I was waiting for other police to come out of the nightclub and regroup. At this time the drug detection dog Rocky has indicated a scent, has picked up a scent. I've observed this and let – encouraged the dog, telling him he was a good boy. I have let him lead me towards the source of the scent. He has then put his nose on the defendant's pocket. I've informed the defendant – as I'm in plainclothes I've then informed the defendant that the dog is a police dog, informed him of my name and -- Q. Can you use the exact words you used to the defendant on the night? A. Yes. I said to him I'm Senior Constable Richardson and this is a drug detection dog, I'm finding that the drug detection dog has detected the scent of a drug on the airways around him. At this time the defendant just kept walking and did not stop. At the same time drug detection dog Rocky kept indicating to me with his nose on the defendant's pocket, so as the defendant walked, the dog kept walking with him and kept pushing his nose into the defendant's pocket. I noticed that the defendant was becoming a little big [sic: bit] agitated with this and at this time Sergeant Gentle walked up and asked the defendant to stop. The dog was still – because the dog doesn't know what's going on, the dog was still trying to indicate to me and that pretty much that drugs are here, I want my reward. Q. How was he doing that? You said he kept trying to indicate to you, what was the dog actually doing? A. He kept pushing his nose into the defendant's pocket and every time he had a chance, he would sit but as the defendant would walk, the dog would hop up from his sitting position and put his nose on the pocket again and then sit again. This happened a number of times. I then evaluated that the defendant was becoming rather agitated so I felt -- Q. What made you form that view? What did the defendant do? A. He kept pushing the dog's head away from his pocket and saying to get that – get the dog away from me. I didn't want to push the – push it any further so I moved away with the dog and – moved away from the immediate area. Q. Do you recall anything the defendant was saying at the time the dog was pushing his nose in the pocket area of the defendant? A. I just simply recall the defendant saying get the dog away." 55 The cross-examination of Senior Constable Richardson included - "Q. You saw your dog – you saw Rocky, I'll refer to him as your dog, you saw him sniffing the pockets of Mr Darby? A. Yes. Q. And was he sort of ferreting in his pockets, if I can use that expression, with his nose? A. Yes. Q. Did you see the dog sniffing around Mr Darby's genital area? A. Yes. 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 [sic] he was bunting him with his nose, isn't he? Do you understand that expression? A. Yes." 56 At a later point of the cross-examination - ""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 he'll 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 the 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." 57 Regard to the actual evidence suggests that the magistrate described rather mildly the putting of Rocky's nose on the appellant's pocket. Her Honour's finding was, "As I understand it, he remained sitting … with his nose in that position … ". In fact he pushed his nose into the pocket and ferreted at it. I take this to mean, in the light of the magistrate's finding, that Rocky pushed against the pocket, rather than getting his nose inside it. He did this a number of times as the appellant moved away, in effect following the appellant, and the appellant kept pushing his head away, to the point that the appellant became rather agitated and said to get the dog away. 58 Regard to the actual evidence also casts doubt on the judge's view that the bunting and ferreting were at some remove from the appellant, so that there was no more than a sniffing around by Rocky in the vicinity of the appellant's body and clothing (his Honour's [53] above). The magistrate's finding in terms of bunting and ferreting "until [Rocky] headed straight towards the defendant" would not naturally do so, but in the light of the evidence must have been meant to encompass the bunting by Rocky nudging the appellant as he sniffed his genital area and the ferreting by Rocky pushing his nose against the appellant's pocket. 59 I understand the respondent to have accepted, when the matter was raised, that we can look at the evidence to flesh out the magistrate's findings; the appellant said nothing to the contrary. In my opinion, the bunting and ferreting to which her Honour referred should be understood as Rocky bunting or nudging the appellant with his nose and pushing or ferreting at his pockets with his nose, and Rocky putting his nose on the appellant's pocket should be understood as the successive events of which Senior Constable Richardson gave evidence as the appellant walked away and Rocky followed. Rocky's attentions were unwelcome to the appellant, who tried to walk away and to push Rocky's head away, and the appellant made that known. 60 The first question is whether, short of Rocky bunting and ferreting and putting his nose on the appellant's pocket (in the senses I have described), his actions were a search. This properly means a search by the police, through Rocky. The police trained Rocky to act as a drug detection dog, took him on the patrol in order that he so act, and while Senior Constable Smith was standing waiting when Rocky first detected a scent he thereafter encouraged Rocky to go to the source of the scent. 