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

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