Drugs and the law - Hot Topics 59 - Find Legal Answers

It is an offence to obstruct or delay police entry, or givean alarm. A person should not resist a police officer whoappears at their door with a search warrant. To do so isan offence (Law Enforcement (Powers and Responsibilities)Act 2002, section 52).police powers with a warrantThe police can use as much force as is reasonablynecessary to conduct the search, which can mean pullingout drawers (and ceilings).Search warrants also give police the right to searcha person found in or on the premises if they have areasonable suspicion that the person has the thingmentioned in the warrant (Law Enforcement (Powers andResponsibilities) Act 2002, section 50).With a warrant, police can cross property owned byothers, break open doors and windows and do other‘necessary’ acts to a property reasonably suspected ofbeing drug premises (Law Enforcement (Powers andResponsibilities) Act 2002, section 141).evidence from illegal searchesEvidence obtained through illegal police searchesis admissible, if the magistrate or judge uses theirdiscretion to allow it. The prosecution must establishthe desirability of admitting the evidence (Evidence Act1995, (NSW), section 138).Detection by helicopterWhere a police helicopter detects cannabis plants fromthe air and police then enter the property without awarrant, the evidence obtained may not be admissible.In Nicholson and Curran 13 the discretion was exercisedto not admit evidence of cultivation obtained from sucha raid, resulting in the conviction being quashed. Insubsequent civil proceedings, the same appellants and22 of their fellow residents at the Wytaliba communitywere awarded a total of over $1 million in damages forthe police trespass (Curran v Walsh 14 ).Writs of assurance and customs warrantsWide powers are given to customs officers in possessionof a writ of assistance (issued by a Supreme Courtjudge), and customs and police officers in possession ofa customs warrant.These are general warrants; they last for periods of timeand are not confined to the investigation of a specificset of circumstances. Those in possession of thesewarrants can, at any time, enter and search any premises,including houses, in which drugs may be or are supposedto be. They do not have to show reasonable suspicion,and may use force.seeking the proceeds of crimeSearch warrants can also be issued under the legislationdealing with the confiscation of proceeds of crime. Theycan, for example, cover documents that can assist intracking down property that is drug-derived or whichbelongs to those who are reasonably suspected of drugrelatedactivities.geTTing legal adviceYou may be able to obtain free help (or help at a reduced cost) from:> LawAccess NSW> the Legal Aid Commission or Aboriginal Legal Service> a community legal centre.Lawaccess nsWLawAccess NSW is a free government telephoneservice offering legal information, referral toappropriate free legal services in your area or privatesolicitors, and in some cases, legal advice.Tel: 1300 888 529Legal aidThe Legal Aid Commission provides free legalrepresentation in drug cases if you qualify under themeans test. This means test is complicated. Whetheryou qualify depends on:> your income> how many dependants you have> other factors like how much rent you pay.If you receive a Centrelink pension or benefit, youwill usually qualify under the means test. If you don’treceive Centrelink payments but you are on a lowincome, you should apply for legal aid. It is worthtesting whether you are eligible. Often people qualifyfor some legal aid, but must also make a contributiontowards the cost.The Legal Aid Commission will also give you free advice, even if you don’t qualify for legal aid. aboriginal Legal servicesIf you are an Aboriginal person or a Torres StraitIslander, you can get free legal representation for drugcases and other criminal matters from the AboriginalLegal Service in your area.community Legal centresIf you don’t qualify for legal aid and you can’t affordto pay a lawyer, you can get free legal advice froma community legal centre. They will advise you butusually will not represent you in court.13. (unreported, District Court Inverell, 25 March 1999)14. unreported, District Court, 17 October 200020HOT TOPICS 59 > Drugs and the law