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

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(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 53
203 See paragraph 12.4 ‘Requesting to see the warrant’ in NSW Ombudsman, Review of the Police Powers (Drug Detection in Border Areas Trial) Act 2003, January 2005, p.119. 204 NSW Police Force, Police Powers (Drug Detection Trial) Act 2003 Standard Operating Procedures, November 2007, p.6. 205 Ombudsman observer notes. 206 Police Powers (Drug Detection Trial) Act 2003, s.18(3)(b). 207 NSW Police Force, Police Powers (Drug Detection Trial) Act 2003 Standard Operating Procedures, November 2007, p.13. 208 NSW Police Force, Police Powers (Drug Detection Trial) Act 2003 Standard Operating Procedures, November 2007, p.13. 209 NSW Police Force, Standard Operating Procedures — Drug Detection Operations, Draft Version 2, February 2007, p.21. Our examination of search records on COPS revealed that police rarely, if ever, referred to anything more than the fact that the drug detection dog made an indication. 210 NSW Police Force, Operational Orders, Monaro Local Area Command, 20 December 2007, p.9. 211 NSW Police Force, Operational Orders, Goulburn Local Area Command, December 2007, p.5. 212 NSW Police Force, Standard Operating Procedures — Drug Detection Operations, Draft Version 2, February 2007, p.17. At the time of finalising the report, the NSW Police Force had not implemented the draft SOPs. 213 Interview A transcript, p.29. 214 NSWPF COPS ref: E33121362. 215 For a detailed discussion of this issue, see paragraph 14.3 ‘Forming a reasonable suspicion’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, pp.195–205. 216 See Chapter 8 ‘Accuracy of drug detection dogs’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, pp.49–62. 217 Correspondence from Assistant Commissioner Reg Mahoney to Assistant Ombudsman (Police) Simon Cohen, 18 May 2007. 218 NSW Police Force response to request for further information, 28 February 2008, p.3. 219 NSWPF COPS ref: E31503840. 220 See paragraph 15.8 ‘Prescription drugs’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, pp.259–261. 221 Interview C transcript, p.11. 222 Ombudsman observer notes. 223 For further discussion of this issue, see paragraph 8.2.5 ‘Denials, inadequate searches and evasions’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, p.51. 224 Interview transcript G, p.6. 225 Interview E transcript, p.20. 226 Interview with senior officer from the Dog Unit. 227 NSW Police Force response to request for further information, 28 February 2008, p.4. 228 For further information on this issue, see Chapter 8 ‘Accuracy of drug detection dogs’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, pp.45–62. 229 NSW Police Dog Unit — Search Form — No Drug Located form. 230 NSW Police Force, Standard Operating Procedures — Drug Detection Operations, Draft Version 2, February 2007, p.20. 231 NSW Police Dog Unit — Search Form — Drug Located form. 232 NSW Police Dog Unit — Search Form — No Drug Located form. 233 The NSW Police Force provided the COPS event numbers pursuant to the Information Requirements document. See Appendix 2 for a copy of the Information Requirements document. 234 NSWPF COPS ref: E32824482; E31129348; E185978692; E31106761; E31365058; and E59518502. 235 NSWPF COPS ref: E59535802; E33083984; E30851444; E31472469; E32244171; E33089784; E31905753; E31451477; and E30824037. 236 NSWPF COPS ref: E30857352; E31003132; E31037047; E109838996; E32242608; and E31606567. 237 NSWPF COPS ref: E31117561. 238 NSWPF COPS ref: E32824482. 239 NSWPF COPS ref: E33083984. 240 NSWPF COPS ref: E31150911; E33539086; E30857152; E30859270; E31485343; and E31401603. 241 NSWPF COPS ref: E31503840; E272961491; E30845935; E31491640; E31277121; E31126636; and E30866675. 242 NSWPF COPS ref: E31401603. 243 NSWPF COPS ref: E32719407. 244 NSWPF COPS ref: E32356406. 245 NSWPF COPS ref: E32362345. 246 For further discussion of this issue, see Chapter 11 ‘Obtaining information and how it is recorded and used’ in NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, June 2006, pp.101–127. 247 Advice from the NSW Police Force, 14 March 2008. 248 NSW Police Force, Annual Report 2006–07, December 2007, p.49. 249 NSW Police Force response to draft final report, 29 May 2008, p.1. 