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

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Table 10. Allowing premises to be used as drug premises (first offence) BOCSAR State-wide statistics Plea Guilty (n=17) Not guilty (n=16) Plea not entered or N/A (n=32) Adjourned to Adult Drug Court 0 0 0 Convicted ex parte (non-appearance) 0 0 5 Conviction proven 14 3 1 Dismissed: after hearing 0 10 6 Dismissed: mental health 0 0 0 Dismissed: no evidence offered 2 3 17 Dismissed: on appearance 0 0 0 Dismissed: stood out of list 1 0 3 Source: NSW Local Criminal Courts Statistics 1 July 2001 – 30 June 2003, BOCSAR. Table 11. Allowing premises to be used as drug premises (first offence) BOCSAR State-wide statistics: Penalty type Penalty Type Occurrence Imprisonment (3 – 8 months) 6 Suspended sentence 1 Community service order 1 Bond with supervision 1 Bond without supervision 1 Fine 1 Total 11 Source: NSW Local Criminal Courts Statistics 1 July 2001- 30 June 2003, BOCSAR. 6.8.4. Offences that relate to the obstruction of police during the execution of a drug premises search warrant In addition, there are three offences in the Drug Premises Act that relate to the obstruction of police during the execution of the search warrant. A person may be convicted of these offences even if premises are not proven to be drug premises, and the maximum penalty for each of these offences is 12 months imprisonment or a fine $5,500, or both. These offences are: • to wilfully prevent a police officer from entering or re-entering premises 558 • wilfully obstruct or delay a police officer from entering or re-entering premises 559 • give alarm for the purpose of either notifying another person of the presence of police, or delaying police entry. 560 It is also an offence under the Drug Premises Act for a person to fail to give their name and address to police, and the maximum penalty for this offence is a fine of $5500. A small number of charges were laid for each of the above offences over the review period, as the table below indicates. 558 Police Powers (Drug Premises) Act, s. 9(1)(a). 559 Police Powers (Drug Premises) Act, s. 9(1)(b). 560 Police Powers (Drug Premises) Act, s. 9(1)(c). 104 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
Table 12. Number of charges for various other offences Drug Premises Act Offence Number of Charges laid Wilfully prevent a police officer from entering or re-entering premises 561 0 Wilfully obstruct or delay a police officer from entering or re-entering premises 562 6 Give alarm for the purpose of either notifying another person of the presence of police, or delaying police entry 563 Fail to provide, without a reasonable excuse, full name and address to police 564 0 Source: COPS database 2 6.9. Conclusion It is not the role of this review to make policy recommendations about the appropriateness of the reverse onus of proof – that is a matter for Parliament. We acknowledge the strong competing policy interests on this issue, and the practical implications for placing an onus on the defendant in criminal proceedings. We note that where defendants pleaded not guilty to the reverse onus offences, the offences were proven in less than one-third of cases for section 12 offences, and not at all for section 14 offences. It is important to note that in relation to these offences, we only have information about a small number of pleas and court outcomes. However, a particular matter is the application of the section 12 offence to residential premises. Our research findings suggest that the statutory defence for being found on entering or leaving drug premises, of having a lawful purpose or lawful excuse to be on the premises, does not adequately reflect the type of defence which it appears that Parliament was attempting to create when it passed the legislation. This difficulty is illustrated by cases where defendants have relied on matters such as their entitlement to be on the premises as a result of a lease, to establish that they had a lawful excuse to be on the premises. These matters are highlighted by the discussion above about dual purpose on residential premises above. In such cases, the courts have had to grapple with the issue of whether this in itself was sufficient to constitute a defence under the legislation. Courts have also considered whether other matters, such as the suspicions or knowledge of the defendant as to the use of the premises as drug premises, were sufficient to show that the defendant did not have a lawful excuse or purpose. In practice, it appears that the courts have been concerned to determine whether the defendant had knowledge of the use of the premises as drug premises. In short, the real issue appears to have been the question of knowledge, rather than the legality of the person’s presence on the premises. Given the difficulties in this area, it appears to us that the defence of lawful purpose or lawful excuse may not adequately reflect Parliament’s intentions in this area. Consideration should be given to the amendment of this statutory defence to better reflect the circumstances and/or state of mind which a person must prove to make out an adequate defence. We note that in this respect, the offence under section 14 of organising, conducting, or assisting in organising or conducting drug premises requires the defendant to prove that they did not know, or could not reasonably have been expected to have known that the premises were drug premises. This defence means in effect that even if a person did not consciously recognise that the premises were drug premises, they are liable to conviction if they were negligent in not having that recognition. This defence is clearly centred on the question of knowledge. It may be that Parliament considers that this defence focuses on the real issues involved. Clearly, the nature of the defence that Parliament wishes to create for being found on, entering or leaving drug premises needs to be the subject of further consideration. In the case of allowing premises to be used as drug premises, Parliament has created an offence where the prosecution must establish beyond reasonable doubt a positive state of knowledge on the part of the defendant. In those circumstances, it is not surprising that the prosecution has sometimes found it difficult to establish the requisite standard of knowledge needed to establish the offence. 561 Police Powers (Drug Premises) Act, s. 9(1)(a). 562 Police Powers (Drug Premises) Act, s. 9(1)(b). 563 Police Powers (Drug Premises) Act, s. 9(1)(c). 564 Police Powers (Drug Premises) Act, s. 9(2). NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 105
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Review of the Police Powers (Drug P
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Contents Preface ..................
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Chapter 11. Drug move-on powers in
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Acknowledgements This report was re
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Part One. Background. Chapter 1. In
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Drug offences, unlike for example,
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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
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Another data limitation is that COP
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Chapter 3. Legislative survey This
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Once police have entered the suspec
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The table below sets out the penalt
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(c) that the nature and extent of t
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The Act contains four additional in
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A fortification removal notice is r
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For example, section 39(3) of the Q
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Part Two. Drug premises Chapter 4.
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In the police training manual on th
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Case study 2. Drug premises search
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4.2.4. Presenting the application b
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A Crime Manager we interviewed from
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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 and 100: 13. Allowing use of premises as dru
Page 101 and 102: The defendant says he was not there
Page 103: Figure 13: Ages of people charged w
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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