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

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defence is on the balance of probabilities, rather than the higher threshold of beyond reasonable doubt. The reversal of the onus of proof in these two offences was one of the most controversial aspects of the Drug Premises Act, and is discussed more fully later in this report. However, for an owner or occupier 99 to be found guilty of allowing premises to be used as drug premises, the prosecution must prove that the owner/occupier knowingly allowed their premises to be used for this purpose. Therefore, unlike the two offences discussed above, the onus of proof is not reversed. In order to successfully prosecute a person for this offence, there must be some act or conduct that proves that the defendant had this knowledge. For the purposes of this section, a person assists in organising or conducting drug premises if, for example, the person acts as a lookout, door attendant or guard in respect of any premises that are organised or conducted as drug premises. In addition, the Drug Premises Act amended the criminal assets confiscation provisions contained in the Criminal Assets Recovery Act 1990 so that these provisions apply in relation to a second or subsequent offence of allowing premises to be used as drug premises. 100 The Criminal Assets Recovery Act provides for the restraining or confiscation of assets, and an order to do so can be granted by the Supreme Court. 101 3.1.3. Other offences in the Drug Premises Act Several other offences in the Drug Premises Act relate to the obstruction of police during the execution of the search warrant. Section 9 of the Act provides: (a) If a police officer is authorised under this Part to enter any premises, a person must not, (b) wilfully prevent the officer from entering or re-entering those premises or any part of those premises, or (c) wilfully obstruct or delay the officer from entering or re-entering those premises or any part of those premises, or (d) give an alarm or cause an alarm to be given for the purpose of: (i) notifying another person of the presence of the officer, or (ii) obstructing or delaying the officer from entering or re-entering those premises or any part of those premises. 102 It is also an offence under the Drug Premises Act for a person to fail to give their name and address to police. 103 It is important to note that it is not necessary for the prosecution to prove that premises are drug premises for a person to be convicted of these offences. 3.1.4. Penalties for offences in the Drug Premises Act Cases involving offences under the Drug Premises Act are heard by a magistrate in a local court, except in relation to second or subsequent offences under the key provisions in the Act. These offences attract higher penalties (see table below), and are dealt with on indictment unless an election is made under the Criminal Procedure Act 1986 for the matter to be heard by a magistrate in a local court. 104 If such an election is made, the maximum penalty that can be imposed is a two year term of imprisonment, or a fine of $11,000. 99 “Occupier” is defined to include a lessee or sublessee who is not the owner of the premises: Police Powers (Drug Premises) Act s 3 (1). 100 Criminal Assets Recovery Act, s. 6 (2) (e1) and s.6 (4). 101 For a discussion of the provisions of the Criminal Assets Recovery Act, including its application to drug offences, see Peter Zahra, Robert Arden, Mark Ierace and Beverly Schurr, Drug Law in NSW, Second Edition, Federation Press, Sydney, 1999 pp. 315-342. 102 Police Powers (Drug Premises) Act, s. 9. 103 Police Powers (Drug Premises) Act, s. 9. 104 Police Powers (Drug Premises) Act, s. 15. 30 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
The table below sets out the penalties for offences in the Drug Premises Act. Table 3. The Police Powers (Drug Premises) Act, drug premises offences and penalties Offence group Offence Penalty Drug premises offences Offences that relate to obstructing a police officer executing a search warrant Being on, entering or leaving drug premises 105 Allowing use of premises as drug premises 106 Organising drug premises 107 Wilfully prevent a police officer from entering or re-entering premises 108 Wilfully obstruct or delay a police officer from entering or re-entering premises 109 Give alarm for the purpose of either notifying another person of the presence of police, or delaying police entry 110 First offence: 12 months imprisonment, or a fine of $5,500, or both. Second offence: 5 years imprisonment, or a fine of $55,000, or both. 12 months imprisonment or a fine $5,500, or both Fail to provide, without a reasonable excuse, full name and address to police 111 Maximum penalty is a fine of $5,500 112 3.2. Search warrants, drug search powers and other relevant legislation in NSW It is important to place the Drug Premises Act in the context of legislation that is often used in conjunction with this Act. Aspects of these laws that are relevant to the operation of the Drug Premises Act are summarised below. It is also noted that two other drug laws, the Police Powers (Internally Concealed Drugs) Act 2001 and the Police Powers (Drug Detection Dogs) Act 2001, have come into operation since the commencement of the Drug Premises Act. The NSW Ombudsman has a review role in relation to these laws. 3.2.1. The Search Warrants Act 1985 In NSW, the principal legislation that regulates the application, issuing and execution of search warrants is the Search Warrants Act. As noted above, many of the procedures that apply to warrants issued under the Drug Premises Act are contained in the Search Warrants Act. Section 5(1) of the Search Warrants Act authorises police to apply for a search warrant if they have reasonable grounds for believing that any of the following things are, or will be, on the premises within 72 hours: (a) a thing connected with a particular indictable offence, (b) a thing connected with a particular firearms offence, (b1) a thing connected with a prohibited weapons offence, (c ) a thing connected with a particular narcotics offence, or (d) a thing stolen or otherwise unlawfully obtained. 113 105 Police Powers (Drug Premises) Act, s. 12. 106 Police Powers (Drug Premises) Act, s. 13. 107 Police Powers (Drug Premises) Act, s. 14. 108 Police Powers (Drug Premises) Act, s. 9 (1) (a). 109 Police Powers (Drug Premises) Act, s. 9 (1) (b). 110 Police Powers (Drug Premises) Act, s. 9 (1) (c). 111 Police Powers (Drug Premises) Act, s. 9 (2). 112 Police Powers (Drug Premises) Act, s. 9 (2). 113 Search Warrants Act, s. 5 (1). NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 31
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 and 26: Another data limitation is that COP
Page 27 and 28: Chapter 3. Legislative survey This
Page 29: Once police have entered the suspec
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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