Will drug detection dogs be present at any music festivals this year?
Yes. The NSW Police for the past couple of years have expressly stated they will have drug detection dogs present at music festivals such as Field Day, Big Day Out, Future Music, Fat as Butter and V Festival. They have also stated they will continue to have drug detection dogs present at gay dance parties such as the Mardi Gras Party.
In NSW Drug Detection Dogs are also allowed, without a warrant, to patrol areas where a person is entering, leaving or whilst in a premises that sells alcohol (but not restaurants) and any public place where a sporting event, concert, dance party, parade or other entertainment is being held. See LEPRA 148.
I was caught with drugs at a music festival – what are the penalties?
In New South Wales, the charge arises under s 10 (1) of the Drug Misuse and Trafficking Act 1985 – namely any person who has a prohibited drug in his or her possession is guilty of an offence.
The maximum penalty is a fine of 20 penalty units ($2200) and/or 2 years imprisonment.
The actual penalty you receive will depend on numerous factors including the circumstances surrounding the offence, your remorse, your criminal record, any drug history and numerous other factors that your lawyer can advise you on.
If I plead guilty will I get a criminal record?
The Courts consider all drug related offences as serious. Magistrates have the option of not recording a conviction against you even if you plead guilty to this offence. This is commonly referred to as a ‘Section 10’. However, there are several factors that the Court needs to take into consideration when considering making a Section 10. You are best to get legal advice to determine whether you might be considered under this section.
What do the Police have to prove to convict me of this offence?
Beyond a reasonable doubt the Police need to prove (1) your identity, and that you (2) had in your possession (3) a prohibited drug, and that you (4) knew of the drug.
What is a prohibited drug?
A prohibited drug is defined in the Drug Misuse and Trafficking Act’s schedule and includes, but is not limited, to marijuana, cocaine, heroin, ecstasy, speed, and ice.
How do they prove I had the drug in my possession?
1. They form a reasonable suspicion and you admit to possession
Most often, especially at music festivals, the Police will form a reasonable suspicion that you are carrying a prohibited drug if a drug detection dog stops next to you. Also, if an officer, who may be undercover, sees you stop or walk in the opposite direction of a drug detection dog –or if you make a comment to a friend warning them about the presence of dogs – then they may form the reasonable suspicion required to approach you and to search you.
Generally speaking, once the police have a reasonable suspicion they are legally allowed to search you. You will be asked if you have any prohibited substances in your possession. If you admit that you do they will ask you to produce it, identify what drug you think it is and they will confiscate it and issue you with a Court Attendance Notice. Some Police will let you still attend the music festival.
2. They form a reasonable suspicion, you deny possession and a Police search locates drugs on you.
If the Police have formed a reasonable suspicion to search you and you are asked if you have any prohibited drugs on you – if you deny that you do – they will then proceed to search you, your clothing and possessions. The Police power to search you arises from the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), s21(1)(d) & s36(1)(e).
If they locate any drugs they will ask you what you think the substance is.
What if I pretend I don’t know what the drug is or say that they are vitamin tablets/ washing powder?
If the Police find any substance on you that they think may be a prohibited substance it is likely you will be charged. The Police will send the drugs off to the Drug Analysts Laboratory to prove it is a prohibited substance. Your matter will proceed to a hearing before a Magistrate who will determine on all the evidence whether the charge can be proven. If you are convicted it is likely the Magistrate will hand down a harsher penalty than if you had simply co-operated with the Police in the first instance.
Obviously, if you honestly believed you were not carrying any drugs than you should seek advice about defending the matter.
How can the Police search me?
Police can perform either a frisk search or an ordinary search, and they can ask you to remove outer clothing including such items as hats, jackets, belts, shoes, see LEPRA s.30. They can ask you to open your mouth or shake out your hair if they think you have anything concealed in those places, see LEPRA s21A.
During a search, the police must ask for your co-operation, must search as quickly as possible in the least invasive way, and must ensure reasonable privacy. They must not search you and question you at the same time. They must not search your genital area or breasts unless they believe on reasonable grounds that it is necessary to do so. Where reasonably practicable in the circumstances, the search must be carried out by a person of the same sex , see LEPRA s32.
