Hoare v The Queen

[1999] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A23 of 1998

B e t w e e n -

PETER MICHAEL HOARE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 11.14 PM

Copyright in the High Court of Australia

MR P.N. WAYE:   If the Court pleases, I appear for the applicant with MR G.N.E. AITKEN.  (instructed by G.E. Aitken)

MR P.J.L. ROFE, QC:   If the Court pleases, I appear with my learned friend, MS M.L. RYAN, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia)

GLEESON CJ:   Yes, Mr Waye.

MR WAYE:   This application involves two unique matters which have not been decided in Australia or in the United Kingdom, although there are decisions on similar situations in the United States.  The first question is what constitutes a search?  That has not been judicially defined.  Whether the use of a sniffer dog constitutes a search, and the other question is can a common carrier or the servant of a common carrier authorise a search or an examination of a passenger’s luggage?

Our submissions in regard to the use of a sniffer dog contrary to the decision of the Full Court is that it does constitute a search.  It is an aid to a search by the authorities.  In a similar manner, the authorities that I have set out in my outline use telephone intercepts, listening devices, electronic surveillance.  The use of such aids to criminal detection, of course, are subject to the legislation.  They are authorised by legislation. 

In the case with which we are dealing, it is conceded that when the use of the sniffer dog with the consent of the coach driver to examine the luggage in the luggage compartment of the bus, that constituted a search.  Why else was the dog being used other than to detect illegal substances?  It is our submission that that requires legislative authority.

In our outline we drew the obvious comparison in South Australia as what I have described as the “fruit fly legislation”.  The fruit fly legislation enables officers to conduct random searches looking for vegetable material.  They could not do that if there was no enabling legislation. 

In this case it is conceded that the bus driver gave consent to the police to search.  Everybody involved in what happened, the police officers, the bus driver, all regarded what the dog was doing was a search.  It is our submission that such a search is an invasion of privacy, is an invasion of the rights of the owner and owners of the luggage in the luggage compartment.  It was not only an invasion of those rights but, as is set out in the application book, the bus driver also gave permission to the police to search the passengers’ compartment.  In fact, as the transcript shows, the bus driver said to the passengers, “If you object to the dog coming in the passengers’ compartment, you may leave”.

As I have said, there is no decision in Australia as to what, actually, is the search.  We draw the analogy it can be a search such as the use of binoculars looking into a house.  That is searching.  The definition and the dictionary definition of a search is set out in the outline.  We ask the question, “What was the purpose of the dog going into the luggage department if it was not looking for something or endeavouring to scent something?”, because sensory perception can be involved in a search.

I then refer to the American authorities.  There is a great deal of authority on what constitutes a search and, particularly, there are a large number of cases as to the use of a sniffer dog in searching luggage.  There are majority decisions which say one, in America, in dealing with the Fourth Amendment in regard to the privacy of the citizen - and incidentally, my friend has referred and it is included in the authority book to Malone.  Malone cites the Fourth Amendment but it is interesting that Sir Robert Megarry said that Halsbury recognises that the Fourth Amendment emanates from the principles of common law of the United Kingdom. 

GLEESON CJ:   May I clear one thing up, please, Mr Waye.  There were two issues as I understand it.  One was whether the activities of the dog constituted a search and the other was whether the common carrier could authorise the search.

MR WAYE:   Yes.

GLEESON CJ:   If the answer to the first question is no, does the second question arise?

MR WAYE:   In the circumstances of this application, no.

GLEESON CJ:   Thank you.

MR WAYE:   Because it would not be relevant.

GLEESON CJ:   Thank you.

MR WAYE:   If the Court pleases, we say in regard to the search that some guidance can be obtained from the American authorities.  I do not know whether the Court has had an opportunity to look at those authorities.  For example, in the case of the State of Arizona v Morrow – that is on the Supreme Court of Arizona ‑ ‑ ‑

GLEESON CJ:   Well, I think they are also conveniently summarised, are they not, on pages 24 and 25 of the application book?

MR WAYE:   They are, some of them, yes, your Honour.  Perhaps I can say in regard to the American authorities there is a divergence of opinion.  Some of the judges in America say and adopt the argument of the Director here that a dog sniffing for odour emanating from a suitcase does not constitute a search and is not an invasion of privacy.

Contrary decisions are that it is.  Simply to put a dog in the position of a person’s luggage for the purpose of sniffing it constitutes an invasion of privacy and is a search.  This case, in my respectful submission, gives this Court an opportunity of defining in general terms the right to privacy of our citizens, in what areas are we entitled to be protected from the invasion of our rights.  What are our rights of privacy?  There is no decision yet that I know of that deals with that question which is of importance to the community.