61 Whether there is a search may depend on why the question is asked. One can search for the source of a smell, finding the dead mouse behind the refrigerator. That is not the kind of search now relevant. The context is s 37(4) of the Act, and in that context the search is the intrusion into personal integrity which the police can not undertake without authority. The question is asked to ascertain whether the police need authority. Authority was needed in the present case if the police would otherwise commit trespass to the person. In other cases there could be trespass to land or to goods. The engagement of search with trespass to the person directs the answer to the question. 62 A police officer would have been entitled to walk in the vicinity of the appellant and, if he were able to smell cannabis leaf in the appellant's possession, form a reasonable suspicion sufficient to entitle him to search the appellant. He would not thereby commit trespass to the person. Treating a drug detection dog as an extension of the police officer, an aid to his olfactory senses, the position is unchanged. It matters not that the dog acts differently from the police officer in the way he detects and indicates, short of bunting and ferreting and putting his nose on a pocket, the presence of a substance, or that the dog acts under the encouragement of the police officer. There is still not a trespass to the person, and there is not a search. In my opinion, Rocky's sniffing in the vicinity of the appellant, indicating that there was a scent without putting his nose on it, was not a search. 63 In Question of Law Reserved (No 3 of 1998) one basis for the decision was that, if there was a search, the bus driver had given authority for it. But the principal basis for the decision was that there was no search. 64 Olsson J said (at 226-7) - "In essence the situation, apropos 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. There are two fundamental problems with the reasoning of the learned trial judge, and with the like contention which counsel for the accused sought to adopt before this Court. The first is that 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. That word is not apt to describe the mere act of 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. In this regard it seems to me that the Crown is on sound ground when it argues that a sensory perception of any type simply cannot constitute an act of searching, because it is a passive act which cannot possibly constitute a trespass. As Sir Robert Megarry V-C said in Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 640, the reason why a search which is not authorised by law is illegal is that it involves commission of the tort of trespass in relation to the land, goods or person searched. A mere act of enabling a dog to sniff the air in the vicinity of a suitcase involves no trespass to it, just as, to paraphrase the learned Vice-Chancellor, neither the eye nor the ear can be guilty of trespass." 65 Prior J agreed with Olsson J, saying (at 224) - "I agree in particular with the submission put by the director 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 who 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." 66 Williams J also agreed, saying (at 227) that "[s]niffing around the luggage does not, relevantly constitute 'search'." 67 Olsson J recognised (at 227) "some limited authority … in the United States which attaches a wide construction on what constitutes a search". His Honour regarded that authority as a reflection of constitutional concepts. He said that there was "a wealth of published authority to the effect that the use of sniffer dogs does not, in situations such as that now under consideration, fall within the notion of a search". He identified three United States cases as examples. 68 The three examples were amongst the cases to which O'Keefe J referred. The appellant complained that O'Keefe J did not pay proper regard to the United States authorities, and in particular did not take account of cases supporting the appellant's position. He cited in particular Kyllo v United States 533 US 27 (2001), in which thermal imaging from outside a home was used and the majority said that when there was "[use] of a device not in general public use, to explore details of a house that would previously have been unknowable without physical intrusion, the surveillance is a search … ". That is distant from the present case. He cited also Terry v Ohio 392 US 1 (1968), but in that case the police officer patted down the person's outer clothing (and detected a gun), and Bond v United States 529 US 334 (2000), but in that case the officer felt a soft bag "in an exploratory manner". There was much more than sniffing in the vicinity by a detection dog. 69 I have considered the other cases to which O'Keefe J and the appellant referred. In my opinion, Olsson J's assessment is correct. Quite apart from the United States cases, the reasoning against a search is compelling. Special leave to appeal from the Full Court's decision was refused, see Hoare v The Queen A23/1998 (18 June 1999). 70 The second question is whether, because of Rocky's bunting and ferreting and putting his nose on the appellant's pocket, his actions were a search. The engagement of search with trespass to the person means that in this case it amounts to the same question as whether those actions by Rocky were a trespass. 71 At this point some more should be said of trespass to the person. "Assault" was at times used loosely at all levels in this case. There are at least two forms of trespass to the person, assault and battery: whether false imprisonment is another form need not concern us. In the criminal law there is an equivalent distinction between the common law offences of common assault and battery, see for example R v Mansfield Justices, ex parte Sharkey (1985) QB 613 at 627 per Lord Lane CJ. An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault (as in Gambriell v Caparelli (1975) 54 DLR (3d) 661, where the defendant struck the plaintiff from behind without warning). 