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

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