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

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The NSW Police audit also found that while one LAC might record a group move-on as one move-on incident, another LAC might record a group move-on as a separate incident for each person moved on. The NSW Police audit recommendations included that Standard Operating Procedures (SOPS) be developed for the use, recording and verification of these events, and that a “refresher” training package be rolled out to all police as a priority. In addition, it was recommended that a State-wide memorandum be circulated to all commanders directing a system of quality assurance for COPS entries to be implemented in all commands, and requiring duty officers and/or crime managers to audit events on a regular basis. We are currently in discussions with NSW Police about the implementation of these recommendations. 2.5.3. Information about drug premises search warrants One of the most significant limitations in the data available for our review of the drug premises provisions was that NSW Police were only able to provide information about instances in which the Drug Premises Act was used and charges were laid. This had a particular impact on our scrutiny of drug premises search warrants. NSW Police advised us that that the COPS database is not able to report on all drug premises search warrants that were executed. Thus, for example, if police executed a drug premises search warrant but did not lay charges under the Drug Premises Act, the relevant event narrative was not included in the reports that were provided to us by NSW Police. The absence of this information means that we have been unable to investigate several important issues including: • the total number of drug premises search warrants issued during the review period • the number and nature of instances in which drug premises search warrants were applied for and executed, but no charges laid and • the number of applications for drug premises search warrants that were not granted by a magistrate, or not executed by NSW Police. Clearly, these are important questions. For example, the absence of information about drug premises search warrant applications that were not granted by the magistrate means that any issues flowing from unsuccessful applications have not been examined. We have, however, been advised by local police of two instances in which drug premises search warrants were executed but no charges under the Act were laid and these are discussed in this report. However, we do not know how often this happened across the state. 75 Thus when we refer to the use of the drug premises provisions in this report, we only refer to instances in which charges were laid. 2.5.4. Information from audited commands Another limitation on the information available to us was that police in the ten commands that we audited were not always able to provide the documents that we requested. Search warrants generate a large quantity of documentation and police do not always keep copies of the relevant documents. For example, we only received a small proportion of drug premises search warrant applications so it has not been possible to conduct a systematic analysis of the basis upon which search warrants were applied for. In addition, the local court system for recording search warrant applications could not identify a drug premises search warrant from other types of search warrants. Thus it was not possible to use local court records of drug premises search warrant documents. We have documented how many and what type of document we received from each police command in the Appendix of this report. Another factor impacting on this review was that it was not until May 2002, 11 months after the commencement of this legislation and our review, that access to search warrant documents from LACs was negotiated with NSW Police. This delay reduced the time available to conduct research for this review. 75 These instances are discussed in the chapter, “Drug premises search warrants”. 26 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
Chapter 3. Legislative survey This chapter sets out: • the powers in the Drug Premises Act • the offences that have been created by the Act • related legislative powers in NSW such as those that are contained in the Search Warrants Act 1985 • other legislation relevant to the operation of the Drug Premises Act, such as the Drug Misuse and Trafficking Act 1985 • an overview of similar legislative provisions in other Australian jurisdictions and • an overview of the new drug move-on powers, and similar provisions in other jurisdictions. 3.1. The Police Powers (Drug Premises) Act The Police Powers (Drug Premises) Act gives police powers in respect of drug houses, referred to in the legislation as drug premises. The Act enables police to apply for a warrant to search suspected drug premises and creates offences relating to drug premises. The Act stipulates that drug premises are “any premises [that] are being used for the unlawful supply or manufacture of any prohibited drug”. 76 The definition of premises in the Act is: “premises” includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not), and any part of any such structure, building, aircraft, vehicle, vessel or place. 77 According to this definition, it is possible for a flat, a house, a car or a parking lot 78 to be considered drug premises. The Act defines a prohibited drug as: a substance that is a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , but does not include cannabis leaf, cannabis oil or cannabis resin [emphasis added]. 79 Section 11 of the Act provides eight indicia to which regard may be had in determining if premises are being used for the unlawful supply or manufacture of drugs: (a) evidence that a police officer authorised by law to enter the premises was wilfully prevented from, or obstructed or delayed in, entering or re-entering those premises or any part of those premises, (b) evidence of the external or internal construction of the premises, including any external or internal door of, or means of access to, those premises that is found likely to have been fitted with a bolt, bar, chain, or any means or device for the purpose of preventing, delaying or obstructing the entry or re-entry into those premises of such a police officer or any other person, or for giving an alarm in case of such entry or re-entry, (c) evidence of a person acting as a lookout to warn persons on the premises of the approach of police officers or other persons, (d) evidence that there was found on the premises, or in the possession of a person on those premises, any syringe or other means or device used in the supply, manufacture or use of a prohibited drug, (e) evidence that there was found on the premises, or in the possession of a person on the premises, a firearm or prohibited weapon the possession of which is unlawful, (f) evidence that there was found on those premises any documents or other records, including computer records, that appear to have been kept or used in connection with the unlawful supply or manufacture of a prohibited drug, (g) evidence that there was found on the premises any large amount of money that is not accounted for by the owner or occupier of the premises, (h) evidence that there were found on those premises persons who appeared to be affected by a prohibited drug. 80 76 Police Powers (Drug Premises) Act, s. 5(1). 77 Police Powers (Drug Premises) Act, s. 3. 78 It is most likely that the Act was intended for use on “enclosed” premises. However, because the definition of premises in section 3 of the Act also includes a “place (whether built upon on not)”, the Act could also apply to a “place” such as a parking lot. 79 Police Powers (Drug Premises) Act, s. 3. 80 Police Powers (Drug Premises) Act, s. 11(2). NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 27
Page 1 and 2: Review of the Police Powers (Drug P
Page 3 and 4: Contents Preface ..................
Page 5 and 6: Chapter 11. Drug move-on powers in
Page 7 and 8: Acknowledgements This report was re
Page 9 and 10: Part One. Background. Chapter 1. In
Page 11 and 12: Drug offences, unlike for example,
Page 13 and 14: elieve is in a public place with th
Page 15 and 16: Chapter 2. Methodology In this chap
Page 17 and 18: 2.3.5. Health data NSP distribution
Page 19 and 20: As the table indicates, more than o
Page 21 and 22: 2.4.7. Complaints The NSW Ombudsman
Page 23 and 24: NSW Police advised us that calculat
Page 25: Another data limitation is that COP
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 and 100:
13. Allowing use of premises as dru
Page 101 and 102:
The defendant says he was not there
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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