72 In this case the focus is properly on battery, the infliction of unlawful force which may be involved in an unauthorised search. The distinction between assault and battery has been said to be "in terms more easily understood by philologists than by ordinary citizens" (Collins v Wilcock (1984) 3 All ER 375 at 377 per Robert Goff LJ), and in common parlance the infliction of unlawful force is spoken of as an assault. This usage has crept into the law, as a convenient abbreviation (see Fagan v Metropolitan Police Commissioner (1969) QB 439 at 444; R v Williams (1983) 78 Cr App R 276 at 279) and in legislation (for example, the offence of assault occasioning actual bodily harm in s 59 of the Crimes Act 1900; see also Director of Public Prosecutions v Taylor (1992) QB 645 at 651-2). The distinction remains, and must be recognised. 73 A battery may be committed using an instrument, for example hitting with a stick held in the hand rather than with the hand. In Fagan v Metropolitan Police Commissioner the instrument was the defendant's car, which he drove onto and left on the police officer's foot. Where Rocky was trained as a drug detection dog, was taken on the patrol, and after he caught a scent outside the NV Nightclub was encouraged to go to the source of the scent, I consider that he was an instrument through which, if there was a battery, it was a battery by the police. I do not accept the respondent's submission that the actions of Rocky were "not analogous" to the use of the car. 74 So far as the respondent submitted that, because the magistrate had not found that there was an assault, the question of assault should not be addressed, I do not agree. The question, more correctly one of battery, is the characterisation in law of the facts, including whether the facts suffice for the legal concept. The submissions before the magistrate recognised the engagement between search and trespass to the person, the police prosecutor at one point accepting that if the police "just went up and started to touch" people "of course that's a trespass" but saying that what Rocky did was "not a trespass by this dog on the person of the defendant". The police prosecutor later submitted that, if there was a trespass by Rocky it was minor for the purposes of s 138 of the Evidence Act. If trespass was not implicit in the magistrate's decision, it was so closely linked with the basis of her decision that it must be considered, albeit within the confines of her Honour's finding of fact. I do not accept that an injustice will be occasioned to the respondent. 75 The respondent's submissions included that there was no assault because the facts did not make out that the police intentionally or recklessly caused the appellant to apprehend immediate infliction of unlawful force. Referring in particular to R v Knight (1988) 35 A Crim R 314, a case of common assault under s 61 of the Crimes Act, it was said that there was no evidence that the police intended to cause the apprehension in the appellant or were reckless as to that, or that the appellant had the apprehension. This submission appears to have reflected the submission that, because the magistrate had not found that there was an assault, the question of assault should not be addressed: it involved that the magistrate had not made necessary findings of fact. The flaw in the submission was its dependence on assault rather than battery. The appellant contributed to the loose use of "assault", and at one point identified s 61 of the Crimes Act as the relevant contravention of Australian law. But to repeat, the focus in this case is properly on battery. 76 If Rocky had done no more than place his nose on the appellant's pocket, it may be that there would have been only identification of a place for the police to search, and no search by the police through Rocky. But there was more. Rocky was pushing and ferreting at the appellant's pockets with his nose, and was pursuing the appellant in the manner earlier described with the appellant attempting to push him away. At this stage Rocky was doing what the police could not do without authority. If Senior Constable Richardson had placed his hand on the appellant's pocket, had pushed against it, had ferreted at it although not getting his hand in it, and when the appellant moved away had followed him and done the same, it seems to me that his actions would correctly be described as searching for the contents of the pocket. He would have been doing the equivalent to, perhaps more than, what is sometimes known as a pat-down search. Rocky was similarly searching, and in my opinion on the facts of this case there was a search. 77 This, it seems to me, is at the heart of the magistrate's conclusion, through her acceptance of Mr Stewart's argument of "an actual search in that the dog sought out … the defendant and physically touched him … extending the ability of police officers to do something they could not do themselves". With respect, O'Keefe J does not appear to have fully considered a search through Rocky's actions in putting his nose on the appellant's pocket, as more fully described, as distinct from a search commencing when Rocky detected the scent; and so far as he did so, his Honour was misled by an incomplete view that the bunting and ferreting was when Rocky was at some remove from the appellant and that there was no more than a sniffing around and a placing of the nose on the outside of the appellant's pocket (see his Honour's [53] set out above.) 78 Turning to battery, in The Queen v Phillips (1971) 45 ALJR 467 Barwick CJ said (at 472) - "Physical contact with a person may be a battery at common law. But it is not necessarily or universally so even if the contact is an intentional act and could be described as the application of force. Such contact is not a battery at common law, in my opinion, unless it is made in 'an angry, revengeful, rude, insolent or hostile manner', a description taken from Hawkin's Pleas of the Crown . Nor is it in my opinion necessarily a battery at common law to make contact with another for some purpose of the person making the contact in which the person touched or handled has, or could have an interest or benefit of his or her own, none of the other features of a battery being present." 