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

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4.3. Recommendation That Parliament consider replacing the requirement in the Drug Premises Act that sergeants apply for drug premises search warrants and instead require that a police officer in charge of an investigation into a suspected drug premises apply for a search warrant. We note that NSW Police advised us in its response to a draft version of this report that it supports this recommendation. NSW Police has also noted that, with the introduction of any legislative amendment giving effect to our recommendation, a new topic would be added to the second year of the Diploma of Policing Practice curriculum which would cover the relevant legislation and its impact on the responsibilities of constables of police. 52 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
Chapter 5. The definition of drug premises in the Act and types of drug premises According to the Drug Premises Act, drug premises are “any premises [that] are being used for the unlawful supply or manufacture of any prohibited drug”, other than cannabis resin, leaf or oil. 254 The definition of premises provided in the legislation includes any structure, building or aircraft, vessel or place, or any part of any such structure or place. 255 Therefore it is possible for a flat, a house, a car, or a parking lot to be considered drug premises. 256 Another important feature of the legislation is that premises may still be considered to be drug premises whether or not drugs are found on the premises. 257 This feature of the legislation was reportedly included to enable police to lay charges under the Act in situations such as those in which drugs had been destroyed prior to police entry, but other evidence indicated to police that the premises had been used for drug manufacture or supply. In this chapter, we will examine each of the eight indicia in the Act 258 that may be used to define drug premises, the characteristics of identified drug premises that were recorded by police, and several court cases in which the indicia used to define particular drug premises were at issue. We will also discuss the concerns raised about the use of particular indicia in the Act, such as fortifications, syringes and the presence of drug affected people, to define drug premises. It was evident from our review of the operation of the Act that various types of drug premises exist, including non-domestic drug premises, cars, clandestine laboratories, and a motel room. Each of these types of drug premises will be discussed in this chapter. 5.1. Indicia that define drug premises in the Act In order to find a person guilty of the drug premises offences of: being found on entering or leaving drug premises; organising, conducting or assisting drug premises, or allowing premises to be used as drug premises; the prosecution must satisfy the court that the premises were being used for the unlawful supply or manufacture of any prohibited drug, other than cannabis leaf, oil or resin, at the time when the offence was committed. 259 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 – that is, whether premises constitute drug premises. However, a court is not limited to these indicia alone in considering if premises were being used for drug manufacture or supply. 260 The Act does not provide guidance on the weight each criterion is to be accorded. The indicia are: (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, 254 Police Powers (Drug Premises) Act, s. 3(1). Cannabis resin, leaf and oil are excluded from the definition of “prohibited drug” in the Drug Premises Act, according to section 3 of the Act. 255 Police Powers (Drug Premises) Act, s. 3(1). 256 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. 257 Police Powers (Drug Premises) Act, s. 10. 258 Police Powers (Drug Premises) Act, s. 11. 259 Police Powers (Drug Premises) Act, s. 11(1). 260 Police Powers (Drug Premises) Act, s. 11(2). NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 53
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 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: applications. In this Act, an inves
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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