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

(pursuant to s.9(1)(a)). However, this view does not appear to accord with the intention of the legislation given the references
during the parliamentary debate to establishing check points and stopping vehicles at check points.
159
Note that directing a vehicle to a location to be searched would be part of the search power contained in either section 21(1)(d)
or 36(1)(e) of the Law Enforcement (Powers and Responsibilities) Act 2002.
160
NSWPF COPS ref: E32020524.
161
See above (at paragraph 2.4.2) for a brief overview of how police conduct mobile operations.
162
NSW Police Force, Police Powers (Drug Detection Trial) Act 2003 Standard Operating Procedures, November 2007, p.7.
163
NSW Police Force College, School of Operational Safety and Tactics, Motor Vehicle Stopping Techniques and Procedures.
164
NSW Police Force, Operational Orders, Canobolas Local Area Command, December 2007, p.8. NSW Police Force, Operational
Orders, Barrier Local Area Command, February 2008, p.9.
165
NSW Police Force, Operational Orders, Monaro Local Area Command, January 2008, p.8.
166
NSW Police Force, Operational Orders, Monaro Local Area Command, November 2007, p.5.
167
NSW Police Force, Operational Orders, Lachlan Local Area Command, December 2007, p.8.
168
NSW Police Force, Operational Orders, Monaro Local Area Command, 20 December 2007, p.9.
169
Evidence Act 1995, s.138(1). Of course, it does not follow that police, when exercising a power for the purpose for which it was
given, are not able to take action in relation to any other offences they detect when exercising that power. For example, s.13(4)
of the Road Transport (Safety and Traffic Management) Act 1999 states that the stop power does not limit any other power or
authority, so if a vehicle is stopped under some other power — such as the stop power in s.9(1) of the Drug Detection Trial Act
— then there appears to be no impediment to requiring the driver to undergo a breath test. Ombudsman observers noted this
practice during a number of drug detection operations.
170
Ombudsman observer notes.
171
Ms Linda Burney, Parliamentary Secretary, NSWPD, Legislative Assembly, 14 November 2006, p.102. See also the Hon. Henry
Tsang, Parliamentary Secretary, NSWPD, Legislative Council, 16 November 2006, p.4164.
172
NSW Police Force response to the Issues Document, 28 February 2008, p.12.
173
See below (at paragraph 5.7.2.4) for details of the impact of operations at roadhouses.
174
NSW Police Force response to the Issues Document, 28 February 2008, p.9.
175
NSWPF Authorisation, 6 March 2007, pp.2–3.
176
Law Enforcement (Powers and Responsibilities) Act 2002, s.21(1)(d).
177
Law Enforcement (Powers and Responsibilities) Act 2002, s.36(1)(e).
178
Police Powers (Drug Detection Trial) Act 2003, s.11(3)(b).
179
The Hon. John Hatzistergos, NSWPD, Legislative Council, 25 June 2003, p.2042.
180
Ombudsman observer notes.
181
NSW Police force, Operational Orders, Goulburn Local Area Command, December 2007, pp.4–5.
182
Ombudsman observer notes.
183
Interview A transcript, p.21.
184
Interview A transcript, p.21.
185
Ombudsman observer notes.
186
Interview A transcript, p.22.
187
See paragraph 12.8 ‘Asking heavy drivers to step down from the cabin’ in NSW Ombudsman, Review of the Police Powers
(Drug Detection in Border Areas Trial) Act 2003, January 2005, pp.129–131.
188
For a further discussion of consent policing, see paragraph 14.8 ‘Consent’ in NSW Ombudsman, Review of the Police Powers
(Drug Detection Dogs) Act 2001, June 2006, pp.217–220.
189
In DPP v Leonard [2001] NSWSC 797(14 September 2001); (2001) 53 NSWLR 227; (2001) 127 A Crim R 381 at paragraph [64]
his Honour James (Greg) J held:
… a person may consent to an investigative procedure taking place without being aware that he has the right to withhold
consent to the procedure taking place. This conclusion is, of course, subject to any statutory provision to the contrary.
We note that some police suggest that when requests are made, members of the public are provided with the ‘opportunity’ to
refuse (see paragraph 4.2.3.4). In our view, this opportunity may be illusory for some people. As we noted in our review of the
Police Powers (Drug Detection Dogs) Act 2001, fair and effective policing involves the provision of information that is essential to
a person independently exercising their rights. Accordingly, we recommended that police officers obtain explicit consent, which
involves informing persons that they have the right to refuse, in circumstances where police do not have the lawful authority to
compel a person to comply with a request. The NSW Police Force supported this recommendation.
190
Interview C transcript, p.8.
191
Interview D transcript, pp.10–11.
192
NSW Police Force response to the Issues Document, 28 February 2008, p.10.
193
NSW Police Force response to the Issues Document, 28 February 2008, p.10.
194
NSW Police Force response to the Issues Document, 28 February 2008, p.11.
195
Evidence Act 1995, s.138(1).
196
See paragraph 11.2 ‘Obtaining information from searched persons’ in NSW Ombudsman, Review of the Police Powers (Drug
Detection Dogs) Act 2001, June 2006, pp.102–8.
197
NSW Police Dog Unit — Search Form — No Drug Located form. NSW Police Force, Standard Operating Procedures — Drug
Detection Operations, Draft Version 2, February 2007, p.18.
198
Operation debriefing form, 21 February 2008, p.3.
199
Interview E transcript, p.21.
200
NSW Police Force response to the Issues Document, 28 February 2008, p.11.
201
[1999] NSWSC 265 at paragraph [19].
202
Law Enforcement (Powers and Responsibilities) Act 2002, s.59 and s.71.
NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003
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