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

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After consultation with [the LAC] Prosecutor, Brief Handling Manager and [the LAC] Detectives, it was found that the POI had a lawful excuse for being on the premises, and no formal action should be taken. 466 In another case, in a LAC in western Sydney, police noted in the event narrative that the unit had been “identified as a base for the distribution of illegal drugs within the [suburb] area” 467 and that the defendant was the sole occupant. When police arrived at the premises to execute the search warrant, they approached the defendant as he was arriving back at the unit, in company with several other people. In the event narrative, police record that: The defendant unlocked the door to the unit and all persons entered the lounge room area. The two males and females were searched and allowed to leave the premises. 468 On another occasion, in a LAC in the Northern Region, police had been investigating the activities of two people who they believed were involved in heroin supply in the area. When they executed the search warrant, police found the two suspects, and two other people inside the house. Police noted in the event narrative that they searched all four occupants, and the “other two persons were established as visitors, and after a search of their vehicle they were permitted to leave”. 469 There were also some instances in which police recorded why they believed a person did not have a lawful excuse for being on the premises. The extract below from a COPS event narrative illustrates this. When police were simultaneously executing several drug premises search warrants in an inner-city LAC, one man ran out to the rear yard of one of the houses: The defendant stated he was at the premises to pick up thirty cents to make a phone call. He could not offer an appropriate explanation for being on the premises at the time of the execution of the search warrant. Other persons found on the premises at the time of the execution of the warrant, admitted to police that the premises was [known] for the [self administration] of … prohibited drugs. 470 On another occasion, one man found on drug premises freely admitted to police that he was not there for a lawful purpose. When police entered the house, the occupier and three other people were present. Police found four small bags of heroin on the occupier following a search. When police entered one particular room, they found used and unused syringes, alcohol swabs and cannabis. Police noted in the event narrative that the occupier made admissions to police in relation to the room being used by persons for the administering of prohibited drugs. When they cautioned and searched one of the defendants, police noted that: He refused to state why he was at the premises except to say “that they wouldn’t let me in the front door if I wasn’t here to get on. You work it out for yourself.” 471 The man was charged with being found on drug premises. 6.4. Being found on, entering or leaving drug premises Section 12 of the Drug Premises Act makes it an offence to be found on, entering or leaving drug premises: 12. Offence of entering, or being on, drug premises (1) A person who is found on, or who is found entering or leaving, drug premises is guilty of an offence. 472 If a person is found on, entering or leaving drug premises, they have the following statutory defence available to them under section 12(2) of the Act: A person is not guilty of an offence under this section if the person satisfies the court that he or she was on, or was entering or leaving, the drug premises for a lawful purpose, or with a lawful excuse. 473 Over the two-year review period, 220 charges were laid for the offence of being found on, entering or leaving drug premises across the state. Nine of these charges were for a second offence under this provision. 466 COPS event narrative 3, Inner Metropolitan Region, Incident 9. 467 COPS event narrative, Greater Metropolitan Region, Drug Premises Incident 28. 468 Ibid. 469 COPS event narrative, Northern Region, Drug Premises Incident 3. 470 COPS event narrative, Inner Metropolitan Region, Drug Premises Incident 3. 471 COPS event narrative, Northern Region, Drug Premises Incident 7. 472 Police Powers (Drug Premises) Act, s. 12(1). 473 Police Powers (Drug Premises) Act, s. 12(2). 86 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
In the following section, we will discuss how lawful excuses for being found on, entering or leaving drug premises were considered at court. Cases in which people who were charged with this offence were visiting drug premises are discussed, as are cases in which the person/s charged with this offence lived at the premises. We also set out available demographic information about people who were charged with this offence. Data was also available from the BOCSAR in relation to some of those charged. This data shows whether they pleaded guilty or not guilty to the charge, and the court outcomes. 6.4.1. A lawful excuse for being found on drug premises No clear patterns emerged in relation to the circumstances in which a lawful excuse was accepted, or not accepted, by the courts. We have set out below a series of case studies to demonstrate the range of circumstances in which people were found on drug premises, and the varying outcomes of these cases at court. Case study 7. Being found on non-domestic drug premises in Cabramatta Police were granted a Part 2 search warrant to search a house in Cabramatta, 474 and began conducting surveillance that afternoon. During their surveillance, police saw a number of people coming and going, and several vehicles pull up and drive off again. Police executed the search warrant at about 7.30 that night, proceeding to the rear door of the house. It was opened by one of the occupants, and shut again. Police forced entry, ramming the front and rear doors. As they did so, the rear bedroom window was smashed and four men jumped out, fleeing over the neighbour’s fence. The men sustained injuries from the shattered glass. Police arrested one man as he attempted to jump the fence, and another was chased and arrested on a nearby street corner. Officers gained entry to the house after about 20 seconds, and two men were immediately arrested. A third 25 year old man, found hiding in a cupboard in one of the bedrooms, was arrested soon after. In the event narrative, police described the premises in the following way: The premises was barely furnished with only the bare essentials. Only one room within the premises contained a bed. None of the wardrobes within the premises contained clothing. The remainder of the premises were littered with rubbish. 475 Ten minutes later, police saw a young man who had fled standing on a garage roof next door, bleeding from a deep laceration to his hand. They enticed him down and he was then arrested. All of the seven were treated by an ambulance. Two stayed behind while police executed the search warrant, and the others were taken to Cabramatta Police Station and charged. When they searched the house, police found 73.1 grams of heroin packaged in 115 balloons and 52 silver foils in the kitchen and dining room. They also found a number of square pieces of silver foil, tiny water balloons and syringes. In the bedroom and lounge room, police found other property, including televisions, stereos and mobile phones that they believed had been unlawfully obtained. When interviewed, one of the occupants, a 16 year old male, claimed that he had only been on the premises for several hours before police arrived and had not noticed any suspicious activity. Nor had he noticed the balloons and foil on the lounge room floor. Another defendant, a 17 year old male, denied any knowledge of the drugs and said he had arrived 10 minutes before police executed the search warrant. Police note that this was “contradicted by police surveillance”. 476 The police event narrative stated: At the time of the warrant there appeared to be no responsible adult within the premises. When asked who owned the premises all of the persons claimed not to know and were only there for the purpose of visiting a friend. 477 No charges were laid in relation to the drugs found on the premises. Police have advised us that this was because the occupants had fled, and this presumably created difficulties in proving that particular people had control or possession of the prohibited drugs that were found on the premises. 474 Search warrant documents were not provided, so the circumstances surrounding the decision to apply for the search warrant are not known. 475 COPS event narrative, Drug Premises Incident 10, Cabramatta LAC. 476 Ibid. 477 Ibid. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 87
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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
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(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 and 84: • the offence of being found on,
Page 85: With reverse onus, we didn’t have
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
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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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