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

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(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. It is important to note that while certain features, such as fortifications, are commonly noted in police descriptions of drug premises, the Act does not stipulate that drug premises must show evidence of fortifications or of any other particular characteristic. Regard may also be had to other evidence in determining if premises are being used for drug manufacture or supply, such as a series of undercover drug buys conducted by police or evidence of people coming and going from the premises. NSW Police has advised us that the following indicia were most commonly used to define drug premises: • fortification of premises such as the presence of steel doors and barred windows • regular attendance at the premises by known drug users • the number of drug affected people in the vicinity • occupancy by a high risk offender • number of nearby arrests for possession of drugs • presence of syringes in the vicinity and • ability to use evidence provided by members of the public. 261 Some of the above characteristics are indicia in the Act, and others, such as regular attendance at the premises by known drug users, information from the public and occupancy of the premises by a “high risk offender”, are not. A submission to our discussion paper from a LAC in Northern Region listed the indicia most commonly used by police in that area to determine whether to apply for a search warrant under the Act. Evidence such as constant human traffic to and from premises, and the presence of fortifications also figured strongly for these police: The indicia used to determine whether or not a search warrant will be applied for under the conditions of the act are: community information about drug dealing from the location; Police observations of traffic to and from the location; Police observations of known drug dealers and users frequenting the location; blacked out windows, security devices and other indications that a premises is fortified to a degree beyond that typical of legitimate premises of this nature in that area; and drug paraphernalia (used syringes etc) left around and near the premises. 262 There is no compelling evidence emerging from this review that any of the indicia that may be used to define drug premises is inappropriate, or that any particular indicia should be removed from the Act. Specific concerns were raised in submissions to our discussion paper and elsewhere about indicia such as fortifications, syringes and the presence of drug affected people. However, we did not find evidence that the use of any of these indicia had operated unfairly. It is clear that user/dealers were charged and convicted under this Act, so items such as syringes that were found on drug premises may equally have been an indicator of their drug use, as of drug supply. However, we did not find any evidence that syringes alone, or in combination with another factor like the presence of drug affected people, had been successfully used to prove that premises were drug premises. It is unlikely that a prosecution that relied on these facts alone would be successful. Our research findings strongly suggest that evidence of people coming and going from premises, and staying for a short period of time, is a common characteristic of drug premises. In particular, it is a common indicator in applications for drug premises search warrants. Therefore, we recommend that Parliament consider the inclusion of this as indicia of drug premises in section 11 of the Act. It is noted that this indicia is included in legislation relating to drug premises in the Northern Territory. This Act stipulates that excessive, frequent or suspicious vehicular or pedestrian traffic to or from the premises may be an indicator of drug premises. 263 261 Submission, NSW Police, received 12 August 2003. 262 Submission, Northern Region LAC, received 30 July 2003. 263 Misuse of Drugs Act (NT) s.11C(1). 54 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
5.2. Recommendation That Parliament consider the inclusion of “evidence of people coming and going” as an indicator that may be used to define drug premises in the Act. NSW Police has advised that it supports this recommendation, saying that the inclusion of this indicator “could provide significant support during an investigation”. 5.3. Drug premises beyond reasonable doubt Regardless of which, or how many, indicia are used to define drug premises, it must be proved beyond reasonable doubt that the premises were being used for the supply or manufacture of prohibited drugs when an offence under the Act is committed. 264 In a focus group, one police officer explained the connection between the indicia of drug premises in the Act, and the requirement to prove that premises are drug premises: There’s indicators, but you still have to argue an opinion of what the premises is being used for, or those things being on the premises, you’ve got a nexus between what’s there, and what it’s being used for. 265 5.4. Audit of characteristics of drug premises We recorded the characteristics of drug premises that were noted by police in the documents that we examined for this review. Characteristics of identified drug premises, such as the presence of fortifications, syringes, items associated with drug manufacturing or firearms, were often noted in event narratives. Search warrant documents were also examined in relation to the ten commands we audited for this review. Any additional information about the nature of the premises, or items that were seized which was contained in documents such as property seizure exhibit forms, was also recorded to present as complete a picture as possible of the characteristics of each identified drug premises. It is important to note that the data presented in this chapter is derived from police descriptions of drug premises. In most cases, we do not know how the court dealt with the indicia that police noted. However, there were some court cases in which the indicia defining drug premises were discussed, and these cases are examined in this chapter. In some event narratives, police directly relate their description of identified drug premises to the indicia that define drug premises in the Act. For example, in October 2002, police executed a search warrant 266 on a premises in western Sydney. The event narrative described the basis upon which charges were laid, 267 including the charge of allow premises to be used: Offence 1: Allow premises to be used as a drug premises. (a) The criteria for the identification of unit [address] as a drug premises has clearly been established. [details of the tenancy agreement of the person charged are outlined]… (b) Police were authorised by a search warrant to entry the premises, and were wilfully delayed, prevented and obstructed from entering those premises, for a period, of one and a half minutes. (c) The front door consisted of a wooden door, the standard Department doors have two (2) locks. The offender admitted to Police to having a third double dead lock added to the door, he further installed a second peep hole. The door was reinforced with steel plating around the locking area, which prevented the door jamb from breaking away upon force. The front window of the premises was boarded up. The window in the kitchen was blackened with dark in colour sheeting. (d) During the search of the premises, Police located a used syringe in the bathroom garbage bin. Directly above, Police located a yellow in colour sharps container, which contained over 100 used syringes. The offender admitted on video, that friends injected themselves with drugs in that room, when [visiting] Police also located a full box of unused syringes, and medi-[swab] 264 Police Powers (Drug Premises) Act, s. 11(1). 265 Focus group, Cabramatta police, 2 July 2003. 266 The type of search warrant is not noted. 267 In addition to being charged with allowing his premises to be used as drug premises, the male lessee of the unit was also charged with possession of a prohibited drug, the possession of equipment for administering prohibited drugs, and with having goods suspected of being stolen. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 55
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 and 52: applications. In this Act, an inves
Page 53: Chapter 5. The definition of drug p
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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