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

More documents

Recommendations

Info

Another event narrative, also from the Greater Metropolitan Region, suggests that the particular premises was defined by a series of factors: OFFENCE 11: ALLOW PREMISES TO BE USED AS DRUG PREMISES- 1ST OFFENCE As stated earlier, two undercover operatives were taken to outside [address], premises by another target of Operation [name]. On both occasions quantities of amphetamines and ecstasy were supplied to the undercover operatives after the target had obtained drugs from the subject premises. The premises have fortified measures such as two American pit bull terriers on guard outside the house. Two radio scanners were located in the bedroom of the defendant, together with two .22 calibre firearms. A set of expensive electronic scales were located in the kitchen area. Numerous small resealable plastic bags were also located in the kitchen premises. This indicates drugs being supplied from the premises. 356 5.6.2. What weight should be accorded each criterion The legislation does not provide any guidance on the weight particular indicia in the Act should be accorded. Concerns were raised that section 11 of the Act setting out the eight indicia that can be used to define drug premises gives “equal weight to unequal factors”. 357 In addition, the NSW Users and Aids Association argued that: What constitutes a drug house according to the Act is vague and subjective. The wording enables a drug house to be defined on the basis of any one of a series of indicators and theoretically any one could be used. 358 Several court cases in which it was considered that there were insufficient indicia to consider the premises drug premises are discussed below. Case study 4. Syringers, money and drugs Police reported that they had received numerous complaints from the community about possible drug related activity at a unit. 359 They conducted surveillance on the premises, and applied for, and were granted, a drug premises search warrant. When police arrived, there were three men on the premises. 360 In the court case relating to one of the defendants who was charged with being found on drug premises, it was argued by the defence first that the premises was not a drug premises, and second, that if it was, the defendant had a reasonable excuse for being there. 361 Evidence found on the premises, and discussed at court, included a radio scanner, a book of Australian East Coast Register of Government Radio Frequencies, several types of drugs, including some cannabis and foils of heroin, money, a syringe and a document that police claimed was a ledger of drug transactions were discussed at court. The security on the premises, lack of furniture, and lack of food in the kitchen, were also discussed. 362 During the cross examination of a police witness, it was established that amounts of $5 and $10 appeared on the ledger, and the police officer conceded that it was therefore unlikely to be record of drug transactions. 363 In relation to the security at the premises, the following exchange took place between the defendant’s lawyer and a police witness: [Defence Lawyer]: Can I just deal with this screen door The screen door that was attached to these premises was a standard flyscreen, is that correct [Police witness]: I wouldn’t call it a standard flyscreen, we just refer to them as a security door. [Defence Lawyer]: I know what you call them but it’s an aluminium door, is that correct Police witness: Yeah I believe the metal was aluminium, yes. [Defence Lawyer]: Which was not fixed with any special locks Police witness: No, no it didn’t appear to, no. [Defence Lawyer]: There were no bolts for example, bolts with padlocks on it Police witness: No, none of those. [Defence Lawyer]: It was a door that was not locked when you attended Police witness: No, no it wasn’t. 364 356 COPS event narrative, Greater Metropolitan Region, Drug Premises Incident 18. 357 Submission, North and North West Community Legal Service, 1 August 2003. 358 Submission, NSW Users and Aids Association, received 5 August 2003. 359 The unit was one of the two non-domestic drug premises that we describe later in this chapter. 360 COPS event narratives, Inner Metropolitan Region Incident 6. 361 Local Court, Downing Centre, Police v. Woody Quilla, 5 June 2002, p. 2. 362 Ibid 363 Ibid, p. 16. A police witness told the court that a “unit of drugs” usually cost $50 in that area. 364 Ibid, p. 18. 72 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
