Drugs and the law - Hot Topics 59 - Find Legal Answers

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Police powersundercOver pOlicePolice investigations into drug offences commonlyinvolve the use of undercover officers who either offer adegree of encouragement to people to commit an offence,or participate in criminal activity, or both. There is nosubstantive defence of entrapment in Australian law 8 .The fact that drugs are supplied to an undercover policeofficer who encourages the supplier to break the law isnot a mitigating circumstance in sentencing 9 .In Ridgeway, the High Court ruled that althoughgenerally evidence obtained by undercover police agentsin the course of their participation in a drug importationwas admissible, the degree of police involvement in thecriminal activity in that particular case was excessive (andso the resulting evidence obtained was inadmissible).In response to this decision, both NSW and federalgovernments passed legislation to make otherwiseunlawful conduct by police (such as the supply ofprohibited drugs) legal, provided it is authorised as partof a controlled operation.searcHesPolice have some powers to search people and property,and seize articles such as drugs for evidence, but theirpowers are not unlimited.There are different rules for personal searches, andsearches of houses or land.personal searchesThe police can search a person without arresting themunder the Law Enforcement (Powers and Responsibilities)Act 2002, section 21. This section gives police the powerto ‘stop, search and detain’ anyone who they ‘reasonablysuspect’ might be in possession of drugs. Police cansearch a vehicle if they have a similar reasonable suspicionunder the Law Enforcement (Powers and Responsibilities)Act 2002, section 36.case sTudythe case of the highway hirerin DPP v Leonard [2001] nsWsc 797, the defendant, drivinga hire car, was stopped for a random breath test on thesturt highway. the police officer told the defendant thatit was common for cannabis to be transported in hire carson that highway, and asked if he could search the car.the defendant said, ‘go for it, there’s nothing in there’.the police found a traffickable quantity of cannabis in theboot. the magistrate hearing the case found that the policedid not have reasonable grounds for suspicion to justifya search and that the defendant’s consent was not validbecause the police had not informed him that he had aright to refuse consent.on appeal, the supreme court ruled that the consent wasvalid and therefore the search was legal. the police donot have to advise you that you can refuse. (interestingly,the Director of public prosecutions did not appeal themagistrate’s finding that there were no reasonable groundsfor the search in the officer’s stated reasons.)search after arrestThe police have the right to search a person after anarrest (Law Enforcement (Powers and Responsibilities) Act2002, section 23).A police officer above the rank of sergeant can requestthat a doctor examine a person in custody (if suchan examination is relevant to the charge) without theperson’s consent.Women should only be searched by a woman policeofficer. If no female constable is available, however, thepolice can request ‘any female’ to conduct the searchunder their direction.sniffer dOgsIn recent years, police have used specially trained dogsto detect the presence of prohibited drugs. This practiceraised questions about whether the activity of snifferdogs itself amounts to a search.The situation has been clarified both by legislation and aNSW Supreme Court decision.8. Ridgeway v R [1995] 184 CLR 199. R v Chan [1999] NSWCCA 103 (unreported)police powers 17
LegislationUnder section 148 of the Law Enforcement (Powers andResponsibilities) Act 2002 police can use sniffer dogswithout a warrant to detect illicit drugs, but only for‘general drug detection’, defined to mean using a dog todetect the potential presence of drugs by smell, beforethe police conduct any actual search of the person ortheir belongings.sniffer dogs and warrantsPolice can use a dog to assist with general drug detectionwithout a warrant (Law Enforcement (Powers andResponsibilities) Act 2002, s 148), in relation to a personwho is at, entering or leaving:> premises licensed for the consumption of liquor soldthere (not including a restaurant or dining room)> a public place being used for ‘a sporting event, concertor other artistic performance, dance party, parade orother entertainment’> a train, bus or light rail vehicle, on a prescribed route,or a station, platform or stop.In other circumstances – for example, in a public street– police can only use drug detection dogs to searchpeople or vehicles with a warrant issued under theLaw Enforcement (Powers and Responsibilities) Act 2002,section 149.A police officer is authorised to use a dog for generaldrug detection only as provided under the Act (LawEnforcement (Powers and Responsibilities) Act 2002,section 147).in the supreme courtIn DPP v Darby 10 the defendant was searched outsidea nightclub after a sniffer dog had indicated to policethat he was in possession of prohibited drugs. The courtruled that the sniffer dog’s activity did not amount to asearch. It found that the dog’s reaction was a basis forforming a suspicion by the police, just as informationfrom another officer, or from a member of the public,or an officer’s own perceptions (for example, of a strongodour of cannabis) might be a basis for an officer to forma suspicion.Darby applied a 1998 South Australian Supreme Courtdecision – Questions of Law Reserved (No. 3 of 1998) 11 ,which came to a similar conclusion. In that case, the SASupreme Court decided that a dog sniffing a suitcase inthe luggage compartment of a bus was not conducting asearch. Special leave to appeal this decision was refusedby the High Court. 12ombudsman’s reportThe NSW Ombudsman’s 2006 report on the introductionof the sniffer dog legislation was that drugswere found in only a quarter of cases where the dogshad indicated the presence of drugs, which suggests thatsniffer dog ‘indication’ may be of doubtful accuracy.The Ombudsman report also found that the use ofsniffer dogs had no apparent effect on apprehendingdrug suppliers, with less than 1% of the over 2000people found in possession after a search, successfullyprosecuted for supply.inTernal searcHesWhere the police suspect that a person has swallowedor is internally concealing a prohibited drug, and thatthe person has committed or is committing an offenceinvolving supply of a prohibited drug, they may detainthem to arrange an internal search (Law Enforcement(Powers and Responsibilities) Act 2002, section 155).An internal search involves ultrasound, X-rays, MRI(magnetic resonance imaging) or some other form ofmedical imaging, but does not include intrusion intoa body cavity. It can only be done by a doctor or otherqualified person.A child under 10 cannot be required to submit to aninternal search.Adult suspects are asked to consent to the search. Policemay apply to an eligible judicial officer for an order forinternal search and detention if:> the person refuses consent> is under 18, or> is incapable of giving informed consent.Where an internal search reveals the presence of anythingthat might be prohibited drugs, the person may bedetained for 48 hours. This period may be extended byan eligible judicial officer, but no more than twice unlessin exceptional circumstances.searcH friendA person is entitled to have a search friend present ata hearing of an application for an internal search, andduring the search itself, if they are:> under 18> incapable of giving consent, or> an Aboriginal or Torres Strait Islander.A search friend can be:> a parent or guardian> a legal representative> a representative of an Aboriginal legal aidorganisation> another person chosen by the suspect.10. [2002] NSWSC 1157 (unreported)11. (1998) 71 SASR 22312. Hoare v The Queen (1989) 167 CLR 34818HOT TOPICS 59 > Drugs and the law
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