79 His Honour's observations were considered in Boughey v The Queen (1986) 161 CLR 10. In the joint judgment of Mason, Wilson and Deane JJ, with whom Gibbs CJ relevantly agreed, it was said (at 27) that positive hostility or hostile intent was not necessary, although it "may well convert what might otherwise be unobjectionable as reasonably necessary for the common intercourse of life into assault under the Code". (The Tasmanian Criminal Code Act 1924 defined "assault" in terms of actual application of force.) Brennan J accepted (at 38) Barwick CJ's statement of the common law as to battery, giving supporting references. His Honour said (at 39) that to apply force to another without his consent "is generally speaking, a hostile act and therefore unlawful". 80 In Collins v Wilcock Robert Goff LJ said (at 378) - "We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that 'the least touching of another in anger is a battery': see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, 'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner' (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, or revengeful, or rude, or insolent' (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception." 81 More particularly as to police officers, his Lordship said (at 379) - "Of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest; and he has other statutory powers, for example, his power to stop, search and detain persons under s 66 of the Metropolitan Police Act 1839, with which we are not concerned. But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. But a police officer has his rights as a citizen, as well as his duties as a policeman. A police officer may wish to engage a man's attention, for example if he wishes to question him. If he lays his hand on the man's sleeve or taps his shoulder for that purpose, he commits no wrong. He may even do so more than once; for he is under a duty to prevent and investigate crime, and so his seeking further, in the exercise of that duty, to engage a man's attention in order to speak to him may in the circumstances be regarded as acceptable (see Donnelly v Jackman [1970) 1 All ER 987, [1970] 1 WLR 562). But if, taking into account the nature of his duty, his use of physical contact in the face of non-co-operation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. … What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer's conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country." 82 In the present case, the police were not attracting the appellant's attention through Rocky. Nor was Rocky being walked and, as an exuberant dog might do, nuzzled a passing pedestrian in one of the "physical contacts of ordinary life". He was encouraged to do what he did. And what he did was more than placing his nose on the appellant's pocket, see earlier in these reasons, and included the bunting or nudging to the appellant's genital area. As I have said, these attentions were unwelcome to the appellant, who moved away a number of times, kept pushing Rocky's head away, said to get the dog away, and became agitated. Only after a number of Rocky's attentions did Senior Constable Richardson move him away. In my opinion, what occurred was a battery. 83 The third question is whether the search through Rocky was authorised pursuant to s 37(4)(a) of the Act. The respondent submitted that it was, because Rocky's actions in detecting a scent, prior to the bunting and ferreting and putting his nose on the appellant's pocket, founded a reasonable suspicion that the appellant had possession of cannabis. 84 Depending on the circumstances, the actions of a drug detection dog short of a search could provide grounds for reasonable suspicion of possession of a prohibited substance. For example, if the suspect were the only person present other than the dog's handler, the dog's clear indications of the presence of the substance and no other likely source may leave no sensible alternative. In the present case there were many people in the line outside the nightclub. Senior Constable Richardson agreed that if the dog amongst a crowd "merely sat down without putting his nose on the person … you wouldn't be able to say for sure whether it was one person or the other because of the proximity to people". That did not exclude formation of a reasonable suspicion, from Rocky's actions prior to search, that the appellant had possession of cannabis. There was more in this case than Rocky merely sitting down. Reasonable suspicion does not mean knowing or believing which person in the crowd has possession of the substance, and can be satisfied by a factual basis for conjecture or surmise short of proof (see George v Rockett (1990) 170 CLR 105 at 115-6). That Rocky's actions prior to search founded a reasonable suspicion was open, although as I will describe the evidence and findings were deficient. 85 I return to the proceedings before the magistrate. The need for the police to have formed a reasonable suspicion was plainly in the minds of all concerned. The evidence of Constable Schmidt seems to have been directed to a reasonable suspicion from earlier actions of Rocky. But the police prosecutor abandoned the evidence understood by the magistrate to be evidence of what Constable Schmidt "saw earlier in the evening that helped him form what he says is a reasonable suspicion". 