|
||
The dogs have been let loose recently. Numerous people have been charged generally involving small amounts of cannabis and MDMA (ecstasy) as a result of over active Labradors at pubs, parties and big days out. A client who recently contacted me was apprehended walking to a dance party in the Botanical Gardens. She had in her possession, 1 joint and 1 pill. The dogs detected her and she foolishly threw away a cigarette pack containing the joint in sight of the police. As the detective was taking her 1 pill and issuing her with a court attendance notice, he blithely noted that he hoped a friend could give her a pill inside the party. Such is the hypocritical operation of drug laws in New South Wales.
What are your rights when a member of the canine constabulary shows you particular attention? The police have no power at common law to search someone prior to arrest. If you are arrested, the police can and will search you and ask you to empty your pockets and go through your clothing. Most minor drug offences are not situations where arrest would normally be appropriate.
Legislation gives the police power to 'stop search and detain' if they form a reasonable suspicion that you have committed a drug possession offence. A 'reasonable suspicion' involves less than a belief but more than a possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary.
For minor drug offences the issue is what is a reasonable suspicion and how do the police get their hands lawfully into your pockets. Drug detector dogs are a relatively recent phenomenon on the streets of Sydney and for the police a very useful investigatory tool. A recent Supreme Court decision noted Rocky's (the drug detector dog) 'nostrils will flare and he will start to sniff rapidly and he will follow the source of the scent until he has found it.'
To what extent can the police rely on an agitated Labrador trained in drug detection to justify a search? The matter was considered by the supreme Court of NSW in 2004 in Darby's case. The Supreme Court cast doubt on the legitimacy of the use of police dogs to routinely justify searches. The court also pointed out that having an agitated Labrador jump all over you could constitute an assault and an illegal search. The court nevertheless did not state that drug dogs cannot assist a police officer in forming a reasonable belief that an offence has been committed.
On 22 February 2002, the NSW Parliament enacted the Police Power (Drug Detection Dogs) Act (The Drug Dog Act). The Drug Dog Act continues to allow police to use drug dogs to search an individual once they have formed a reasonable suspicion that an offence has been committed. The Act also gives police wide powers to enter venues and screen persons for drugs with the aid of drug dogs.
The Act provides the police with the power to enter premises and undertake 'general drug detection'. The police may enter without a warrant any licensed premises, a sporting event, concert or artistic performance, dance part, parade and public transport facilities with a drug detector dog. The definition includes persons seeking to enter or leave any of the above. Accordingly on the train, at the pub and at the footy, the police can put the dogs over you while you are entering and leaving. Any drug detection work conducted by the police outside of this very wide definition requires a warrant.
The issue of what will form a reasonable suspicion is still left to the courts and the Drug Dog Act does not empower the police to arbitrarily search persons. The Act gets the police into venues and gives them the opportunity to screen people. The reaction of a drug dog alone likely does not amount to a reasonable suspicion. The police are told not to rely solely on the reaction of the drug detection dog and observe very closely the reaction of the person subject to screening. If a person bolts, starts walking the other way or discards a cigarette package when detection dog's nostrils flare in their direction this can empower a police officer to search and detain the individual.
A word of warning! You have rights and the law does provide you with some protection but you should not argue with police. It is an offence to tell a police officer to get f...ked, hinder a police officer and assault a police officer. Police routinely arrest persons for these offences. Be cooperative, do not say anything other than your name and your address and get legal advice if you are charged. There is a time and a place to challenge the police and this is at court with your lawyer. The courts will exclude evidence illegally obtained and the prosecution will fail as a result.
Most importantly stay calm. What will give you away is your behaviour. It is likely that you are not the only person at the big day out who has the smell of cannabis on their clothing. The police will generally not search and detain someone unless they give them some real reason to do so. Do not make it hard on yourself, so stay calm if and when approached and ask are you being arrested; if yes call us!
Called; ecstasy, e, ecce, disco biscuits or 3, 4 methyledioxymethylamphetamine (MDMA), MDMA is an increasingly popular party drug. Putting aside any health issues with drug use, one frequently overlooked consideration is that it is illegal in New South Wales. The use sale and supply of MDMA are all criminal offences in New South Wales which could lead to imprisonment.
