Author: Phillip GibsonCriminal Defence Lawyer Phillip Gibson at our Sydney Office

EVIDENCE OBTAINED AFTER A search by a police sniffer dog was ruled inadmissible by Deputy Chief Magistrate Mary Jerram in Police v Darby,[1] on 21 November 2001. The magistrate had earlier ruled that the dog had conducted a form of search and that the search was illegal.

The defendant was in a group of approximately 40 people who had come out of a nightclub in Oxford Street Sydney. Plain-clothes police were at the scene with ‘Rocky’ the police dog. Rocky indicated the presence of illegal substances and performed certain actions identifying the defendant as being apparently in possession of those substances.

Under the Drug Misuse and Trafficking Act 1985 (DMTA) a member of the police may “… stop, search and detain –

“(a) any person in whose possession or under whose control the member reasonably suspects there is, in contravention of this Act, any prohibited plant or prohibited drug; or

“(b) any vehicle in which the member reasonably suspects there is any prohibited plant or prohibited drug which is, in contravention of this Act, in the possession or under the control of any person.”

The first question to be decided by the magistrate was whether the dog had performed a search and if so whether that search was legal. The magistrate determined that Rocky had performed a search of the defendant and that the search preceded and indeed created the formation of the reasonable suspicion required under s.37(4)(a) of the DMTA for the police officer to stop, search and detain the defendant for prohibited drugs. In the view of the magistrate the search was illegal.

The next decision for the magistrate was whether the evidence should be admitted pursuant to s.138 of the Evidence Act 1995 (NSW). Under this section improperly obtained evidence is not to be admitted unless ” the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” The Act sets out a number of considerations the court is to take into account in deciding whether or not to admit the evidence. These are:

  • the probative value of the evidence; and
  • the importance of the evidence in the proceeding; and
  • the nature of the relevant offence … and the nature of the subject matter of the proceeding; and
  • the gravity of the impropriety.

The magistrate dealt with each of these considerations. She found that the evidence was clearly highly probative and important because without the evidence there would be no case to answer. Her Worship quoted from Bunning v Cross (1978) 141 CLR 54 at 79; “to treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless may serve to foster the quite erroneous view that if such evidence be but damning enough, that will suffice to atone for the illegality involved in procuring it”.

The prosecution had contended that the police did not go out with the intention that the dog would search anyone but would merely assist them. In the light of her findings the magistrate considered this suggestion to be nonsense.