86 Section 37(4)(a) requires not just grounds for reasonable suspicion, but that the searching police officer have the reasonable suspicion. Senior Constable Richardson, potentially the searching police officer through Rocky, was not asked anything about forming a reasonable suspicion. As earlier described, it seems that Sergeant Gentle and Constable Schmidt were to have given evidence of finding the substances in the appellant's possession, but Sergeant Gentle was not called to give evidence and Constable Schmidt was in the result not asked about forming a reasonable suspicion. After the magistrate had ruled that there was a search, her decision being founded on Rocky seeking out the appellant and touching him, the prosecution could have mounted a case that Rocky's earlier actions gave rise to reasonable suspicions. It did not do so. 87 For the respondent's present submission, further findings of fact would be necessary. While a reasonable suspicion was open on the facts, it was by no means inevitable given Senior Constable Richardson's evidence about which person in a crowd. The matter was not addressed in the evidence; nor was it addressed in the submissions before the magistrate, a transcript of which is in the appeal papers. (The appeal papers do not include the appellant's written submissions before the magistrate at the s 138 hearing. They are unlikely to have dealt with reasonable suspicion.) So far as her Honour made an implicit finding on the evidence as it stood, it was that a reasonable suspicion was not formed until after the search. I note that O'Keefe J appears to have positively found that Sergeant Gentle or Constable Schmidt formed a reasonable suspicion prior to their search of the appellant, see his Honour's [57] set out above. With respect, I do not think that his Honour could so find. 88 The prosecution placed all its eggs in the basket of no search. It had ample opportunity, but it did not mount a case that, to the extent that there was a search, the search was authorised by a reasonable suspicion. The respondent should not now be permitted to advance such a case. 89 The fourth question is whether the search, by Rocky's actions beyond identification of a place for the police to search, was an impropriety or a contravention of an Australian law for the purposes of s 138(1) of the Evidence Act. The fifth question is the weighing up of desirability and undesirability for which s 138 calls. 90 I do not understand the respondent to have argued against impropriety or unlawfulness. In Bunning v Cross (1978) 141 CLR 54 the common law discretion was enlivened by unlawfulness or unfairness. Search by the police, through Rocky, without a reasonable suspicion providing authority for the intrusion into the appellant's personal integrity, would in my opinion have met the common law requirement and meets the statutory requirement. The respondent alleged error in the application of s 138 in the appeal heard by O'Keefe J. On the view he took, his Honour did not have to consider that matter, and he did not do so. The respondent did not under a notice of contention submit in this appeal that the result in its favour should be maintained by overturning the magistrate's balancing of desirability and undesirability, or put any argument of error on her part in that respect. Accordingly, it is not necessary to go to her Honour's reasons, and there is no occasion to intervene in her decision, on that matter. The result 91 The magistrate's rejection of the evidence of finding the substances in the appellant's possession has not been shown to be erroneous. The consequent dismissal of the charges should stand. 92 I propose the orders - 1. Appeal allowed. 2. Set aside orders 3, 4 and 5 and the declarations made by O'Keefe J on 2 December 2002, and in lieu thereof order that the appeal to the Supreme Court be dismissed. 3. Set aside the orders for costs made by O'Keefe J on 2 December 2002 and in lieu thereof order that the (there) appellant pay the (there) respondent's costs of the appeal to the Supreme Court. 4. Respondent pay the appellant's costs of the appeal. 93 IPP JA: As is explained in the reasons of Giles JA, which I have had the benefit of reading, this appeal involves the admissibility of certain evidence. It is a matter for comment that, in the appeal before this Court, there was considerable difficulty in identifying precisely the evidence in question. When, before this Court, the parties were asked to say what the evidence was, they were both uncertain, even though the evidence was the subject of orders by the magistrate and, on appeal, by O'Keefe J and was the subject of this appeal. Eventually, senior counsel for the respective parties both agreed that the evidence in question was evidence by the police officers that they had searched the appellant and found the prohibited drugs in his possession. 94 The evidence of the police search was not led or even tendered before the magistrate. The best indication of what that evidence might have been is contained in the respondent's written submissions to O'Keefe J where the respondent asserted that the evidence was that: "As a result of the drug detection dog's actions … , Constable Schmidt searched the [appellant's] pocket and located coloured pills and green vegetable matter (which were later found to be 2.89 grams of methylamphetamine and 1.9 grams of cannabis leaf)." 95 The respondent made no effort before the magistrate to adduce evidence of any reasonable suspicion on the part of Constable Schmidt or the dog handler, Senior Constable Richardson, which would have justified any search that was made. 96 This omission, it seems to me, resulted from the way in which the hearing before the magistrate proceeded. 97 At the commencement of the hearing before the magistrate, Mr Stewart, then appearing for the appellant, said that he sought "a voir dire on the lawfulness of the search by the dog and what flows from it". As the magistrate said, the issue in the voir dire was: "[W]hether the actions of police dog Rocky amount to a search and if so, whether that 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 ." 