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

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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. 74 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
In relation to the money located on one of the occupants, the magistrate accepted the explanation that was given by the defendant that it had been lawfully obtained. 386 Police had also alleged that the calculator that was found in the house was used to calculate drug sales, but the magistrate did not agree: I am not sure that I could find anything sinister about that and a calculator certainly might be used to add up or subtract various things, including drug sales, but the fact that there was no record of drug sales found in what was quite a lengthy search of the house and indeed a strip search of each of the people there, it would seem to me to indicate that one purpose of the myriad of purposes that calculators can be used should not be accepted. 387 The defence also alleged that the scales that were found on a table in the house were used to weigh darts, and while the magistrate found that this was a fairly incongruous explanation, it was accepted. 388 The drug premises charges were dismissed against all of the defendants, and costs were awarded against the police. 5.7. Types of drug premises In this section, we discuss the various types of drug premises against which police took action under the Act. These types of premises include fortified, non-domestic drug premises, clandestine laboratories, cars, and a motel room. We have discussed the use of the Act in relation to clandestine laboratories in the “Definition of drug premises” chapter. 5.7.1. Non-domestic drug premises While the indicia that may be used to define drug premises in the Act do not stipulate that drug premises need have any particular characteristic, the Attorney General’s second reading speech indicates that the legislation was intended to give police new powers to deal with a particular type of drug premises - namely the non-domestic drug premises of the type that had emerged in Cabramatta. Police reported that many of these premises were also fortified. The Attorney General commented in his second reading speech: It is a characteristic of drug premises that they are not used for lawful or domestic purposes, so it is reasonable to expect persons to show why they are there once it is proven that they are premises used for the manufacture and supply of prohibited drugs. 389 It was the emergence of this type of drug premises that had reportedly been associated with particular difficulties for police, like the destruction of evidence of prohibited drugs, before police were able to gain entry. The Drug Premises Act was most commonly used on domestic premises (such as premises used as a residence) that police believed were also being used for drug manufacture or supply. This is contrary to the understanding that it is characteristic of drug premises that they are not used for domestic purposes. Our research suggests that over the review period only a small percentage of the 141 drug premises, about 9%, were non-domestic. There were eight non-domestic drug premises in Cabramatta. The use of the Act on these premises is discussed in the chapter, “The Drug Premises Act in Cabramatta”. There were four non-domestic drug premises in other LACs. Each of these four uses of the Act are discussed below. The State Crime Command also used the legislation in respect of one non-domestic drug premises. 5.7.2. Non-domestic drug premises in LACs in NSW According to police documents, police took action in relation to one non-domestic drug premises in a LAC in the Greater Metropolitan Region, two in the Inner Metropolitan Region, and one in the Southern Region over the two year review period. Each of these nondomestic identified drug premises is described below. The State Crime Command also used the Act in respect to one premises that was described as “sparsely furnished”. 390 386 Ibid, p. 67. 387 Ibid, p. 67. 388 Ibid, p. 68. 389 The Hon. R. Debus, second reading speech, NSWPD, May 30 2001, p. 13997. 390 State Crime Command, Drug Premises Incident 17. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 75
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Review of the Police Powers (Drug P
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Contents Preface ..................
Page 5 and 6:
Chapter 11. Drug move-on powers in
Page 7 and 8:
Acknowledgements This report was re
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Part One. Background. Chapter 1. In
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Drug offences, unlike for example,
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elieve is in a public place with th
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Chapter 2. Methodology In this chap
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2.3.5. Health data NSP distribution
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As the table indicates, more than o
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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 and 72: 5.5.8. Section 11(2)(g): large amou
Page 73: The magistrate noted that there wer
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
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7.8. Conclusion: Impact of the Drug
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By way of comment, the continuing a
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Chapter 8. Targeting drug supply Pa
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Table 18. Drug Misuse and Trafficki
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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
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Table 23. Drugs located, Northern R
Page 143 and 144:
However, the submission concluded b
Page 145 and 146:
To begin with, telephone intercepts
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The prohibited drugs that were loca
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One factor that appears to have per
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