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

The second reading speech, which gives some assistance to the interpretation of matters of lawful excuse and lawful purpose,
suggests that it is a characteristic of drug premises that they are not used for lawful or domestic purposes, so it is reasonable
to expect persons to show why they are there once it is proven that the premises are used for the manufacture and supply of a
prohibited drug.
In relation to this matter, I disagree in the sense in which that is being put, but it seems to me that premises can have a duality
of function, and this was a unit which the police entered, which contained two bedrooms, which on the evidence before me,
appeared to be occupied, and the evidence suggests, not challenged, that the premises had been so occupied by the defendant
and her husband for a period of two years under a lease agreement with the owner. There were indicia of occupation on a
residential basis… 504
Most of the concern in relation to the reversal of the onus of proof has centred on the use of the legislation on premises with a dual
purpose, particularly domestic residences. A key question is whether people who are not involved in unlawful activity may have difficulty
proving their innocence. Some of the scenarios raised in parliamentary debate on the Act included households in which illicit drug
activity may be taking place without the knowledge and/or consent of all occupants. One member of parliament expressed the following
concerns:
What if a girlfriend or the child of a drug dealer is found on the premises but his or her name does not appear on the lease How will
such a person substantiate a lawful reason for being on the premises We have the quite likely scenario of an individual who has
never sold or used prohibited drugs and is only remotely connected to someone who has been arrested, charged and convicted
for being on the premises of a drug house. 505
There were instances in our review, as the case studies presented in this chapter show, of boyfriends, girlfriends and wives found on drug
premises being charged under the Act. The circumstances of each case were quite different, as were the outcomes for the defendants.
It appears that where premises do have a dual function, the task of establishing if the defendant had a lawful purpose or reasonable
excuse for being on the premises becomes more complex. The case studies below demonstrate this complexity.
Case study 12.
Dual purpose drug premises – wife of lessee found on drug premises, lawful excuse accepted
Police conducted a controlled operation 506 in the early hours of the morning on a flat in Cabramatta. During the operation, they
observed about 20 people approach the unit. They saw them knock on the rear brick wall or whistle and yell out. An empty
cigarette packet attached to a string was then lowered down from the rear balcony. The drug purchaser placed money in the
empty packet, and it was raised up to the balcony. The drug deal was then thrown down.
Police conducted several controlled drug buys from the unit and were then granted a drug premises search warrant. Police
executed the search warrant early that morning.
When police arrived, the defendant was in bed, with the door half open. Her husband and another couple were also in the flat
when police arrived. In an event narrative relating to this incident, police stated:
The defendants were allegedly sleeping in the two rear bedrooms where Police observed the dealers to exit a glass door leading
onto the balcony to supply the drugs. This glass door made a lot of noise when opened, which Police could hear from some
distance away. Further to this, all persons Police saw attending the unit either whistled, shouted out, or knocked on the wall with
a brick to get the attention of the occupants. 507
As police were entering the premises to execute the search warrant, they saw a canister being thrown over the balcony. The
canister contained thirty eight foils of what police suspected to be cocaine, weighing 6.66 grams. They also found $6,089 cash
under a chest of drawers in the bedroom. No drugs were found inside the premises. The front door had several dead locks on it.
In the event narrative, police noted that the woman and her husband were unemployed, yet the unit “contained a large amount of
current valuable furnishings and other items”. 508
504 Liverpool Local Court, Police v Huong Lan Nhan, 7 February 2002, pp.19- 20.
505 Ms L. Rhiannon, NSWPD, 7 June 2001, p. 14626.
506 “Controlled operations” are defined in s. 3 of the Law Enforcement (Controlled Operations) Act 1997, as an operation conducted for the purpose
of either obtaining evidence of “criminal activity or corruption conduct”, “frustrating criminal activity or corrupt conduct” or an arresting a person
involved in criminal activity or conduct. One type of controlled operation that may be conducted in drug investigations involves undercover police
officers conducting “controlled drug buys” from suspected drug dealers.
507 COPS event narrative 1, Cabramatta, Drug Premises Incident 11.
508 COPS event narrative 2, Cabramatta, Drug Premises Incident 11.
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 91