98 When, later, the magistrate considered whether the evidence ought to be admitted in terms of s 138 of the Evidence Act 1995 (NSW), she did so on the basis that there had been an illegal search. 99 Before the magistrate, the essential foundation of all the respondent's arguments was that the actions of the dog, "Rocky", constituted an illegal search. That is to say, before the magistrate, the admissibility of the challenged evidence was dealt with on the basis that it turned on whether the actions of the dog constituted a lawful search. There was no issue raised before the magistrate as to whether the police had reasonable suspicions of the kind described in s 37(4)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). I would note that that section provides: "(4) 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) …" 100 In addition, before the magistrate, it appears to have been common ground, or at least not in issue, that the police had held reasonable suspicions, for the purposes of s 37(4)(a) of the Drug Misuse and Trafficking Act. I say this for two reasons. Firstly, the respondent made no attempt to lead any evidence of reasonable suspicions and the appellant made no point of this. Secondly, the magistrate said, in the passage set out above, that the issue in the voir dire was whether the actions of Rocky amounted to an illegal search 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" [my emphasis]. 101 Even without reference to the magistrate's statement, it is, I think, plain from the way in which the hearing before the magistrate was conducted that the admissibility of the evidence turned on the question whether the conduct of the dog amounted to a search, and the reasonable suspicions or otherwise of the police were not regarded as an issue at all. 102 At the hearing before O'Keefe J, the first issue was whether "what was done by Rocky constituted a search". As O'Keefe J concluded that no search had taken place he came to the conclusion that the magistrate's decision refusing to admit the evidence "was erroneous in law". 103 A further issue arose before his Honour as to whether what was done by Rocky constituted an assault on the appellant and, for that reason, a trespass to the person. This issue had not been raised before the magistrate. The appellant asserted that there had been a "search conducted as a result, and during the course, of a trespass to the person [that is, an assault]". Thus, before O'Keefe J the question of whether there had been an assault arose only in the context of an argument that there had been a search. 104 As regards the question of assault, O'Keefe J pointed out: "The magistrate's 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 [appellant's] pocket'. The basis of the magistrate's decision was that the actions of the dog constituted a search." 105 No issue arose before O'Keefe J as to whether the police had reasonable suspicions justifying their search of the appellant. 106 In the result, O'Keefe J found that, as the magistrate erred in concluding that the actions of Rocky constituted a search, "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". 107 In the notice of appeal to this Court the appellant advanced two principal arguments. Firstly, it was said that O'Keefe J should have found that: "[T]he actions of the police in permitting a dog on a leash to touch the appellant constituted a trespass to the person and was [sic] therefore unlawful." Secondly, it was said that O'Keefe J should have found that: "[T]he actions of the police in permitting a dog on a leash to touch the appellant constituted a search." There were several other grounds of appeal but all of these constituted merely variations on the same two themes. No question of reasonable suspicion was agitated. 108 Before this Court, the appellant relied principally on the submission that there had been a search and, again in that context, an assault. For the first time, at the suggestion of the Court, a question was raised as to whether what Rocky had done constituted a battery. Again, no question of the reasonableness of any suspicions on the part of the police arose. 109 Having regard to the way in which the proceedings have so far been conducted, and the way in which the appellant presented his argument before this Court, it seems to me that the primary or, at the least, the first question in the appeal must be whether the actions of the dog constituted a search. 110 At the outset, it is necessary to determine precisely what those actions were. 111 Senior Constable Richardson explained how the dog was trained. He said that the dog was trained to detect cannabis and to indicate with his nose when he picked up its scent. The dog was trained to follow the scent. The police officer would encourage the dog "to follow the scent of the drug to the source". What would then occur was explained by Senior Constable Richardson as follows: "He is trained to put his nose on the source of the drug and sit down beside where that source is." He said: "The indication is made very slightly but generally with Rocky he will put his nose in the air, his nostrils will flare and he will start to sniff rapidly and he will – his nose will follow the source of the scent and he will follow that scent until he has found it and then he puts his nose on the drug and sits down." 112 Rocky, in order to get his reward, would "pretty much drag [Senior Constable Richardson] to where the source of the drug is". That was because the dog was keen to receive the reward that would be given to him once he had properly detected and indicated the source of the drug. When the dog put his nose on the drug and sat down, he was given food. 113 Senior Constable Richardson explained that "[t]he drug dog's duties are to locate the scent of a drug. The drug may not be on a person, the drug may be dropped on the footpath, the dog will still find that drug". He said: "The purpose of the dog is to have the dog detect the scent of a drug". 