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

5.5.8. Section 11(2)(g): large amounts of money unaccounted for
The quantities of money that were found on identified drug premises are detailed in the chapter on targeting drug supply.
5.5.9. Section 11(2)(h): presence of drug affected people
Evidence that there were persons found on premises who appeared to be affected by prohibited drugs is the final indicia of drug premises
in the Act.
Concerns were expressed in submissions to our discussion paper, and in parliamentary debate about the Act, that the term drug affected
was too subjective. 350 We have considered some instances in which drug affected people were found on premises.
For example, in one event narrative that relates to the use of the legislation in the Northern Region, police noted that during the execution
of the search warrant, both defendants appeared to be at least mildly affected by a drug. However, it is difficult to determine what weight
police attached to this observation. 351 Police also note in the event narrative that when they searched the house, they found scales,
aluminium foil, a small cutting tool, cannabis and what they believed to be heroin. Police noted that they also had evidence of a number of
people coming and going from the premises. 352
There were also instances, which we discuss below, when police entered a house to execute the search warrant and found people in the
process of injecting drugs. In these instances, police note that illicit drug use had taken place on the premises and sometimes charges of
self administration were laid.
5.6. How many indicia were used to define identified drug premises
Concerns have been raised that charges under the Drug Premises Act were laid on the basis of only a few of the indicia set out in Section
11 of the Act. A submission we received from the NSW Legal Aid Commission included the following comments:
It is the concern of solicitors within the Legal Aid Commission that charges laid under the legislation are on the basis that only a few
of the indicia set out in Section 11 have been met and that the evidence does not support a conclusion that the premises are being
used for the supply or manufacture of prohibited drugs as required by Section 11(1). 353
There were some court cases in which the number of indicia that had been used to define particular drug premises was at issue, and
these cases are discussed below. In one court case, the definition of the drug premises became a crucial question of the case.
However, in most of the court cases that we examined, there was little discussion of the various indicia that police had used to define
particular drug premises. This was often because the person pleaded guilty to the charge, so the question of whether the premises were
drug premises was not in dispute. On other occasions, most of the argument in the court case centred on the relationship of the person to
the premises, rather than the nature of the premises itself.
5.6.1. Are drug premises defined by a range of indicia
Due to the relatively small number of court proceedings in which the definition of drug premises was discussed, it is difficult to determine
if, and to what extent, drug premises were defined by a small number of the indicia set out in the Act. In a focus group we conducted, one
police officer commented that:
Even though you’ve got those indicators, how many of those indicators are required is not clearly defined, in some circumstances,
you may only have two or three, whereas in other places you may the whole ambit of all the indicators. 354
Event narratives and other documents we examined for this review, such as briefs of evidence, suggest that police usually defined drug
premises using a range of indicia. For example, the following extract from an event narrative that relates to the use of the Act in the Greater
Metropolitan Region is fairly typical of the events we examined:
The nature of the items located at the premises being, drugs, camera surveillance, scanners on police frequencies, bongs, scales
and resealable plastic bags, the frequency of people attending the premises have lead police to believe the premises are being
used for the supply of prohibited drugs (Drug premises). The defendant was located on those drug premises. 355
350 Submission, NSW Users and Aids Association, and Submission, East Area Tenants Service. This concern was also raised in parliamentary debate
on the Act, by the Hon. R. Jones, NSWPD, 7 June 2001, p. 14631.
351 COPS event narrative, Northern Region, Drug Premises Incident 3.
352 Ibid.
353 Submission, Legal Aid Commission,
354 Focus group, Cabramatta police, 2 July 2003.
355 COPS event narrative, Greater Metropolitan Region, Drug Premises Incident 10.
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 71