QUESTIONS of LAW RESERVED (NO 3 of 1998) No. SCGRG-98-87 Judgment No. S6696 - [1998] SASC 6696

QUESTIONS OF LAW RESERVED TO FULL COURT
(NO 3 OF 1998)

PURSUANT TO SECTION 350(2)(A) OF CRIMINAL LAW CONSOLIDATION ACT, 1935

R v HOARE

Full Court
Coram: Prior, Olsson and Williams JJ

Olsson J (ex tempore)

These are two short, but important, questions reserved for the consideration of this Full Court by a District Court Judge, at the direction of another Full Court dated 20 March 1998. The direction was given during the pendency of a trial before the learned Judge, pursuant to the provisions of section 350 of the Criminal Law Consolidation Act, 1935.

The relevant facts giving rise to the questions are not in dispute.

The police were in receipt of information to the effect that cannabis was frequently carried by bus from South Australia to the eastern states. They accordingly established an operation at the Department of Transport weighbridge on the Sturt Highway at Blanchetown, whereby passenger bus operators would be requested to permit them to conduct random bus searches.

On 24 March 1997 the accused Hoare was a passenger on a McCafferty’s coachline bus travelling from Adelaide to Sydney. The bus compulsorily stopped at the Blanchetown weighbridge to be weighed. Pursuant to the above operation, police officers approached the driver and obtained his permission to allow them to enter the cabin and luggage compartment of the vehicle with a sniffer dog, trained to detect the presence of cannabis.

The sniffer dog entered the luggage compartment of the bus and gave a positive response to a suitcase stored in it. A police officer removed the suitcase from the luggage compartment, with the concurrence of the bus driver. The driver identified the accused as its owner.

A police officer spoke to the accused. He said to him that he had reasonable cause to suspect that the suitcase contained an illegal drug. He asked whether the accused had seen the suitcase before. When the accused denied having done so the bus driver challenged him, whereupon the accused admitted the suitcase was his, that it contained cannabis and that he was a drug courier.

Acting pursuant to section 68 of the Summary Offences Act, 1953, the police then opened and searched the suitcase. It was found to contain 5.32 kilograms of cannabis.

It is not disputed that, although the police had the permission of the bus driver to search the luggage hold of the bus, no permission was sought or obtained from the accused or any other passenger for the sniffer dog to smell near and adjacent to their luggage whilst it was in the luggage compartment.

According to the declaration of the bus driver, the accused boarded the bus at Salisbury. He handed the suitcase to the driver, who tagged it and placed it in the near side cargo bin of the bus. The plain inference is that, in the ordinary course, the suitcase and other passenger luggage would remain in the cargo bin under the control of the driver, until, ultimately, he re-opened the bin and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: QUESTIONS of LAW RESERVED (NO 3 of 1998) No. SCGRG-98-87 Judgment No. S6696 [1998] SASC 6696
Case: [1998] SASC 6696
Decision Date: 22 May 1998

CaseChat Overview and Summary

In the matter of R v Hoare, the Full Court of South Australia was tasked with addressing two critical questions of law reserved by a District Court judge. These questions pertained to the legality of the use of a sniffer dog by police during a random bus search operation, which resulted in the discovery of a large quantity of cannabis in the luggage of the accused. The court was required to determine whether the use of the sniffer dog was unlawful and, if so, the nature of that unlawfulness, as well as whether there was evidence to support the assertion that the search of the accused's luggage began when the dog commenced sniffing around it.

The reasoning of the court centred on the interpretation of the term "search" within the context of the relevant statutory provisions. The court held that the use of a sniffer dog did not constitute a search, as it involved no physical intrusion or trespass into the suitcase. The court emphasised that a search typically implies some physical intrusion for examination purposes, and a mere sensory perception of an odour does not equate to a search. The court further clarified that even if sniffing around the luggage could be construed as a search, the bus driver had the lawful authority to permit the police to use the sniffer dog, thus negating any claim of unlawfulness. The court concluded that the evidence did not support the argument that the search of the luggage began when the dog commenced sniffing around it, as the dog's detection of the scent was merely an act of identification, not a search.

The final orders of the court were that both questions reserved were answered in the negative. The use of the sniffer dog was not unlawful, and there was no evidence to support the claim that the search began when the dog started sniffing around the luggage. The reasoning of the trial judge was found to be erroneous, and the decision was upheld by the Full Court.

Orders