Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

Case study 1
Grant of authorisation 152
A police officer attached to a local area command in Western Region submitted an application for authorisation
containing four annexures. The first annexure contained background material including a statement that the
Western Region spans in excess of 65% of NSW. The annexure also contained various maps illustrating the
highways in and around the proposed search areas. Under the heading ‘Indictable Seizures Western Region’,
reference was made to the fact that ‘no large scale clandestine drug laboratories have been identified in Western
Region during the last five years, which provides a reasonable suspicion that the vast majority of amphetamine
seized has been transported into the region by road.’
The second annexure contained a map indicating all of the major highways within the Western Region.
The third annexure contained a table of indictable seizures dating back to 2002 for local commands in
Western Region. The table summarised the number of incidents and the amount of drugs seized in each local
area command. The table does not make clear how and where the seizures took place. The table shows that
in 2007, eight indictable quantities of amphetamine and one indictable quantity of ecstasy were seized in the
local area command applying for the authorisation to conduct the operation.
The fourth annexure contains an ‘Indictable Seizure Summary’ with a number of COPS events from across
the region in summary form. Two events relate to the local area command applying for the authorisation. One
of the events refers to an operation in 2002 which uncovered a cannabis plantation resulting in the seizure of 208
plants, 1.839 kilograms of cannabis leaf/heads, and 97.54 grams of cannabis seed. The other event refers to the
execution of a search warrant in 2005 on private premises resulting in the seizure of 8.383 kilograms of cannabis.
The application did not contain any specific intelligence material such as COPS information reports.
The designated officer granted the authorisation noting that the application ‘highlights the detection of
significant amounts of indictable quantities of prohibited drugs throughout the Western Region. Further
information contained within this application suggests the majority of the prohibited drugs are being
transported via major roads and highways.’
The designated officer also noted that ‘within [name of local area command] during 1 January 2002 and
30 October 2007 there were 35 occasions where police detected indictable quantities of prohibited drugs …’
and that ‘three major highways directly interconnect with the [name of command] being [name of highways].
These three highways link directly into the two areas identified within the proposed authorisation areas.’
The above application notes that Western Region covers 65% of the state, so adducing evidence of seizures
across the region, without any reference to the context of the seizures, may not be sufficient to satisfy the threshold
test. In our view, consideration of the likely success of the operation, as required by section 8(2)(b), would seem
to necessitate at least some consideration of the timing and location of the operation. We note that there is no
intelligence in the application related to these issues, and nor does there appear, on the face of the material
presented to the designated officer, any intelligence directly related to the vehicular transportation of prohibited drugs.
However, the use of generalised material to support an application for authorisation may permit inferential reasoning
given that the threshold test is arguably quite broad. A number of applications and authorisations contained what
may be described as reasonable assumptions:
The [name of highway] is a major transport route between Brisbane and Sydney and it is believed that trucks
[transporting drugs] will go through our proposed site [name of site]. 153
The applicant has shown that prior to the seizures [outlined in the application], the vehicles had travelled
through the nominated authorisation areas. 154
NSW Police [Force] intelligence implicates several heavy vehicle transport companies in the use, supply, and
transport of illicit drugs. These vehicles travel the [name of highway] and pass through the sites covered by
the authorisation and will be specifically targeted for this operation. 155
It can be speculated that heavy vehicles or drug couriers transporting indictable quantities of drugs will utilise
differing routes including [name of highway]. 156
In our view, it is appropriate for designated officers to draw inferences from credible information when granting
authorisations to conduct operations along major highways given that previous seizures may not have occurred in
the proposed search area. That is to say, if there is a demonstrated nexus between a previous seizure or intelligence
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003