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

13. Allowing use of premises as drug premises
A person who is the owner or occupier of any premises must not knowingly allow the premises to be used as drug premises. 529
Over the two year review period, 108 charges were laid under this provision in the Act. Of these charges, four were for a second offence
under this provision.
Of those charged with a first offence of allow premises to be used, 83% (90 people) were occupiers, 12 % (13 people) were owners and
5% (5 people) were owner/occupiers. Of the four people charged with a second offence under this provision, two were occupiers, one
was an owner, and one was an owner/occupier.
This provision would appear to be aimed at those who are involved in organising, and profiting from, drug premises. Criminal asset
confiscation provisions also apply to those people convicted of a second or subsequent offence of allowing use of premises as drug
premises. 530 For an owner or occupier to be found guilty of allowing premises to be used as drug premises, the prosecution must prove
that the owner/occupier knowingly allowed their premises to be used for this purpose. Therefore, unlike the two offences discussed
above, the onus of proof is not reversed. In order to successfully prosecute a person for this offence, there must be some act or conduct
that proves that the defendant had this knowledge.
Police anticipated from the outset that there may be difficulties in proving this offence. This is evident in training material prepared on the
Act. 531 One officer from Cabramatta said that with this offence, “you’ve got to prove knowledge, we run into that problem a lot” and that
“the knowledge one is a lot more difficult”. 532
In relation to the requirement that the prosecution must prove knowledge, the NSW Legal Aid Commission stated in its submission to our
discussion paper that:
As a matter of principle, the Legal Aid Commission is of the view that all offences should require proof of mens rea 533 and that the
current barriers should remain untouched. 534
In our discussion paper, we asked respondents to indicate if there had been any unnecessary difficulties in proving this offence. NSW
Police reported that there had been difficulties in proving this offence, particularly in some LACs. 535
Case study 15.
Allowing premises to be used as drug premises in Cabramatta, non-continuous occupation of
the premises
In this incident, a drug premises search warrant was applied for and granted in relation to a house in Cabramatta. Over the
preceding couple of days, several successful controlled drug buys had been conducted through the bars of a bedroom window in
the house.
The search warrant was executed at 11.00 pm that night. Police rescue were in attendance, and cut through a security grill on
the front door after attempts to get the occupants to open the door were ignored. When they entered, police note in the event
narrative that they found a 28 year old Asian male in the main bedroom, who they subsequently charged with being found on drug
premises.
Half an hour after police arrived, a female resident returned home. When she was searched by police, $1,300 was found in her
back pocket. The woman was charged with goods in custody, and with allowing her premises to be used as drug premises. A 21
year old Asian woman who was also found on the premises was also charged with being found on drug premises.
At court, the magistrate considered that there was ample evidence that the premises were drug premises when the search warrant
was executed, and that it was evident that the woman was an occupier of the premises from time to time. The prosecution put the
following argument to the court that the woman had knowingly allowed her house to be used for drug supply:
529 Police Powers (Drug Premises) Act, s. 13.
530 Criminal Assets Recovery Act, s (2)(e1) and s 6(4). This provides for the initiation of civil proceedings that may result in the seizure of the assets or
“interests” of a person who has been convicted of this offence on more than one occasion.
531 NSW Police, Training Video, Police Powers (Drug Premises) Act, undated (circa, July 2001).
532 Focus group, Cabramatta Police, 2 July 2003.
533 “Mens rea” or “guilty mind”, refers to a test that applies to a number of criminal offences relating to the state of mind of the accused, in which the
prosecution is required to prove that the accused had a “guilty mind” when the offence was committed.
534 NSW Legal Aid Commission, Submission, 30 July 2003.
535 NSW Police, Submission, received, 12 August 2003, and Submission received from the NSW Police Drug Squad, 1 August 2003.
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 99