The 2006 NSW Ombudsman report into the laws regarding the use of drug detection dogs by NSW police remains the most comprehensive study into this aspect of policing that’s ever been undertaken in this state.

The statutory review delved into the effectiveness of laws governing the warrantless use of sniffer dogs contained in the Police Powers (Drug Detection Dog) Act 2001 (NSW). It was a number of legal ambiguities around drug dog use raised in the courts that led to the drafting of this legislation.

NSW police began using drug dogs in the lead up to the 2000 Sydney Olympics. The regulations set out in the 2001 Act came into effect in February 2002. And since December 2005, these powers fall under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), also known as the LEPRA.

The Ombudsman review found drug detection dogs “to be an ineffective tool for detecting drug dealers”. Their use had either resulted in the searching of people not in possession of drugs, or in detecting young adults “in possession of very small amounts of cannabis for personal use”.

The report further questioned whether drug dog laws will “ever provide a fair, efficacious and cost effective tool to target drug supply”, as well as questioning whether the laws “should be retained at all”. However, 13 years on, these sniffer dog laws are still in operation and are as ineffective as ever.

Sniffer dog laws

The powers relating to drug dog use are set out in part 2 division 2 of the LEPRA. Section 145 states that the use of sniffer dogs relates to “general drug detection”, which is the detection of illicit substances in cases where an officer doesn’t already hold a reasonable suspicion of a drug offence.

Section 146 of the LEPRA provides that an officer “authorised to search a person for the purpose of detecting a drug offence” can use a sniffer dog. And it also protects the officer and the state from liability arising from using a dog in and around a premise.

Authorised places where dogs can be used without a warrant are set out in section 148 of the Act. These include liquor outlets, sporting events, concerts or other artistic performances, dance parties, parades or other entertainment, tattoo parlours and all public places in the Kings Cross precinct.

Officers can also search people entering or leaving public transport on a prescribed route, as well as a station, platform or stopping place. This relates to bus routes between Albury and Sydney and Grafton and Sydney. And since 2012, it relates to the entire Sydney train network.

Section 150 of the LEPRA stipulates that an officer must “take all reasonable precautions to prevent the dog touching a person” and they’re “required to keep a dog under control”, when “using the dog to carry out general drug detection”.

An illegal search

NSW Parliamentary Research Service officer Gareth Griffith explained in a 2012 legal position paper that the Ombudsman recommended that the touching provisions in section 150 need clarification so as to make clear whether such touching constitutes a trespass. Although, this has never been done.

The legal ambiguities around sniffer dogs touching people first arose in the October 2001 NSW Local Court case NSW Police versus Glen Paul Darby, which took place a little over a month prior to then NSW police minister Michael Costa introducing the Drug Detection Dog Bill into parliament.

On 25 February 2001, a police drug dog named Rocky – under the control of NSW police senior constable Richardson – indicated that Glen Darby was in possession of illegal drugs out the front of N V Nightclub on Oxford Street. A subsequent search turned up an amount of cannabis and ice.

Rocky’s indication involved walking up to Darby, sniffing around his genitals, placing his nose upon his pocket and then taking a seat next to him. Darby tried to move away from the dog, so Rocky repeated the procedure bunting and nudging his nose against him and even ferreting in his pocket.

Magistrate Mary Jerram found the behaviour of Rocky to constitute a search, which was therefore illegal, as the senior constable hadn’t formed a reasonable suspicion to conduct a search, as stipulated by law, until after the sniffer dog had searched Mr Darby.

And following from this finding, the magistrate excluded the evidence of the illegal drugs under the provisions of section 138 of the Evidence Act 1995 (NSW), which provides that evidence obtained unlawfully should not be permitted in court. And the charges against Darby were dismissed.

Inaccurate indications

However, NSW Supreme Court Justice Barry O’Keefe over turned the magistrate’s finding on appeal in 2002’s DPP versus Darby, in which he found that Magistrate Jerram had made an error in finding the actions of the sniffer dog amounted to a search.

The O’Keefe decision was then appealed to the NSW Court of Criminal appeal in 2004’s Darby versus DPP. And the appeals court ruled that using a sniffer dog does not warrant a search, as a dog doesn’t search for drugs, but rather indicates their presence, after having picked up on their scent.

However, Professor Dan Meagher found fault with this finding, as “this approach assumes that an indication by a drug detection dog is invariably accurate”. Indeed, the Ombudsman report revealed that illicit drugs were only found in 26 percent of searches carried out following a dog indication.

Questionable foundations

NSW Greens MLC David Shoebridge has been monitoring drug dog statistics since 2011. And as he told Sydney Criminal Lawyers last year, “drug dogs get it wrong between two-thirds and three-quarters of the time”.

Sniff Off is a campaign against the warrantless use of drug dogs in public places. It’s a collaboration between Mr Shoebridge and the NSW Young Greens. The Sniff Off Facebook page is liked by over 68,000 people, who can tip off other followers as to the whereabouts of police dog operations.

However, despite the early finding of the Ombudsman, as well as the mounting public outcry against the use of sniffer dogs, NSW police continues with its practice. And thousands of people are searched every year based on the indication of a dog that more than likely has gotten it wrong.