Can they strip search me?
A strip search must not be performed except when it is necessary and in serious and urgent circumstances. The police must not touch you during a strip search and must ensure your privacy is respected. See LEPRA s 31.
What should I say to the Police if they want to search me?
It is always in your interest to be polite to the Police. You are legally obliged to tell them your name and address – it is an offence not to, and an offence to give them a fake name/ address. You are not, however, legally obliged to tell them where you got the drugs from, how long you have been taking drugs or any other information. You are legally entitled to exercise your right to silence. Anything you say to them maybe recorded by them.
What is the difference between a charge of possession and a charge of supply?
A lot. Possession charges are dealt with in the Local Court and are considered less serious compared to supply charges. See above for the elements of a Possess Drug offence and penalties.
What’s the difference between ACTUAL SUPPLY and DEEMED SUPPLY?
ACTUAL SUPPLY occurs when you are witnessed supplying someone with a prohibited substance, or there is evidence that you were intending to supply someone with a prohibited substance.
If Police observe you handing over drugs to another person, or reasonably suspect you are handing drugs to another person and they search you or the other person and find a prohibited drug then you will be charged with a supply drug offence.
Evidence that you were intending to supply could arise if you inform the Police that of the ecstasy tablets found in your possession you were going to give one to your friend, or they find drugs or cash on you that will lead them to reasonably suspect you were intending to supply drugs.
What are the penalties for a supply charge?
Under Section 25 of the Drug Misuse and Trafficking Act 1985:
(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
The maximum penalty for supply depends whether the matter is dealt with as a:
Strictly Indictable: fine of $220,000 and / or 15 years imprisonment.
Table 1 matter: Fine of $1100 and/or 2 years imprisonment.
Table 2 matter: Fine of $550 penalty units and/or 2 years imprisonment.
Real life example: A defendant was stopped due to a drug detection dog after exiting a train station on his way to a music festival. After a search revealed two capsules the defendant admitted they contained MDMA and said he was holding them for his friend and intended to give them to his friend. He was charged and convicted of supply drug as he admitted to Police his intention to give the drugs to his friend.
What is Deemed Supply?
If you have in your possession more than a traffickable quantity of prohibited drug, you can be charged with a deemed supply offence. A traffickable quantity is defined in the Schedule of the Drug Misuse and Trafficking Act 1985. The law is basically saying that because of the weight of drugs found on you – even though there is no evidence you were actually going to supply or intend to supply someone – you will be charged with supply.
I’ve been charged with Deemed Supply but I wasn’t going to supply to anyone. The drugs were for me. What can I do?
It is a defence to the charge of Deemed Supply if you can prove on the balance of probabilities the drug was in your possession for personal use. If you satisfy the Court that the drugs were for your own use than it likely you will be only charged with a possess drug offence.
An example of deemed supply, is when a person is found to be in possession of more than 3gms of cocaine. They can be charged with Deemed Supply and it will be up to that person to prove that they had the drug for their personal use only and they had no intention of supplying it – or sharing it –with anyone else.
Under Section 29 of the Drug Misuse and Trafficking Act 1985:
A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply.
Real Life example:
A Defendant was about to attend an all night dance party and was found by the Police to have 16 ecstasy tablets, 1.3 grams of speed, and some marijuana on him. When weighed the ecstasy amounted to a traffickable quantity. Through his lawyers he was able to prove on the balance of probabilities that all the drugs were for his own personal use over the course of the weekend, with no intention to supply the drugs to a second person. He was ultimately convicted of possession charges instead. (Note: the number of ecstasy tablets that will equate to a traffickable amount depends on the specific weight of the tablet – it may be less than 16).
Burke Elphick & Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal law, traffic law, employment, wills and estates, compensation, motor vehicle and insurance law. Should you have any further queries, please do not hesitate to contact our office.
The above information is of a general nature only and cannot be relied on as constituting legal advice. In this respect, we rely upon our Disclaimer at www.bemlaw.com.au/privacy-disclaimer
