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

Case study 6.
Drugs, money, fortifications and calculators
In the event narrative in relation to this incident, police stated that the premises was well known for the distribution of prohibited
drugs in the area. 372 Surveillance had been conducted, in the course of which police stopped the vehicle of a person who had
just been at the premises who was found in possession of drugs. Police successfully applied for a search warrant. 373
When police searched the house, they found 201 grams of cannabis and 61 ecstasy tablets in a canister in a foundation pillar
under the house. Some amphetamine was also retrieved from the toilet. 374 Police also located a quantity of resealable plastic
bags, scales, a calculator and a measuring spoon. They noted that there was a camera outside the house, that the front
door was “heavily reinforced with metal plating”, 375 and that they had heard the toilet flush when they were attempting to gain
entry. Two wallets that did not belong to the occupants of the house were also located, and $1,885 was found on one of the
defendants. 376 Six people found on the premises were charged, five with allow premises to be used as drug premises, and one
with being found on drug premises. 377
During the court proceedings, the magistrate made a range of comments about the legislation, particularly in relation to the use
of specific indicia, such as firearms and syringes, and the use of any or all of the indicia, to define premises as drug premises.
Using the example of indicia of firearms, (hypothetical in this case), 378 the magistrate stated that:
In order to be satisfied that it is a drug premises I may have regard to any or all, any or all it seems to imply to me, one or more
and having it listed like that the legislature appears to me to be saying that evidence…[not transcribable]… firearm is evidence
of supply of a prohibited drug or manufacture of a prohibited drug. I cannot read the Act in any other way but I am finding it
very difficult to accept that this is the intention and certainly the ordinary usage of inference would not allow a Court to infer
the presence of illegal firearms indicated a drug premises. It might indicate something illegal, they certainly would indicate
something illegal. They might indicate all sorts of things, intention to rob a bank, intention to shoot rabbits. There certainly is no
compelling, in my view, conclusion that I would draw that was indicative of a drug house and yet it appears from the section that
the section allows me to rely on just one of those factors. 379
Similarly, the magistrate also commented about section 11(d) (also hypothetical in this case) that relates to evidence of a
syringe, or any other means or device used in the supply, manufacture or use of a prohibited drug on premises, stating that such
evidence:
… certainly points to some involvement with a drug but whether or not supply and manufacture of a drug, but simply use, and
how use can point to supply or manufacture beyond reasonable doubt is a, I find it a real difficulty … 380
Another issue that emerged in this case related to the fact that police had found some cannabis on the premises. The
prosecution argued that this also indicated that the premises were drug premises. Drug supply or cultivation in relation to
cannabis cannot be the basis of the use of the Drug Premises Act. 381 However, the prosecution in this case had submitted
that the finding of a bag of cannabis in the lounge room indicated that the premises was used for the supply of drugs, and had
argued that where there is cannabis, there are frequently other drugs. The magistrate disagreed, saying that it “seems to fly in
the face of the definition section which excludes cannabis from prohibited drugs”. 382
The magistrate also found that there was no evidence connecting the defendant (who had also been charged with possession)
with the amphetamines, and was not satisfied that the police had found the ecstasy in the place where they said that they had. 383
Allegations had also been made earlier in the proceedings by the defence that police had planted the 61 tablets of ecstasy that
were found. 384 The magistrate said this had not been proved, but that it “remains a possibility that the police brought the drugs
onto the premises themselves”. 385
372 COPS event narrative, Inner Metropolitan Region, Drug Premises Incident 14.
373 The type of search warrant is not noted.
374 COPS event narrative, Inner Metropolitan Region, Drug Premises Incident 14.
375 Ibid.
376 Ibid.
377 Ibid.
378 Firearms were not found on this premises.
379 Downing Centre Local Court, Police v Ian William Rodger, Michael Richard Thomas Anthony, Phillip Wilfred Francis, David John Connors, Michael
James Malone, and John James Dempster,10 February 2003, pp.62- 63.
380 Ibid, p. 63
381 Police Powers (Drug Premises) Act, s. 3. The definition of “prohibited drug” that applies to this Act excludes cannabis leaf, oil and resin.
382 Downing Centre Local Court, Police v Ian William Rodger, Michael Richard Thomas Anthony, Phillip Wilfred Francis, David John Connors, Michael
James Malone, and John James Dempster,10 February 2003, p. 66. One of the defendants was charged with possession in relation to quantity of
cannabis, and was found guilty and fined $100 for this offence.
383
Ibid, p. 71.
384 Ibid, p. 29. One of the defence lawyers asked a police witness if they had put the canister containing 61 ecstasy tablets under the house earlier
that day, and the officer said that they did not.
385 Ibid, p. 29.
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NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001