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

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All of the occupants were charged with being found on, entering or leaving drug premises. All were Asian: one aged 15, two aged 16, one 17, and the others were in their early to mid-20s. 478 Three of those charged failed to appear at court, and the offences were proved in their absence. 479 Of those who did appear at court, the young person found on the roof, a 16 year old male, said that he didn’t know who the premises belonged to, or who had the lease. He said that he knew that there were drugs on the premises, and in the words of his lawyer, he “happened to be there at the time the police raided”. 480 He pleaded guilty, was convicted and put on two years probation. The other 16 year old male received a $100 fine, a 20 year old male received a three months gaol term, and a 25 year old male received a nine month bond. 481 In sentencing the defendant who received the three month gaol term, the magistrate said that he did not accept that the defendant was not aware of the drug related activity taking place on the premises: What I see as relevant in this case is the fact of the police findings and the very clear evidence of significant drug dealing on these premises where Mr Lam was present. He says he was not aware of that. There does appear, on the police facts, to have been some clear and ostensible indications in those premises to anyone being there of the nature of the activity although Mr Lam said that he was not aware of that but a fact I must take into account, Mr Lam has a history, including some involvement in illegal drugs and that is a relevant matter which the Court has regard to as well as with his history of offending… 482 Case study 8. Young man found on drug premises in Cabramatta returning a key A 22 year old male arrived at a drug premises in Cabramatta five minutes after police had begun to execute a search warrant. The magistrate was satisfied that the premises were drug premises. 483 The man said that he had gone to the premises to return car keys that he had borrowed the night before. Although the defendant said that he had stayed at the house the night before, and admitted that he had smoked drugs while he was there, the magistrate concluded that: An interpretation in my view as to being there the night before does not ground sufficient reason to extend a definition pursuant to section 12, and therefore does provide him, in my view, with a defence in relation to a lawful purpose or excuse being to return the car keys that Mr Tran may well have given him. 484 In this case, the magistrate accepted the lawful excuse put forward by the defendant because, at the particular time when the man was found on the drug premises by police, he was returning car keys. Case study 9. Boyfriend goes to girlfriend’s house for dinner Police suspected that one of the male occupants (occupant A) of the house was involved in the commercial supply of heroin. One afternoon, his vehicle was stopped and searched by police after they received information that he was to take a delivery of drugs that day. No drugs were found in the car. An urgent application for a Part 2 search warrant was then made with the after hours magistrate “to prevent the loss of evidence”. 485 Police were concerned that occupant A was aware of their interest due to the vehicle stop that afternoon. 478 One was 20, one was 21, and the other 25 years old. 479 These were Asian males, aged 15, 17 and 21 years. 480 Campbelltown Children’s Court, Police v. [defendant’s name], 4 February 2002. 481 At the time of writing, this fine was unpaid, and had been referred to the State Debt Recovery Office Personal communication, Campbelltown Children’s Court, 11 December 2003. 482 Fairfield Local Court, Police v. Bao Lam, 26 November 2001, p. 3 483 Liverpool Local Court, Police v. Tula Ong, Nhep Siv and Simean Sun, 11 June 2003, p. 33 484 Ibid. 485 Part 2 Search Warrant Application, State Crime Command, Drug Premises Incident 3. 88 NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001
Officers from the State Crime Command executed a Part 2 search warrant that evening. When police arrived at the house, they heard the toilet flush and suspected that drugs had been destroyed before they were able to gain entry. They noted the existence of several security measures in an event narrative, including a heavy duty security screen on the front door, roller shutters on all the windows, and a closed circuit camera that was installed but not operating. 486 Inside the house, members of occupant As family were present, including his parents, sisters, brother and a young child. They arrested occupant A, his girlfriend, and another man, who was the boyfriend of one of occupant As sisters. All were charged with being found on drug premises. Police allowed the other members of occupant As family to go, and in the event narrative, stated: Due to investigations made into the three co-defendants they were arrested. The rest of the family were warned that ignorance of the defendant’s activities could have led to their arrests, but discretion was exercised and they were not arrested. 487 When they searched the house, police found a razor blade, digital scales “of a style that are known to be used in the preparation of drugs for supply”, 488 resealable plastic bags, aluminium foil cut into small squares, and a safe. Police did not find any drugs. The boyfriend found on the premises pled not guilty to the charge against him. He conceded that he was found on drug premises, but that he did not know they were drug premises at the time. 489 He said that he had a lawful excuse for being there, which was that he had been invited over to dinner by his girlfriend. He explained what had taken place that evening to the magistrate: Shortly after I arrived, I’d been there earlier in the day and I left to do some work and when I returned about ten, fifteen minutes I was sitting in the dining lounge area watching TV, just waiting for the meal to be finished being prepared and the police entered the premises… now that everything’s explained to me I realise that the premises were drug premises but at the time I had no knowledge of that. 490 The magistrate said that he was satisfied that the premises were drug premises, but found that the boyfriend had a lawful excuse for being on the premises. He stated: Mr Smith does not dispute that the premises were in fact drug premises but he relies on the statutory defence that he was present on those premises for a lawful purpose or with a lawful excuse. Although given the apparent level of drug activity in those premises, I have some difficulty understanding how a person would not be aware of what was going on, I find that on the balance of probability I am satisfied that Mr Smith was there for a lawful purpose and accordingly, the prosecution fails. 491 Case study 10. Woman stays for video and sleeps over There was another case, relating to a use of the Act in Cabramatta, in which the premises were also found to be drug premises. The lawful excuse put forward by the defendant was that she had been invited over for dinner. She and her husband had watched a video at the flat after dinner, and then stayed the night. It was established that drugs were supplied over a balcony, and the only access to it was off the room where the woman and her husband were sleeping. The magistrate noted in his judgement that the evidence that the woman was asleep when the drug dealing took place was not challenged. He accepted that the woman had a legal reason to be on the premises, and that she had therefore satisfied the onus of proof upon her, and the charge of being found on drug premises was dismissed. 492 486 COPS event narrative, State Crime Command, Drug Premises Incident 3. 487 Ibid. 488 Ibid. 489 Liverpool Local Court, Police v Matthew Valentine Smith, 23 May 2002, p.4 490 Ibid, pp 5-6. 491 Ibid, p. 11. 492 Liverpool Local Court, Police v Trang Thi Pham, 4 November 2002, p. 10. NSW Ombudsman Review of the Police Powers (Drug Premises) Act 2001 89
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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
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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 and 86: With reverse onus, we didn’t have
Page 87: In the following section, we will d
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
Page 141 and 142:
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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