Charged with a Drug Possession offence is daunting. It carries a maximum penalty of up to 2 years imprisonment and/or a penalty of up to $2,200 fine. It can also result in a criminal conviction, impacting on your future.
There are also certain things you can do, if going to court, for a drug possession charge, to maximise your chances at getting a s10 non conviction. See our recent blog on how to get a s10 for drug possession.
Over 170 people were charged with drug offences at the Field Day Music Festival at the Domain on 1 January 2018.
The below are 10 things you should be aware of, if ever faced with being approached by police at a music festival, in relation to drug possession.
1. Your Right to Silence & Right to Speak to a Lawyer
When arrested, you have no obligation to talk or answer police questions. By simply refusing to, you are simply exercising your right to silence. Generally, exercising this right cannot be used against you.
You may not want to answer any police questions because of embarrassment, protecting another person from incrimination, or concerns that police may not accurately record your answers.
Police, who have knowledge of the law, and specialised training, are in a distinctive advantage when interviewing an average person who has limited to no understanding of their legal rights.
An accused person is innocent until proven guilty. With the assumption of your innocence, it is up to the police to prove your guilt, beyond reasonable doubt.
Police must allow you to speak to a lawyer before investigations (including any questioning) takes place. It is always a good idea to get legal advice before making any decision to talk to police.
2. Can the Police Search You for Drugs?
Without a warrant, police are not allowed to search you unless, the officer has a ‘reasonable suspicion’ that you:
- Have anything stolen or unlawfully obtained in your possession or control; or
- Have anything used, or intended to be used in the commission of an offence; or
- Have a dangerous article in a public place, that’s being used, or was used in the commission of an offence; or
- Have a prohibited drug or plant, in your possession or control.
The above is a power given to police under s. 21 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW).
What is ‘reasonable suspicion’?
A ‘reasonable suspicion’, according to the case of R v Rondo  NSWCCA 540, is where there is less than a reasonable belief, but more than a possibility in the mind of the officer (i.e. that you have a prohibited drug in your possession).
For it to be reasonable, there needs to be something that would create an apprehension or fear in the mind of a reasonable person that, for example, you have a prohibited drug in your possession.
A reason to ‘suspect’ that you have a prohibited drug in your possession, needs to be based on a factual basis. If the factual basis the officer searched you on is weak or inadmissible (because it was illegally obtained), then the suspicion may not be ‘reasonable’. This would generally result in an illegal search.
A critical issue is whether the reason for the search was the reason the officer formed at the time of the search, as oppose to at the time of the hearing in court (in hindsight). The officer’s reason to search is not relevant if the reason was formed after the search.
What Happens if Police Search You Without a Reasonable Suspicion and No Warrant?
Essentially, if the police find prohibited drugs on you after illegally searching you (without a reasonable suspicion on any of the above grounds), your charge can ultimately be either dropped early, or dismissed in court- on a not guilty verdict.
This is because, the law generally prohibits evidence (under s. 138 evidence Act) being used against you, where that evidence was illegally obtained. This includes a situation where drugs were found on you after an illegal search, where the officer had no reasonable suspicion under s21 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW).
This protection reflects the importance the law gives to our right to be free from the deprivation of liberty.
Generally, the police won’t need to demonstrate a ‘reasonable suspicion’ to search you (without a warrant) if you consent to the police searching you.
3. Drug Detection Dogs
Drug detection dogs are often used by police for the purposes of providing a positive indication that someone has drugs on them, which then often allows police to form a reasonable suspicion to allow for a search (without a warrant).
- 148 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) gives police the power to use a drug detection dog, without a warrant, to carry out drug detection on people that are in a public place, or entering or leaving a public place. A public place includes a sporting event, concert or other artistic performance, dance party, parade or other entertainment.
The use of a drug detection dog is not considered a search.
Some general rules about using drug detection dogs by police, is included in s. 150, and include:
- The police must keep the dog under control
- The police must take all reasonable precautions to prevent the dog from touching the person.
4. Is walking Away From a Drug Detection Dog an Offence?
Firstly, the police are not allowed, generally, to stop or arrest you for the purposes of allowing the drug detection dog to sniff you.
Secondly, His Honour Justice Smart said in Streat v Bauer; Streat v Blanco (unreported, NSWSC, 16 March 1998) that “robust insistence on one’s rights does not constitute reasonable grounds for suspicion”. I believe that walking away from a drug detection dog does not necessarily give rise to the police forming a basis for a reasonable suspicion to search you.
5. What Kind of Personal Searches Can Police Do?
There are 3 main kinds of searches police can do on you:
- Frisk Search: Police running his/her hand over your outer clothing, or with an electronic metal detector, and an examination of your clothes where those clothes are conveniently and voluntarily removed by you.
- Ordinary Search: Police requiring you to remove your overcoat, coat, jacket or similar clothing, gloves, shoes or hat, and an examination of those items by police.