Another major question is this is a random search.  The police went through the formalities of properly stopping the coach for the purposes of weighing, which was probably a ruse but it is a legal ruse and it is so conceded.  The bus driver said and is the practice, always give the permission to search.  There is no reasonable suspicion, no suspicion at all attached.  It is a random search.

GLEESON CJ:   The bus driver did not purport to give them permission to open anybody’s luggage, did he?

MR WAYE:   No, he did not.

GLEESON CJ:   He purported to give them permission to do what they did, that is to say, to send a sniffer dog sniffing around the luggage.

MR WAYE:   But, of course, what is the purpose of sending the sniffer dog?  If the sniffer dog gives a positive reaction, obviously, the police officers would take possession of the article or the suitcase.

GLEESON CJ:   Or do exactly what they did in the present case, that is ask the applicant whether it was his and take it from there.

MR WAYE:   Well, your Honour, it is conceded that once the sniffer dog reacts to a particular piece of luggage, the police officer then has a reasonable suspicion and is entitled then to take possession of the suitcase and to conduct further inquiries.

CALLINAN J:   Mr Waye, say it was not a sniffer dog, that it was a human being who smelled a prohibited substance with a particularly strong odour.  He is not expected to close his nostrils and then not to go ahead to search.  That is a conceivable situation, is it not?

MR WAYE:   Your Honour, in regard to that, why would an independent person be in the vicinity or be sniffing at a piece of luggage in a luggage compartment?

GLEESON CJ:   Is a police officer who smells the breath of a drunk driver conducting a search?

MR WAYE:   No, he is conducting part of his investigation to that extent because he is not searching, he is not looking for anything other than signs of intoxication.  One could say, in a broad sense, he is searching for signs of intoxication and that is one of them, the smell of alcohol on the breath, but it would, simply, in that case, in my submission, be a reason for the police officer to further investigate the person with odour of alcohol on his breath.

Indeed, in the broad sense, what is the search?  It has not been defined.  Why were the police putting the sniffer dog in the luggage compartment and, of course, in the passenger’s compartment if they were not looking for something and looking for something in the common law dictionary meaning is the search.  What right have they to do so other than the consent of the bus driver.  That, of course, raises the other issue.

I set out what, it is our submission, is the law in regard to common carriers in the outline.  The common carrier accepts a passenger on payment of a fee and, at common law, that passenger is entitled to a reasonable amount of luggage.  In my submission, the common carrier has no possession of that luggage other than his obligation in law to safely carry it and not be damaged.  The onus is on the passenger to see there is nothing dangerous such as explosives in the luggage container.  That does not, in our submission, enable the common carrier or his servant to give permission to police officers or people in authority to examine that luggage.

Similarly, if the owner of the luggage has it in his hand and it was going through an airport, for example, there is no authority in the person with the sniffer dog, the policeman, to come near and sniff that luggage because he is then searching and, without a reasonable suspicion, he cannot do so.

Many of the cases in America, of course, of when the sniffer dog has been used there has been prior information given to the police officers or the

law enforcement people who are in possession of a sniffer dog that the person carrying the luggage is suspected and the police are then on the lookout for that particular person with that particular piece of luggage.  But, the case at bar, this is a completely random search.  It is a practice conducted, from the evidence shown, in five States.

It is a convention, practically, between the police officers and the driver that the driver consents and the police officers then put the sniffer dog through the bus luggage compartment and passengers’ compartment.  Is that permitted?  There is no legislation permitting it.  Is it a breach of the passengers’ privacy?  One of the aspects of a passenger and a common carrier is that he be, in the reasonable course of travel, taken to his destination.  Here there is a delay.  As it is said, the bus is weighed, the police officer said to the bus driver, “Park over there” and then, of course, knowing the answer, asks the bus driver for permission to put the dog into the bus.  Everybody concerned, as I said, the bus driver and the police officers, regard the actions of the dog as searching and our question is, what else was it doing if it was not searching?

It is a question of importance (1) the right of privacy about citizens; (2) this practice of random searching with police sniffer dogs which is being practiced in regard to vehicles of public transport and buses throughout Australia.  There are a lot of cases waiting on the decision of the Court should it give leave and also a decision was it the rights and obligations of the common carrier.  We say that gives rise to a special leave on the question of importance.

GLEESON CJ:   Thank you, Mr Waye.  We do not need to hear you, Mr Rofe.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Full Court of the Supreme Court of South Australia to warrant the grant of special leave and the application for special leave to appeal is refused.

AT 11.31 AM THE MATTER WAS CONCLUDED