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

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Number of Charges Laid for Each Offence Figure 10: Number of charges laid for offences in the Drug Premises Act 1 July 2001 – 30 June 2003 250 200 150 100 50 0 Greater Metropolitan Inner Metropolitan Allowing premises to be used as drug premises Organising, conducting or assisting drug premises Being Found on, entering or leaving drug premises Southern Region Region Command Northern Region Source: NSW Police data extracted from the COPS database. Western Region Greater Metropolitan Region Inner Metropolitan Region Southern Region Northern Region Western Region Being Found on, entering or leaving drug premises Organising, conducting or assisting drug premises Allowing premises to be used as drug premises 146 34 67 40 14 13 17 4 11 12 12 8 5 2 9 6.3. The offences in the Drug Premises Act: discussion 6.3.1. Police views on the major offences created by the Drug Premises Act Police we spoke to from a range of LACs commented favourably that the introduction of the Drug Premises Act had enabled them to lay charges in circumstances in which police may not otherwise have been able to take action. Over the two-year review period, 166 people were charged with a drug premises offence, who were not charged with any other drug offence. 431 This lends support to the police assertion that the Drug Premises Act has allowed police to charge persons believed to be involved in drug related activity who could not otherwise be charged under existing legislation. One officer from a western Sydney LAC commented to us that a key strength of the legislation was that in instances in which police believed everyone on the premises was involved in drug activity, they were now able to charge them all. He said: The fact that it gives you the option of charging all the people on the premises, that’s the big thing. That’s where it’s most effective. 432 This LAC had used the legislation on premises at which a high volume of dealing had taken place. 433 Police ran an operation that lasted about six weeks in the lead up to the execution of the search warrant. They estimated that up to ten to fifteen deals an hour were conducted at the house. Police were of the view that everyone who lived there would know what’s going on. The officer we spoke to said: The whole family were involved and we were able to charge everyone… Under normal legislation, you don’t get to take out everybody, and then they can just put someone else in their place. 434 6.3.2. Reversal of the onus of proof Probably the most controversial aspect of the Drug Premises Act has been the creation of two new offences that reverse the onus of proof. These are: 431 COPS database. This includes supply, possession, manufacture and cultivation offences under the Drug Misuse and Trafficking Act 1985 and the Poisons and Therapeutic Goods Act 1966. 432 Personal communication, Crime Coordinator, a western Sydney LAC, August 2003. 433 Ibid. 434 Ibid. 82 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
• the offence of being found on, entering, or leaving drug premises 435 and • the offence of organising drug premises. 436 The onus of proof relates to who is required to prove an offence. In most instances in the criminal law, the onus of proof is on the prosecution, and guilt must be proven beyond reasonable doubt. That the defence is not required to prove innocence reflects what is usually regarded as a fundamental principle of the criminal law - that a person is innocent until proven guilty. If the onus of proof is reversed, the accused is required to prove their innocence. The standard to which this must be proved, however, is on the balance of probabilities, rather than the higher threshold of beyond reasonable doubt. Concerns were expressed about the reversal of the onus of proof in submissions to our discussion paper and in the course of parliamentary debate about the Drug Premises Act. In a submission to our discussion paper, the Legal Aid Commission of NSW expressed opposition to the reversal of the onus of proof in any legislative context, and had particular concerns about how it may impact upon vulnerable groups in the community charged under the Drug Premises Act: The reversal also means significant difficulties for those who are uneducated, inarticulate, have intellectual or physical disabilities, or indeed may have drug addiction problems. The Commission regularly experiences difficulties with those people where they may be charged with an offence such as goods in custody, which has similar provisions. In many cases, it is simply impossible for the clients to be able to give an adequate account of themselves due to their disabilities. 437 In the Commission’s view, the potential for injustice in this sort of situation is significant and “the social benefit is far outweighed by the potential detriment that may be suffered in such situations”. 438 One health education officer from Cabramatta observed that the people who had been charged under the Drug Premises Act, in the experience of the officer, were “often illiterate or not articulate”. 439 Another submission to our discussion paper, received from Family Drug Support, 440 expressed a general concern about reversing the onus of proof, stating that it is in “direct contradiction of the normal operation of justice in Australia and causes great concern for personal rights and civil liberties”. 441 The North and North West Legal Service also expressed a general concern that the reversal of the onus of proof may leave the community open to a “misuse of these powers”. 442 The Legal Service submission stated that the reversed burden of proof may “result in the accused being forced to give evidence that may be self incriminating”. 443 Particular concerns have also been expressed in submissions to our discussion paper and in other forums that the reversal of the onus of proof means that the credibility of the accused “is on trial”. 444 In a submission to Parliament prepared by the Law Society when the Act was being debated, concern was expressed that the court’s assessment of the accused knowledge or intent in regard to why they said they were on drug premises would be based solely on an assessment of the person’s credibility. The Law Society argued that: The ability of one person to assess another’s credibility is hardly a precise science. For example, nervous witnesses can easily create an impression that they have something to hide. 445 The North and North West Legal Service expressed a similar concern in their submission to our discussion paper, stating that where “knowledge of a crime is at issue the accused credibility will also be on trial”. 446 The Legal Service also believed that an alien and threatening court environment could impact on making a subjective determination about the credibility of defendants. 447 435 Police Powers (Drug Premises) Act, s. 12. 436 Police Powers (Drug Premises) Act, s. 14. 437 Submission, NSW Legal Aid Commission, 30 July 2003. 438 Ibid. 439 Submission, Health Education Officer, Cabramatta, July 30 2003. 440 Family Drug Support “assists families to deal with drug issues in a way that strengthens relationships and achieves positive outcomes”. Mission Statement, Insight Family Drug Support Information Booklet, p. 1. 441 Submission, Family Drug Support, 31 July 2003. 442 Submission, North and North West Community Legal Service, 1 August 2003. 443 Ibid. 444 Ibid. 445 Law Society Submission, quoted by the Hon. I. Cohen, NSWPD, 7 June 2001, p. 14636. 446 Submission, North and North West Community Legal Centre, 1 August 2003. 447 Ibid. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 83
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Review of the Police Powers (Drug P
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Contents Preface ..................
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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
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NSW Police advised us that calculat
Page 25 and 26:
Another data limitation is that COP
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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 and 74: The magistrate noted that there wer
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: Chapter 6. The Drug Premises Act -
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
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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
Page 147 and 148:
The prohibited drugs that were loca
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One factor that appears to have per
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