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

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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. 84 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
With reverse onus, we didn’t have to prove what they were there for, they had to prove that. And a lot of it was that deterrent factor, you’ve been here, you can’t just go around, although I didn’t supply that cap of heroin, I’m not guilty, the fact that you’re involved in it in some minor degree, might just stop them from getting involved in the future … with a full on supply. 459 Also in Cabramatta, while police stated that they did show discretion in relation to who they charged, there were instances in which they charged everyone on fortified drug premises, because they “had to know what was going on”. 460 We asked a senior officer in Cabramatta to explain why police tended to charge everyone found on drug premises. The reverse onus provided part of their explanation: Probably because of the nature of the place … probably because of reverse onus, I suppose it comes down to the discretion issue, and if it’s clear that someone really was just there, and it’s clear that they really were the orange in a bunch of apples, you’re not going to charge the orange … the observations were … they were sort of like “one in all [in]” and they were all lounging around, or the two would be there, by the mere nature of them being there they had to know what was going on because this premises was so fortified. There was so much activity leading up to the door. There was no one living there. They couldn’t be squatting there… 461 6.3.4. Police discretion: deciding whether to charge a person on drug premises Police initially determine whether a person has a lawful or reasonable excuse for being found on drug premises. When police execute a search warrant and find people on the premises, they then determine whether to charge the occupants with an offence under the Act, such as being found on, entering or leaving drug premises. Police need to establish in relation to this particular offence if the person has a lawful purpose or a lawful excuse for being found on the premises. 462 Police are advised in the training manual about the Drug Premises Act to consider charging a person with this particular offence in the following circumstances: There is no obvious lawful purpose and the person refuses to provide an explanation for their presence. When the person does not have an obvious lawful purpose for being present, in the absence of an explanation by the person, it is proper that police should proceed. The legislation is drafted in such a way as to require these persons to account for their presence in the drug premises. 463 Conversely, officers are advised not to proceed against a person for this offence in the following circumstances: The person clearly had a lawful purpose or a lawful excuse When a person has an obvious lawful purpose (they live there, work there or are attending an organised function), in the absence of additional material which points to the person being there for an unlawful purpose, it is unlikely that there will be sufficient evidence to warrant proceeding i.e. it can be said that there is no reasonable prospect of conviction. … The person provides a plausible explanation If the person provides a plausible explanation and there is no available evidence to negate it, it is likely that the circumstance is one where the evidence is insufficient to proceed on the basis that it can be said that there is no reasonable prospect of preventing the person from making out a statutory defence. 464 We do not know how often police exercised their discretion not to charge a person under the Drug Premises Act because police are not required to record the exercise of this type of discretion. Police have advised us that they may not make a record of a person having been at premises when they execute a search warrant if they do not charge them. 465 In our examination of event narratives, we found instances in which police noted that they did not charge a particular person/s on premises. Below are some examples of these police decisions. A fourteen year-old boy from a north coast town was found on drug premises in an inner-city LAC. He was staying with his grandmother, and the search warrant had been executed at her house while he was there. Police recorded their decision in relation to this young person in the event narrative: 459 Interview, former crime manager, Cabramatta Police, 21 August 2003. 460 Ibid. 461 Ibid. 462 Police Powers (Drug Premises) Act, s. 12. 463 NSW Police, Mandatory Continuing Police Education Scheme Package, Police Powers (Drug Premises) Act, 2001, November, 2001, p. 19. 464 Ibid. 465 Interview, former crime manager, Cabramatta, 28 July 2002. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 85
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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
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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
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Another data limitation is that COP
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Chapter 3. Legislative survey This
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Once police have entered the suspec
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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 and 82: Chapter 6. The Drug Premises Act -
Page 83: • the offence of being found on,
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
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Low level drug suppliers are more l
Page 137 and 138:
Other forms of organisation in evid
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Table 19. Drugs Located, State-wide
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Table 23. Drugs located, Northern R
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However, the submission concluded b
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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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