Big Day Out for Police Dogs

The Big Day Out just keeps getting bigger! It is now so big that in Sydney this Australia Day long weekend there were two Big Days Out on consecutive days. Over 75,000 fans made the trek to Olympic Park, to see over 40 bands and other acts on 8 stages. Many of those fans travelled to the concert by train. CityRail put on extra trains to meet the demand.

By some amazing coincidence, NSW Police chose the same two days for Operation Guardian – targeting drug offences on the Sydney rail network. Nine drug-detection dogs, 300 police and 259 State Transit Officers were involved in the operation.[1] Across the Sydney rail network:

• more than 400 people were searched
• 550 infringement notices were issued
• 230 people were arrested
• 150 cannabis cautions were issued
• 130 Court Attendance Notices were issued.[2]

At Olympic Park police targeted Big Day Out ticket-holders exiting the railway station. Drug sniffer dogs identified people who might be carrying drugs. According to Big Day Out promoter Ken West it was “like shooting fish in a barrel”.[3]

The aftermath at Burwood Local Court

Three weeks later I visited Burwood Local Court, where the list magistrate was still dealing with the aftermath. I watched several people plead guilty to charges of possess prohibited drugs such as cannabis and speed. Most of them were in their twenties and thirties, unrepresented and this was the first time they had ever been to court, let alone charged with a criminal offence. For some, the prospect of a criminal charge meant that they faced the cancellation of their residency visas and deportation from Australia.

The Magistrate, after a half-hearted lecture about the law and drugs, dismissed the charges against the first-time offenders and recorded no criminal conviction.

He expressed concern from the bench that some of the police charge sheets recorded no weight measurements. This is important because for drug offences the severity of the offence and the associated punishment are based on the weight of the drugs alleged to be in the defendant’s possession. The Magistrate was also concerned that even when the charge sheets included weight measurements, the weight appeared to be a visual estimate only.

The Magistrate also expressed the opinion that the police should not have charged anyone for possession of cannabis cookies.

Sniffer dogs and the courts

All the defendants had been initially identified by sniffer dogs. The use of drug-detection sniffer dogs is still controversial.

In November 2001 the Deputy Chief Magistrate of NSW ruled that ‘Rocky’ the sniffer dog had conducted a search when he was used to detect drugs on people entering an Oxford Street nightclub. Because the search was performed before the police had formed a reasonable suspicion, the Magistrate ruled that the search was illegal and inadmissible in court. Without the search evidence, the police case collapsed.

Interestingly, the Deputy Chief Magistrate also considered the search a violation of Article 17 of the International Covenant on Civil and Political Rights, which states that “no one shall be subject to arbitrary or unlawful interference with his [or her] privacy”.

The DPP appealed the decision to the NSW Supreme Court, where Justice O’Keefe overruled the Deputy Chief Magistrate.[4] He stated that:

The formation of a reasonable suspicion may not depend upon personal observation or sensation. It may depend, for example, on information conveyed to a police officer from…another police officer…a private citizen…[or] a dog. The reactions of the dog in such a case would be no more than a basis for the formation of a reasonable suspicion by the police officer. [5]

Parliament Acts

Parliament also moved swiftly to pass the Police Powers (Drug Detection Dogs) Act 2001 (NSW), which authorises a police officer, without a warrant, “to use a dog to carry out general drug detection” (s.6) on persons at, or entering or exiting:

1. premises where alcohol is sold and consumed (but not any part of the premises where food is served);
2. “a sporting event, concert or other artistic performance, dance party, parade or other entertainment”; or,
3. any train, light rail or bus on a specified route, or any railway station or stop along those routes. (s.7)

If police wish to use the dogs anywhere else, for example in a shopping centre, they must have a warrant (s.8). The police are to take all reasonable steps to ensure the dogs do not touch anyone (s.9(1)).

No right to privacy

So the use of sniffer dogs at the Big Day Out was legal under the Act, since the dogs were used on people exiting the Olympic Park railway station and on their way to a concert.

But the Act is so broad that it authorises the use of sniffer dogs on opera-goers at the Opera House. Of course, it is doubtful that the police would ever dream of harassing such “law-abiding” audiences. This points to the broad discretion exercisable by police under this Act. The police choose which venues to search and they appear to be focussing on venues patronised by younger citizens.

While using dogs to sniff luggage or other objects is less objectionable, the sniffing of people is undeniably an arbitrary interference with privacy. Unfortunately there is no right to personal privacy in Australian law,[6] so it looks like drug-detection sniffer dogs are here to stay. At least until the next legal challenge.

…and the canines of the NSW Police Force can look forward to more Big Days Out.

footnotes

[1] NSW Police, "More than 200 people arrested: Operation Guardian" (media release, 25 January 2004).

[2] NSW Police, "More than 200 people arrested: Operation Guardian" (media release, 25 January 2004).

[3] Peter Holmes, 'Drug arrests at rock festival', Sunday Telegraph (Sydney), 25 January 2004, 17.

[4] DPP v Darby [2002] NSWSC 1157.

[5] DPP v Darby [2002] NSWSC 1157, [49].

[6] see DPP v Darby [2002] NSWSC 1157, [43]. Though it does not affect New South Wales citizens, the Human Rights Act 2004 (ACT) guarantees the right to privacy in the ACT. So the use of sniffer dogs in the ACT might be incompatible with ACT law.