Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

The officer will then stop each vehicle directing it to one of the predetermined check points. Every
vehicle should be stopped in a safe manner and in accordance with NSW Police Motor Vehicle Stopping
Techniques and Procedures. 168 [Emphasis added.]
It is not clear whether during the above operation police actually stopped vehicles in the search area and thereafter
directed them to a check point. However, if police did stop vehicles in this manner, it is our view that this practice was
not sanctioned by the power to stop a vehicle under section 9(1).
Further, it is our view that it would be undesirable for police to use other random vehicle stop powers — such as the
power to stop a vehicle to conduct random breath testing — when the real purpose is to stop the vehicle so that
it can be directed to a check point for screening. This is because the power to stop a vehicle to conduct random
breath testing appears to limit or confine the purpose for which the stop power can be used. Relevantly, section 13(4)
of the Road Transport (Safety and Traffic Management) Act 1999 provides:
Without limiting any other power or authority, a police officer may, for the purposes of this section, request or
signal the driver of a motor vehicle to stop the vehicle. [Emphasis added.]
In addition, the exercise of any power for an ulterior purpose may expose police to the allegation that the power
was not exercised in good faith, or was improper, or unlawful, which could potentially lead to the exclusion of any
evidence obtained. 169
Ombudsman observers attended one mobile operation and noted the following practice:
Case study 3
Mobile operation 170
Police in southern NSW conducted a mobile operation along a major highway. Two highway patrol vehicles were
deployed both within and outside the search area to identify vehicles to be stopped. The highway patrol officers
would target particular vehicles based on intelligence about drug couriers, radio checks and other observations.
Once identifying a vehicle, the highway patrol officers would follow the vehicle until it approached the unattended
check point, which consisted of both sides of a 500-metre stretch of highway where the speed limit was 80km/h.
Police would then activate their warning devices (lights and sirens) indicating to the driver of the vehicle to pull
over. Once the vehicle came to a halt, the highway patrol officers established a safety zone around the stopped
vehicle by placing traffic cones (witches hats) around it. In addition, the warning lights on the highway patrol
vehicles continued to alert other vehicles to the presence of police.
Shortly after the vehicle had been stopped, an additional four police officers and the drug detection dog, who
were located out of sight in streets adjacent to the check point, attended the site, screened the vehicle, and
conducted searches when required. No safety concerns were noted during this operation. In addition, no drugs
were seized during the operation.
4.2.1.2. Establishing a check point
According to police, the effectiveness of mobile operations hinged on their capacity to maintain minimal visible
presence during operations. The utilisation of unattended check points, as illustrated in the above case study,
ensured that the nature and location of the operation were not easily discernable to vehicles travelling through the
search area.
However, some police raised questions about what the establishment of a check point entails. For example, does the
establishment of a check point require police to remain at the check point for the purpose of stopping vehicles, or
can police establish a check point, and thereafter remove themselves from the check point until a vehicle is stopped
at, or directed to the check point?
On the one hand, it may be argued that to establish a check point police must remain at the check point. For
example, section 10 of the Drug Detection Trial Act, which deals with check points, provides:
(1) A police officer may, at any time during the period in which an authorisation remains in force, remove a
check point from one location and re-establish it at any other location in the search area.
(2) A police officer who establishes a check point must ensure that adequate measures are taken to ensure the
safety of persons and vehicles approaching the check point.
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003