The use of MDMA is an offence. Thanks partly to the rigors of our legal system and difficulties with proving such an offence, people are not routinely hauled off the dance floor and charged. In some jurisdictions, notably some of our near Asian neighbours, the local constabulary are more robust and have been known to detain persons exhibiting the signs of drug use and forcibly drug test 'ecstatic' punters.
If a person is going to be charged with a use offence it is more likely that the person has denounced him or herself. A right to silence exists and no person is obliged to make a statement or talk to police if he or she does not want to. If a person is not charged, then that person can leave the police station and is not obliged to remain and assist the police in their investigations. Things said to hospital staff could theoretically be used against an individual although there would be a string argument that such material should not be used to ground prosecution as it is against public policy for doctor/patient confidentiality to be breached in such a manner. Accordingly, talk to your doctor about your drug use if you have to.
The offence of self administering a prohibited drug carries a maximum penalty of 2 years imprisonment.
Possession
Possessing a quantity of a prohibited drug is a criminal offence and the seriousness of the offence depends principally on the amount of the substance possessed. Possession is a legal concept and generally means exclusive possession. If it is in your pocket you possess it. If it is in the living room of a share house you probably do not. If your fingerprints are all over the container in which the drug is found, this is unhelpful.
Drug law in New South Wales places great emphasis on the amount of the drug possessed. Put simply, the more you have on you the more serious the offence. Buying in bulk is not such a great idea and even if you are just getting a few pills for a friend, in the eyes of the law you are a dealer and guilty of the offence of supply prohibited drug. Possession of 5 or so pills can result in a person being deemed a supplier and committing an offence that can result in a term of imprisonment. It is simply wrong to assume that the penalties for possession are slight and that it is only our neighbours to the north that have harsh drug laws.
Pills and Drug Weight
What the law calls admixtures count as the drug weight. for the purpose of State drug offences, the law looks at the total mass of the drug and not pure drug bulk. This means that even if the pill is very low in purity as long as it contains some MDMA, the total bulk of the pill is the amount that counts. From this author's experience in reviewing police pharmacology reports most pills contain some MDMA. a significant proportion of pills contain no MDMA but some other substance such as caffeine, methylamphetamine (ice) or ketamine (K).
To give you some idea of relative seriousness, what the law calls a 'small quantity' of MDMA is up to 0.25 grams, this would be about 1 pill. A person who is found to possess a small quantity commits a criminal offence that is punishable by up to 2 years imprisonment. The tariff for this type of offence is generally a fine. For some reason, the deemed quantities for MDMA are significantly less than some other popular drugs. For example, a 'small quantity' of amphetamine or cocaine is 1gram. There is no distinction in sentencing law between soft, medium and hard drugs. Especially in relation to larger amounts, MDMA is considered a serious prohibited drug and harsh penalties apply.
The full force of the law kicks in when a person possesses a trafficable quantity' of a prohibited drug. For MDMA a 'trafficable quantity' is 0.75 grams. This is not a great deal and 5 standard pills would constitute a 'trafficable quantity'. Once again there is an apparent disparity with other drugs. The trafficable quantity of the arguably more noxious drug, methylamphetamine (Ice) is 3 grams. The possession of a trafficable quantity of a prohibited drug places a person in the situation where he or she can be charged with deemed supply. This is a serious offence that carries a maximum of up to 10 years imprisonment. A person charged with deemed supply has a real risk of going to gaol. Persons found guilty of deemed supplier in possession of say 10 to 15 pills are routinely sentenced to terms of imprisonment. There is a defence of personal use but you still have to admit to possession and if you admit to giving a few pills to another person in the eyes of the law you are a supplier.
The purpose of this article is to alert people to the fact that there are real risks in popping the odd pill. An individual needs to conduct his or her own risk/benefit analysis when considering a certain type of behaviour. There are also ways to minimise risk if behaviour is considered inevitable. Being aware of risk is an important part of minimising risk. Further in the case of drugs if you are caught buying them you are in trouble and the greater the drug weight the more serious the offence and hence the greater the chance of imprisonment. The problem is always was it possession or was it possession and supply. Penalties in the Local Court are constrained but should the police decide to refer the matter to the District Court penalties can rapidly escalate. No one intends to be caught but every now and then they do. The courts are littered with minor and major drug offences. For most it is an unpleasant experience and some a disaster. Unfortunately a criminal conviction for even a minor drug offence is a serious matter and can limit an individual choices well into the future.