The phrase above isn’t an introduction to a joke, but rather the exact scenario in Darby v Director of Public Prosecutions  NSWCA 431.
Mr Darby was standing outside a nightclub in Sydney. A plain clothes police officer and his drug detection dog, Rocky, were walking past on their way to enter the club. As Rocky walked past Darby he began sniffing the air and then walked up to and placed his nose on Darby’s pocket. Rocky’s actions in placing his nose on Darby’s pockets, involved him “bunting and ferreting” Darby’s pocket and genital areas. Police subsequently searched Darby and found him to be carrying drugs.
The crux of the matter was whether Rocky’s actions constituted a search, and if so, did the police have “reasonable suspicion” to conduct the search, as any search conducted before having reasonable suspicion would be illegal, and the drugs found during this search could be excluded as inadmissible evidence in Court. Thus much turned on whether Rocky “searched” Mr Darby or not.
At first instance, the Magistrate found that Rocky’s actions constituted a search of Mr Darby, the search was illegal as it was not based on reasonable suspicion, and the drugs found on Darby during the search were held to be inadmissible evidence. Consequently, the charges were dismissed.
The DPP appealed the decision of the Magistrate to the Supreme Court of New South Wales. Here O’Keefe J found that the actions of Rocky were not a search but rather identification and this identification gave police reasonable suspicion to search Darby.
Mr Darby appealed this decision to the New South Wales Court of Appeal. Darby’s counsel raised the point that Rocky’s actions of “ferreting and bunting” constituted an assault and battery and thus Rocky’s actions were illegal.
In a majority decision (2 -1), the Court of Appeal upheld the decision of the Supreme Court. It was held unanimously by the Court of Appeal that using a dog to sniff in the vicinity of a person for the purpose of drug detection does not constitute a search. However, in his dissenting judgment, Giles JA held that the actions of Rocky in bunting Mr Darby constituted battery and thus were unlawful.
Today most police powers can be found in the Law Enforcement (Powers and Responsibilities) Act 2002. Should you have any criminal law matters, please feel free to contact our experienced team of solicitors at Everingham Solomons because Helping You is Our Business.
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