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

6.3.3. Police views on the reversal of the onus of proof
The NSW Police submission to our discussion paper stated that the reverse onus occurs frequently in other Acts. Their submission
acknowledged that magistrates will be asked to perform a new and difficult task in relation to this Act, but that the courts, police and
defence lawyers should be accustomed to dealing with cases where a reverse onus applies. 448
NSW Police have expressed the view that the reverse onus is a vital part of the legislation assisting police to have a direct impact “on [the]
occupancy of drug premises”. 449 The submission notes:
LACs stated this provision directly addresses the evidentiary difficulties frequently encountered by police when using existing
legislation. Specifically, the legislation allows police to proceed to prosecute even if prohibited drugs are not located on the
premises. Marrickville LAC have reported that this part of the legislation has given police the “upper hand” by placing the onus on
the dealer to prove otherwise. 450
The evidentiary difficulties referred to above include the problem of proving offences such as possession or supply, when police find
prohibited drugs on premises that are occupied by more than one person.
In Filippetti 451 (1978) the NSW Court of Criminal Appeal considered an appeal against a supply conviction involving a large quantity of
buddha sticks 452 found in the lounge room of a shared house. In order to justify the factual basis upon which the supply offence could
proceed, it was necessary to establish that the drug was in the exclusive control of the accused. 453 In this case, it was not possible to do
so. In his deliberations, the Chief Justice stated:
The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house
and all using the lounge room where the buddha sticks were found…
The finding of the buddha sticks in the chair in this lounge room where all six occupants of the house apparently had equally free
access… would not readily establish that there was exclusive physical control of the buddha sticks in any one of the occupants
unless there were some other evidence to accompany the finding of the buddha sticks. 454
The court found that there was not enough evidence to rule out the possibility that the buddha sticks were in the possession of another
occupant, or for a jury to conclude, beyond reasonable doubt, that the buddha sticks were in the exclusive control of the appellant. 455
Police we spoke to in Cabramatta were of the view that if they charged someone with being found on, entering or leaving drug premises,
the case is “virtually unloseable”. 456 In the NSW Police submission to our discussion paper, it was reported that for those offences in the
Act for which the reverse onus applies “most of those charged, plead guilty and those attempting to defend the charge have failed”. 457
In a focus group held with Cabramatta Police, one officer told us how the Drug Premises Act had enabled police to overcome evidentiary
difficulties such as those considered in the Filippetti case:
Pre the drug house warrant, if you execute a warrant here now, and you’ve got an ounce of heroin sitting in the middle of the room,
and we would have had eight people here, but you wouldn’t have been able to prove possession for any of those eight people,
unless they made admissions. Whereas now, with the Drug House legislation, we can charge each eight people with being on a
drug premises. 458
Police have also said that the reverse onus was useful because they could also charge people on drug premises who were not directly
involved in drug supply. One senior officer said that they believed that the ability to charge a person with a drug premises offence may act
as a deterrent against that person becoming involved in drug supply in the future:
448 Submission, NSW Police, received 12 August 2003.
449 Ibid.
450 Ibid.
451 Filippetti (1978) 13 A Crim R 335.
452 A “buddha stick” is the colloquial term for a type of cannabis that is particularly potent, and is often claimed to have been grown in Thailand.
453 Peter Zahra, Robert Arden, Mark Ierace and Beverly Schurr, Drug Law in NSW, Second Edition, Federation Press, Sydney, 1998, p. 36.
454 Quoted in Zahra et al, Drug Law in NSW, p. 37.
455 Zahra et al, Drug Law in NSW, p. 37.
456 Focus group, Cabramatta police, 2 July 2003.
457 NSW Police, Submission, received 12 August 2003.
458 Focus Group, Cabramatta Detectives, 2 July 2003.
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NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001