114 It was put to Senior Constable Richardson in cross-examination that if the dog was amongst a crowd of people and merely sat down without putting his nose on the person or "ferreting on the pocket", the police officer "wouldn't be able to say for sure whether it was one person or the other because of the proximity to people". The witness replied in the affirmative. 115 Senior Constable Richardson testified that at about 1.55 am on 25 February 2001 he was in Oxford Street standing outside a nightclub. There were many people standing in a line waiting to go inside. He said: "At this time the drug detection dog Rocky has indicated a scent, has picked up a scent. I've observed this and let – encouraged the dog, telling him he was a good boy. I have let him lead me towards the source of the scent. He has then put his nose on the [appellant's] pocket." He testified that he then said to the appellant: "I'm Senior Constable Richardson and this is a drug detection dog, I'm finding that the drug detection dog has detected the scent of a drug on the airways around him." Senior Constable Richardson explained: "At this time the [appellant] just kept walking and did not stop. At the same time drug detection dog Rocky kept indicating to me with his nose on the [appellant's] pocket, so as the [appellant] walked, the dog kept walking with him and kept pushing his nose into the [appellant's] pocket." 116 The magistrate summarised the evidence of Senior Constable Richardson as follows: "[T]he dog flared its nostrils, sniffed the air and then, by what he agreed with Mr Stewart for the [appellant] could be described as bunting and ferreting, sniffed about until he headed straight towards the [appellant], at which point that dog then sniffed around the [appellant's] genital area, his trousers and his pockets and put his nose directly onto the outside of the [appellant's] pocket and sat down. As I understand it, he remained sitting, having been told he was a good dog, which is part of the required handling, with his nose in that position until police officers then searched the [appellant], finding illegal substances. I think in fact at that point that the [appellant] might have pulled the packets from his pocket when asked to do so." 117 Although, according to the transcript, the police officer referred to the dog putting his nose "into" the appellant's pocket, the magistrate and Mr Stewart for the appellant understood the overall effect of the police officer's evidence to be that the dog put his nose only on the outside of the appellant's clothing and not inside the pocket. The magistrate, as I have mentioned, said that the evidence was that the dog put his nose "directly onto the outside of the [appellant's] pocket and sat down". This understanding of the import of the evidence is supported by the following exchange during submissions at the conclusion of the voir dire: "Stewart: … [the dog] was sniffing in the pocket of – Bench: At Stewart: At the pocket of – Bench: Not in. I think that was what Senior Constable Richardson said. Stewart: At the pocket then of Mr Darby." At a later point in the proceedings the magistrate said: "What convinced me was the fact that ultimately [what] the dog does, from what I was told, [is] put its nose on the person and keep it there until it's told to relax or lie down". 118 The police evidence must therefore be taken to be that the dog put his nose on the outside of the appellant's pocket. The "bunting and ferreting" did not involve the dog inserting his nose inside the appellant's pocket. 119 Irrespective, however, of whether the dog put his nose inside the appellant's pocket or not, I do not think any of the dog's actions could amount to a search. 120 In his reasons O'Keefe J said: "'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). 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." 121 As to the meaning of "search," I would adopt what is said in this regard in Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223. "Search", as the term is used in s 36(4)(a) of the Drug Misuse and Trafficking Act, and when applied to a person, involves examining the person for the purpose of finding out whether any prohibited drugs are in his or her clothing or body. On the evidence, none of Rocky's actions were performed for this purpose. All his actions, in relation to the appellant, were performed for the purpose of identifying to the police officers present which person in the crowd of people was the person who possessed the drug, the smell of which the dog had detected. 122 Rocky had been trained, once he had picked up the scent of cannabis, to go towards the source of the scent, and if it emanated from a particular person to put his nose on the clothing of that person at that place where the scent was coming from. This was done solely for the purpose of identifying the person possessing the drug, not for the purpose of searching. The dog was not looking for the drug. He knew where it was. 123 As Senior Constable Richardson agreed, had Rocky not gone up to the appellant and ferreted "on the pocket", the police would not have known, for sure, which person had the drug which the dog had scented. There were so many people milling about that ferreting may have been needed as part of the identifying exercise. Rocky was merely completing the identification of the person who was in possession of the drug. By doing that the dog was not carrying out a search. 124 Accordingly, in my view, O'Keefe J rightly held that the magistrate erred in finding that there had been a search. Having regard to the way in which the voir dire was conducted, the magistrate should have admitted the evidence (subject to any issue under s 138 of the Evidence Act). 