Darby v Director of Public Prosecutions

Darby v Director of Public Prosecutions concerned the admissibility of evidence obtained from a search of the appellant's pocket, following an indication by a police sniffer dog. The appellant was charged with drug offences, and the central dispute revolved around whether the dog's actions constituted a search for the purposes of the law, and if so, whether it was lawful. The matter came before the Court of Appeal of New South Wales, with Giles, Ipp, and McColl JJA presiding.

The primary legal issue before the Court of Appeal was whether the actions of the police sniffer dog, which indicated the presence of a prohibited substance in the appellant's pocket through "bunting and ferretting," amounted to a search. This question was crucial for determining the admissibility of the evidence found in the subsequent police search. A related issue was whether the dog's actions constituted a trespass to the person, and whether the police had formed a reasonable suspicion to justify the search.

By majority, the Court of Appeal held that the dog's actions did not constitute a search in the legal sense. The majority reasoned that the dog's behaviour, while indicative, did not involve an intrusion into the appellant's personal space that would be considered a search. Consequently, they found no basis to determine whether the dog's actions amounted to a trespass to the person or whether a reasonable suspicion had been formed. The dissenting judge, however, viewed the dog's actions as both a search and a trespass to the person.

The Court of Appeal, by majority, set aside the order of O'Keefe J remitting the charges to the Local Court and substituted an order remitting the charges to be dealt with in accordance with the law as set out in the judgment. The Court also set aside a declaration made by O'Keefe J and made no order as to the costs of the appeal.