- Strip Search: Police requiring you to remove all your clothing, and an examination of your body. This does not include examination of your body cavities.
Police are only allowed to conduct a strip search on you if the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, and the seriousness and urgency of the circumstances make it necessary. (s 31 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW)).
6. What are the Rules Police Must Comply with During a Strip Search?
The following are limitations and rules that NSW police must comply with during a strip search, under s.32 and 33 of the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW):
- Police must inform you that you are required to remove clothing, with reason(s) why
- Police must ask for your co-operation
- Police must conduct the search in a way that gives you reasonable privacy and as quickly as is reasonably practicable
- Police must conduct the search in the most least invasive way as is reasonable practicable in the circumstances
- The police must not require you to remove more clothing than the officer believes, on reasonable grounds, to be reasonably necessary for the purposes of the search
- The police must not conduct more visual inspection than the officer believes, on reasonable grounds, to be reasonably necessary for the purposes of the search
- Police are not allowed to search your genital area, unless he/she suspects on reasonable grounds that it’s necessary for the purposes of the search
- Police must not touch you, or examine your body cavities, during the strip search
- The police officer searching you must be of the same sex as you
- The police officer is not allowed to ask you questions whilst the search is being conducted. This doesn’t prohibit questions being conducted concerning issues of your personal safety relating to the search.
- As soon as the search is finished, you must be allowed to dress.
- If police seize your clothing, the police officer must ensure you are left with, or provided reasonably appropriate clothing.
- The strip search must be conducted in a private area
- The strip search must not be done in the presence or view of anyone whose presence isn’t necessary for the search
- Your parent or guardian can be present during the search, if it’s reasonably practicable in the circumstances, if you have no objections.
- If you are over 10 but under 18 years of age, or if you are impaired intellectually, your parent or guardian must be present during the search, unless, the officer suspects on reasonable grounds that delaying the search is likely to result in evidence being concealed or destroyed, or an immediate search is necessary to protect the safety of a person.
- Under s. 34 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW), the police must not strip search a person under the age of 10 years
- Under s. 138 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW), the police officer (of the rank of sergeant or above), may request a doctor to examine you for the purposes of getting evidence in respect to the commission of an offence if:
- The police officer who made the request is of the rank of a sergeant or above; and
- You are in lawful custody, and charged with an offence; and
- There are reasonable grounds to believe that an examination may provide evidence in respect to the commission of an offence; and
- This applies even if you don’t give consent to police
7. What are the Rules Police Must Comply with Before a Search is Conducted?
Before the police attempt to exercise a power to search you, the police officer must comply with s. 202 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW):
- The police officer must provide you evidence he/she is a police officer, unless he/she is in police uniform
- The police officer must provide you with his/her name, and place of duty
- The police officer must provide you with reasons for conducting the search on you
The above requirements must be complied with by the police officer before the search, or as soon as it is reasonably practicable to do so.
8. What Happens if You Fail or Refuse to Comply with a Search?
Failure or refusal to comply with a request to cooperate with a police search can result in two things happening to you:
- Firstly: It will allow the police officer to use such force as is reasonably necessary to conduct the search on you (under s. 230 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW)).
- Secondly: It will result in an offence under s. 199 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW). This will result in a penalty notice issued against you, with a maximum fine of up to $220.
In respect to the second, this can only occur if after you first refuse or fail to comply with the search (by not cooperating), you, again, refuse or fail to cooperate after the police have given you a warning.
The warning is where the police advise you that you are required by law to comply with the search. This warning is required to be provided to you before you can then be given a penalty notice for failing to comply with the search under s. 203 Law Enforcement (Powers And Responsibilities) Act 2002 (NSW)).
9. When Can Police Arrest you?
Arrest is meant to be a measure of last resort. Police are recommended to use alternatives, such as issuing a court attendance notice in person or via mail. This is usually what occurs when charged for drug possession.
The police in NSW can only arrest you where:
- The police hold a reasonable suspicion you are, or have committed an offence, or breached your bail conditions; or
- Police believe you’re about to commit a breach of the peace; or
- With a warrant for your arrest.
NSW police are not allowed to arrest you unless, he/she holds a reasonable suspicion that arrest is necessary for any one of the following purposes:
- Prevent you from repeating or continuing an offence, or committing a further offence; or
- Ensure you appear in court; or
- Prevent the evidence from being concealed, lost or destroyed; or
- Prevent interference with, or harassment of potential witnesses; or
- Prevent any fabrication of evidence; or
- Maintain your safety or welfare; or
- Stop you from running away from police or location of the offence; or
- Where the police suspects on reasonable grounds that the identity you provided is false (or your identity cannot be readily available), you may be arrested so that enquiries can be made to establish your identity.
10. How Long Can Police Detain you For?
Police can detain you for up to 6 hours from the moment of your arrest. They can only do this for the purposes of investigating whether or not you committed the offence (that you were originally arrested for).
During those 6 hours, police must release you (with or without bail conditions), or bring you before the Court.