125 As regards the magistrate's decision not to admit the relevant evidence under s 138 of the Evidence Act, that decision was infected by the magistrate's error in resolving it on the basis that there had been a search. 126 As regards the question of assault, I consider that O'Keefe J rightly refused to find that an assault had been committed as, before the magistrate, the appellant had not submitted that an assault had occurred, had made no challenge to the evidence on this basis and had not argued that the magistrate's discretion under s 138 should be exercised in his favour by reason of an assault. Accordingly, there were no factual findings relevant to this issue. As the question of assault had not been raised, it was not investigated. Accordingly, I do not think that it should determine or affect this appeal. 127 Giles JA has pointed out that the focus in the case should be whether the conduct of Rocky amounted to a battery. I respectfully agree, but in my view, what I have said about assault applies equally to battery. 128 For the reasons I have explained, I also do not think that the omission of the respondent to lead evidence as to reasonable grounds for suspicion should determine or affect this appeal. 129 I would add that there has never been an investigation or findings as to whether any identification of the appellant and the possible formation of a reasonable suspicion preceded any possible illegal conduct of the police through the actions of Rocky. 130 There are three possible findings that could be made in regard to the conduct of the dog. Firstly, the evidence is capable of establishing that the identification of the appellant as a person possessing prohibited drugs occurred before the dog touched the appellant. The second possible finding on the evidence is that that identification occurred as soon as the dog laid his nose on the outside of the appellant's pocket, before any bunting or ferreting took place. The third possible finding is that the identification only occurred after some or all of the bunting and ferreting. Depending on which finding is made, different consequences may follow. Those consequences may relate both to s 37(4)(a) of the Drug Misuse and Trafficking Act and s 138 of the Evidence Act. 131 For example, should the identification of the appellant have been completed prior to the commission of a battery, reasonable suspicion under s 37(4)(a) may have been formed immediately upon that identification. If the identification was complete before any assault or battery occurred, that – arguably – may prevent any subsequent search from being illegal (any assault or battery then, arguably, being unconnected to the search). 132 Other permutations of findings are open. It is pointless, however, for this Court to speculate on these matters. It is first necessary for a proper investigation of the issues to be carried out in the Local Court and for detailed findings to be made. The precise findings made would also be relevant in the exercise of any discretion under s 138. 133 I would add that it is not only the evidence of the police search that might be in issue in establishing the guilt of the appellant. The actions of Rocky themselves are relevant to the guilt of the appellant. This is not a matter that has previously been considered. 134 O'Keefe J made the following relevant orders: "(1) … (2) … (3) Set aside the decision of the magistrate rejecting evidence of [the finding of prohibited drugs on the person of the appellant]. (4) Quash the decision of the magistrate dismissing the charges laid against the [appellant]. (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." In addition his Honour made the following declarations: "(1) The magistrate erred in law in determining that the actions of the Police drug detection dog Rocky constituted a search of the [appellant] 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 [appellant's] person. (3) The magistrate erred in law in dismissing the charges against the [appellant]." Finally, his Honour ordered that the appellant pay the respondent's costs of the appeal before him and granted the appellant an indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 (NSW), if otherwise entitled. 135 In my view, the order of O'Keefe J remitting the charges to be dealt with in accordance with law should stand. The Local Court should however deal with the matter in accordance with the law as set out in the judgments of this Court. In particular, depending on the attitude adopted by the parties, all the issues discussed in this judgment, including the point when identification was first made, the legality of the search, the reasonableness of the police suspicions, the effect of s 138 of the Evidence Act, and the question of assault and battery could be considered afresh in the light of all the evidence that might be led and proper findings could be made. 136 Further, I think it unnecessary for declaration (2) to be made. Although I consider the decision of the magistrate to be wrong, it would still be open, in the remitted proceedings, for the magistrate to refuse to admit the evidence by reference to s 138 of the Evidence Act once the issues have been investigated properly. 137 In the circumstances it is necessary for the orders made by O'Keefe J to be varied. To that extent I would uphold the appeal. 138 I propose the following orders: (a) I would set aside the order made by O'Keefe J remitting each of the charges to the Local Court and would substitute the following order: 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. (b) I would set aside declaration (2) made by O'Keefe J. (c) In view of the limited success of the appellant in the appeal I would make no order as to the costs of the appeal. 139 I would not otherwise interfere with the orders made by O'Keefe J. 140 McColl JA: I agree with Ipp JA. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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