Police v Darby: The Balance of Rights in Society

The criminal justice system must balance the rights of the individual with the needs and standards of society. This is a difficult task as the wishes of the individual and the standards of the community are not always consistent. The recent case Police v Darby is a key example where the needs of society and social standards are conflicting with individual rights.

The recent case of Police v Darby outlines this clash clearly. Glen Darby the defendant was charged with possession of cannabis. He was walking in a group of about 40, and had just exited an Oxford Street nightclub. Outside the club plain clothed police along with the trial drug detection dog “Rocky” were patrolling the area. Rocky picked Mr Darby out of the crowd and indicated that Mr Darby may have been carrying the illegal substance. Mr Darby was searched by the police and was found to have cannabis in his possession. The Local Court Magistrate Ms Jerram ruled that the search was an illegal due to the fact that the police had not formed a ‘reasonable suspicion’.

Ms Jerram found that under the Drug Misuse and Trafficking Act police could not search a person without having formed a reasonable suspicion. The Deputy Chief Magistrate found that the use of the drug detection dog constituted an illegal search and Mr Darby was acquitted. Ms Jerram also found that the search breached the privacy provision of the international legislation, ICCPR.

The Director of Public Prosecutions appealed Ms Jerram’s decision as he felt that the Magistrate had made an error in the interpretation of the law. The Supreme Court heard the ‘stated case’. Justice O’Keefe revised the decision made my Ms Jerram and found that the search of Mr Darby was a legal one. He stated that the dogs’ sniffing was not a search rather it gave the police the reasonable suspicion needed to search Mr Darby.

Because statute law overrides common law the Governments response to Ms Jerram’s decision was the enactment of the Police Powers (Drug Detection Dogs) Act 2001. The act sets out the polices power to use drug detection dogs in certain public areas. This act however has now been repealed and the provisions for drug detection dogs have been incorporated into the Law Enforcement (Powers and Responsibilities) Act 2002.

As a result of this case and the resulting legislation the rights of the individual have decreased yet the police have gained further powers to protect the community against drugs. In this particular clash society has come out on top. The legislation has taken away individuals privacy and increased places where searches for drugs can take place.

The case of Police v Darby particularly shows the increasing tension in society between the rights of the individual and society. People in all areas of the law are loosing their freedoms not only because of the harsher punishments and increasing police powers but also because of the fear of litigation. I medium must be met where both the freedom of the individual can coincide with societies standards.