Review of the Police Powers (Drug Premises) Act 2001 - NSW ...

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She is a resident of those particular premises where drugs are sold for and with a, in my submission, a large amount of cash on her on the particular day that she [was spoken] to by the police. An inference is there, a large amount of cash returned, premises openly being used for drug distribution, there is an inference that the Court could draw in respect, to the issue of knowingly… 536 In response to this, the woman’s lawyer argued that if the money found on her was the proceeds of drug sales at the house, “you’d think ... she’d be coming to the drug premises to get the bank notes”, 537 and not returning the money to the house. Her lawyer also pointed out that the woman had been away from the house for three days and had not been present when the controlled drug buys had been conducted. The magistrate found that there was no prima facie 538 evidence that the woman knowingly allowed the premises to be used as drug premises. This finding was on the basis of several factors. Firstly, she was not a continual occupant of the premises, but was “coming and going from time to time”. 539 Secondly, there was no evidence from the undercover operatives or other police that when she was present, or that she had been deliberately turning a blind eye to drug dealing taking place. Had there been evidence of this, the magistrate said that “wilful blindness could certainly at least at a prima facie level satisfy the court as to knowingly”. However, the magistrate found that: …there’s nothing about the circumstances of the defendant’s return to the premises, that take it to the category of wilful blindness and accordingly I do not consider that the prosecution have established that there is a prima facie case because there is no material that could satisfy the court in the whole of the crown case as to any evidence of knowingly allowing. 540 The goods in custody charge that related to the $1,300 found on the defendant was also dismissed, with the magistrate finding that the “link between those actual bank notes and illicit activity hasn’t been established … beyond reasonable doubt”. 541 In the above case, the fact that the defendant had not been a continual occupant of the house was a significant factor in her defence that she had not knowingly allowed her premises to be used as drug premises. Case study 16. Non-continuous occupation of an inner city drug premises A controlled operation had been conducted prior to the execution of a drug premises search warrant in an inner Sydney suburb. Undercover officers had gone to the back lane behind a house and purchased heroin. A drug premises search warrant was executed on the premises early one morning. Simultaneous search warrants were executed on two other houses in the same street. At court, in summing up the prosecution case in relation to a defendant who had been charged with allowing the premises to be used as drug premises, the magistrate said: … there was a controlled operation going on and a number of undercover operatives participated in the controlled drug [buys] on different days and that the sales were conducted it appears from the rear of [address] which is the premises occupied by the defendant. When the house was searched there were a number of drugs on the premises being marijuana and cocaine. As I have mentioned the prosecution has alleged in their submissions that the drugs being sold are heroin. All dealings were done at the rear of the house and there were syringes etc the morning after the defendant had been arrested. 542 The magistrate found that the defendant had not knowingly allowed the premises to be used as drug premises. There were several reasons for this, as the following extract from the judgement shows: 536 Liverpool Local Court, Police v Lan Chau Nguyen, 29 April 2002, p. 5. 537 Ibid. 538 Prima facie means “on the face of it”, and refers to whether there is sufficient evidence to support an allegation that has been made. The prosecution must make out a prima facie case, otherwise the defence will submit that there is no case to answer, and if this submission is successful, the case will be dismissed. 539 Liverpool Local Court, Police v Lan Chau Nguyen, 29 April 2002, p. 7. 540 Ibid. 541 Ibid, p. 8. 542 Downing Centre Local Court, Police v Eric John Honeysett, 22 May 2003, p. 33. 100 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
The defendant says he was not there the last couple of days, he was not sure who was staying there, not aware of what was going on … The defendant’s submissions are that the weight relies on the evidence of the prosecution … that there was no evidence linking the defendant to any transactions, he was not observed, there was no surveillance of him and all he appears to be that he was the lessee of the premises and it seems to be uncontradicted that the premises are openly used by a number of people, a bit of an open house, and communal area. 543 In their submission to our discussion paper, the State Crime Command commented on the fact that the offence of allow premises to be used was found not proven in this case, stating that: Advice from the case officers of these matters indicate that difficulties with the “allow premises to be used” arose in providing direct evidence that the owner knew that the premises were being used as a drug premises. It did not appear that the observations carried out by police in the days prior to the execution along with the items found in the houses (syringes, balloons, foil, small amount of drugs) were sufficient to show that the owner was aware of these activities. 544 Case study 17. A fortified, non-domestic premises in Cabramatta Police had prior intelligence in relation to the premises. They went to the unit one afternoon, and spoke to several drug users who had just left it, and who admitted having bought drugs from the unit. That day, police executed a drug premises search warrant on the unit. 545 Police found three Asian men on the premises. Two men, aged 30 and 44, were charged with on, enter, leave drug premises. Each received a 12 month term of imprisonment. However, on appeal, each sentence was reduced to four months. The 43 year old occupant of the unit was charged with allowing his premises to be used as drug premises. He represented himself at court. He believed that he had to plead guilty because, in his words, “after I realise that there was someone in my house sell drug, I admitted”. 546 His plea was later changed to not guilty. The magistrate found that, beyond reasonable doubt, the premises were drug premises. Outlining why he had determined this, the magistrate noted that police had seen a number of people coming to the premises in the early hours of the morning, and going to a window: …there is certain conclusions that the Court can in fact draw from people approaching the house at that hour of the morning with the door being closed, the door being fortified, the hole in the screen, the needle and foil in a prominent place in the kitchen, the razorblade being there, which circumstantially, in my view, could lead to the finding, beyond a reasonable doubt, that the premises were a drug house. 547 However, the magistrate found that the only evidence that he knowingly allowed the premises to be used as drug premises was some of the indicia which is said to support the drug house. The magistrate said: Of that indicia, there is no evidence that this defendant was involved in the supply. There is no evidence that this defendant - or any documents tie him with supply. There is no evidence which said that it came from the people who attended came to his window, and nor is there any evidence that directly points to his knowledge. IN MY VIEW, THERE IS A REAL DOUBT IN RELATION TO WHAT HIS KNOWLEDGE WAS, AND IT HAS TO BE PROVEN BY MORE THAN THE PRESENCE AT THE PREMISES, DESPITE THE FACT THAT HE HAS A CONNECTION TO THAT PREMISES BY VIRTUE OF THE LEASE. PROVIDED THE FACT THAT THERE IS THAT DOUBT ON THE ISSUE OF KNOWINGLY ALLOWING IT TO BE USED AS DRUG PREMISES, I FIND THE OFFENCE DISMISSED. I FIND IT NOT PROVEN BEYOND A REASONABLE DOUBT, THE INFORMATION IS DISMISSED [original emphasis]. 548 543 Ibid. 544 NSW Police, Submission, received, 13 August 2003. 545 This case is also discussed in the chapter on the use of the Drug Premises provisions in Cabramatta. 546 Liverpool Local Court, Police v. Dang Nihn Nguyen, 20 February 2002, p. 5 547 Ibid, p .8. 548 Ibid, p.8. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 101
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Review of the Police Powers (Drug P
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Contents Preface ..................