250 For a discussion of the protection of belongings during searches, see paragraph 13.4 ‘Protection of occupant’s possessions’ in NSW Ombudsman, Review of the Police Powers (Drug Detection in Border Areas Trial) Act 2003, January 2005, p.149. 251 Ombudsman observer notes. 252 As a result of our review of the border areas trial, we recommended that the SOPs be amended to emphasise that searches of coach passengers be conducted away from the coach and not within easy view of other coach passengers. See paragraph 12.7.2 ‘Searches of coach passengers’ in NSW Ombudsman, Review of the Police Powers (Drug Detection in Border Areas Trial) Act 2003, January 2005, p.126. This recommendation was not implemented by the NSW Police Force during the drug detection trial. 253 Interview A transcript, p.25. 254 NSWPF COPS ref E29273630; H29536776. 54 NSW Ombudsman Review of the Police Powers (Drug Detection Trial) Act 2003
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Review of the Police Powers (Drug D
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Any correspondence relating to this
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2 June 2008 Level 24 580 George Str
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Foreword The vehicular trafficking
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Chapter 4. Issues identified during
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or is to be, used on a regular basi
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Issues identified during the drug d
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Conclusion A critical examination o
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viii NSW Ombudsman Review of the Po
Page 19 and 20: The bill proposed a number of chang
Page 21 and 22: 4 NSW Ombudsman Review of the Polic
Page 23 and 24: In addition, if the authorisation i
Page 25 and 26: 2.1.9. Reporting and record keeping
Page 27 and 28: If the drug detection dog indicates
Page 29 and 30: 41 Police Powers (Drug Detection Tr
Page 31 and 32: 3.2. Number of vehicles and persons
Page 33 and 34: Table 3 details drugs seized, legal
Page 35 and 36: Local area command/s where operatio
Page 37 and 38: One person was charged with resist/
Page 39 and 40: In addition, a driver of a Pantec t
Page 41 and 42: 118 Pursuant to s.12 of the Crimes
Page 43 and 44: Getting an authorisation is a lengt
Page 45 and 46: (b) the likelihood of success of th
Page 47 and 48: Case study 1 Grant of authorisation
Page 49 and 50: 4.1.5. Capacity of designated offic
Page 51 and 52: The officer will then stop each veh
Page 53 and 54: mindful to ensure that they do not
Page 55 and 56: We raised this issue during the bor
Page 57 and 58: In circumstances where a person sea
Page 59 and 60: During pre-operational briefings Om
Page 61 and 62: In addition, boredom, motivation, f
Page 63 and 64: Case study 7 No drugs located, no a
Page 65 and 66: Case study 9 Persons searched withi
Page 67 and 68: 4.7.2. Police views A number of sen
Page 69: However, the NSW Police Force noted
Page 73 and 74: 56 NSW Ombudsman Review of the Poli
Page 75 and 76: • One or more drugs were located
Page 77 and 78: … the nature of the legislation a
Page 79 and 80: We also got some specific [intellig
Page 81 and 82: I think that was something that rea
Page 83 and 84: … if they’re serious about the
Page 85 and 86: This view was echoed by officers co
Page 87 and 88: We raised the issue of regional sta
Page 89 and 90: Table 4. Operational costs Operatio
Page 91 and 92: 5.7.2. Community support 5.7.2.1. P
Page 93 and 94: According to survey participants, t
Page 95 and 96: Case study 14 Delayed by search 457
Page 97 and 98: … a reduction in costs and resour
Page 99 and 100: Case study 17 Police seize $875,000
Page 101 and 102: 366 Interview A transcript, pp.18-1
Page 103 and 104: 86 NSW Ombudsman Review of the Poli
Page 105 and 106: There are also a number of seemingl
Page 107 and 108: Appendix 1. Memorandum of Understan
Page 109 and 110: MOU between NSW Police and the Ombu
Page 119 and 120: Other information requirements
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Appendix 4. Sample of an authorisat
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106 NSW Ombudsman Review of the Pol
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Appendix 6. Telephone survey tool.
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Acknowledgments This report was res
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