The magistrate noted that there were only a few of the eight indicia of drug premises set out in the Act present on this particular drug premises, and that the door was a normal screen door, and that no additional bolts had been attached. In the judgement, the magistrate said: In relation to the charge of being on drug premises attention has been drawn to the second reading speech of the Attorney General when the bill was introduced and that speech indicates the clear legislative intent of the provisions of this Act and it is with an eye to the circumstances that led to the Act that s 11(2) indicates eight factors which are to be taken into account in determining whether premises are drug premises of the purposes of that Act and, of course, I note that they are not exclusively the factors to be taken into account. As I look at the eight factors it is not disputed that some money was found on the premises, a syringe has been found on the premises with some drugs but there are no other of the factors indicated in s 11(2) which are present in this particular matter. In those circumstances and taking the prosecution case at its highest and having regard to the clear legislative intention I am of the view that there is no prima facie case been established [sic] in relation to the charge of being found on drug premises. 365 Case study 5. Money and items associated with drug supply In another incident, in the Inner Metropolitan Region, police conducted surveillance on premises and, according to the event narrative, “observed a number of unknown persons attend the premises and stay only for a short period of time before leaving”. 366 Police applied for a drug premises search warrant as a result of police intelligence and the surveillance that had been conducted over the previous week. When they executed the search warrant, police found plastic resealable bags, foil, scales, bags containing white powder, some cocaine, 367 a small bag of cannabis leaf, syringes, swabs and $1065. Two people were charged with allowing the premises to be used as drug premises, and one with being found on drug premises. 368 In the court proceeding relating to the two people charged with allowing their premises to be used as drug premises it was held that the indicia of drug premises were insufficient to establish that the house was drug premises. The magistrate noted that the scales were not working. In relation to the other indicia of drug premises that were located at the premises, he said: In relation to the evidence before the Court it would seem to me that it’s only in relation to D and G of those indicators and whilst I note that the section 11 subsection 2 refers to regard may be had to any or all of the following, in my view this is a significant matter to take into account in relation to the issue of prima facie case. 369 The indicia of D and G referred to above are evidence of any means or device used in the supply, manufacture or use of a prohibited drug and evidence of a large amount of money that is not accounted for by the occupier of the premises. 370 The prosecution relied upon the finding of 0.46 grams of cocaine, plastic resealable bags, and the money to argue that the premises were used for supply. In considering the argument put by the prosecution, the magistrate stated: There is certainly no evidence or any indication of how the premises were entered or any indication at all that there were people frequenting the premises. What I’m asked to infer from the evidence before me is that on the definition of supply as set out in the Drug Misuse and Trafficking Act, that is section 3 of that Act, that I should have regard to that particular part of the definition of supply, namely of keeping or having in possession for supply, the finding of bags which are said on the prosecution case disclosing the presence of .46 gram of cocaine and also what has been described as white powder, plastic resealable bags and the finding of two amounts of money. In my view the offence of knowingly allow premises to be used as drug premises is one that for the prosecution to establish that the premises were in fact used and even in the limited sense that I’ve been asked to apply the definition of supply from the Drug Misuse and Trafficking Act, I am of the view that the evidence does not disclose that. The evidence in my view is equally consistent with various matters namely bags and what could be regarded as a small amount of cocaine being on the premises. In my view there is no evidence to indicate that the premises within section 13 of Police Powers Drug Premises Act 2001, were knowingly being allowed to be used as drug premises. 371 The charges of allow premises to be used as drug premises were dismissed against the two defendants. 365 Ibid, p. 46 366 COPS event narrative 2, Inner Metropolitan Region, Drug Premises Incident 4. 367 In the court proceedings, one of the defendants had been charged in relation to 0.46 grams of cocaine. 368 COPS event narrative, Inner Metropolitan Region, Drug Premises Incident 4. 369 Downing Centre Local Court, Police v Valerie June Murphy and Michael Andrew Murphy, 21 May 2003, p. 13. 370 Police Powers (Drug Premises) Act, s 11(2)(d) and (g). 371 Downing Centre Local Court, Police v Valerie June Murphy and Michael Andrew Murphy, 21 May 2003. p. 14. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 73
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 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: 5.5.8. Section 11(2)(g): large amou
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
show all

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

Create successful ePaper yourself

Delete template?

Save as template?