Page 5 and 6:
Chapter 11. Drug move-on powers in
Page 7 and 8:
Acknowledgements This report was re
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Part One. Background. Chapter 1. In
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Drug offences, unlike for example,
Page 13 and 14:
elieve is in a public place with th
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Chapter 2. Methodology In this chap
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2.3.5. Health data NSP distribution
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As the table indicates, more than o
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2.4.7. Complaints The NSW Ombudsman
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NSW Police advised us that calculat
Page 25 and 26:
Another data limitation is that COP
Page 27 and 28:
Chapter 3. Legislative survey This
Page 29 and 30:
Once police have entered the suspec
Page 31 and 32:
The table below sets out the penalt
Page 33 and 34:
(c) that the nature and extent of t
Page 35 and 36:
The Act contains four additional in
Page 37 and 38:
A fortification removal notice is r
Page 39 and 40:
For example, section 39(3) of the Q
Page 41 and 42:
Part Two. Drug premises Chapter 4.
Page 43 and 44:
In the police training manual on th
Page 45 and 46:
Case study 2. Drug premises search
Page 47 and 48:
4.2.4. Presenting the application b
Page 49 and 50: A Crime Manager we interviewed from
Page 51 and 52: applications. In this Act, an inves
Page 53 and 54: Chapter 5. The definition of drug p
Page 55 and 56: 5.2. Recommendation That Parliament
Page 57 and 58: 5.5.2. Section 11(2)(b): fortificat
Page 59 and 60: In our chapter on Cabramatta, we di
Page 61 and 62: The woman was found guilty of allow
Page 63 and 64: 5.5.5. Means or devices for drug us
Page 65 and 66: Number of Premises Figure 7. Razor
Page 67 and 68: However, no other evidence of drug
Page 69 and 70: • magnum revolver and a 0.357 mag
Page 71 and 72: 5.5.8. Section 11(2)(g): large amou
Page 73 and 74: The magistrate noted that there wer
Page 75 and 76: In relation to the money located on
Page 77 and 78: 5.7.6. Cars as drug premises As we
Page 79 and 80: … rather than being on the edge o
Page 81 and 82: Chapter 6. The Drug Premises Act -
Page 83 and 84: • the offence of being found on,
Page 85 and 86: With reverse onus, we didn’t have
Page 87 and 88: In the following section, we will d
Page 89 and 90: Officers from the State Crime Comma
Page 91 and 92: The second reading speech, which gi
Page 93 and 94: In the granny flat, police found ca
Page 95 and 96: Table 6. Pleas entered and court ou
Page 97 and 98: The magistrate said that he had a r
Page 99: 13. Allowing use of premises as dru
Page 103 and 104: Figure 13: Ages of people charged w
Page 105 and 106: Table 12. Number of charges for var
Page 107 and 108: Chapter 7. Cabramatta 7.1. Introduc
Page 109 and 110: No. of Drug Premises Figure 14: Num
Page 111 and 112: Table 13. Information about drug pr
Page 113 and 114: It should be clear that this legisl
Page 115 and 116: The unit was in disarray, with spar
Page 117 and 118: 7.5. Level of drug supply the law i
Page 119 and 120: 7.5.3 Firearms, weapons and high le
Page 121 and 122: 7.6. Charges laid under the Drug Pr
Page 123 and 124: 7.6.4. Young Asian people and drug
Page 125 and 126: Of these 52 people, 31 people pled
Page 127 and 128: 7.8. Conclusion: Impact of the Drug
Page 129 and 130: By way of comment, the continuing a
Page 131 and 132: Chapter 8. Targeting drug supply Pa
Page 133 and 134: Table 18. Drug Misuse and Trafficki
Page 135 and 136: Low level drug suppliers are more l
Page 137 and 138: Other forms of organisation in evid
Page 139 and 140: Table 19. Drugs Located, State-wide
Page 141 and 142: Table 23. Drugs located, Northern R
Page 143 and 144: However, the submission concluded b
Page 145 and 146: To begin with, telephone intercepts
Page 147 and 148: The prohibited drugs that were loca
Page 149 and 150: One factor that appears to have per
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