Music festival season is upon us, and with it, you can rest assured there'll be plenty of police officers and sniffer dogs targeting patrons who are in possession of prohibited drugs.
So it's perhaps timely to know about your legal rights when attending music festivals, to ensure you are aware when police are abusing their powers and not allow them to take advantage of you through unlawful conduct such as personal searches without justification, or even unwarranted strip searches.
Acting responsibly and knowing the rules can ensure your day doesn't end up with being issued an on-the-spot fine for drug possession, or worse, having to attend court for drug possession or a more serious offence such as drug supply or even resisting arrest and risking a criminal conviction being recorded against your name, or an even harsher penalty for a drug offence or another type of offence.
Drug offences in New South Wales
Drug offences are treated seriously by the courts, and you should seek legal advice immediately if you are arrested and charged with a drug-related offence.
Whilst drug possession is generally considered to be a relatively minor criminal offence, it still carries the risk of having a criminal conviction recorded against your name and a maximum penalty of a prison sentence.
In many cases, what seems like a minor possession offence can turn into a more much serious supply charge, even if there is no evidence you actually supplied or planned to supply the substance to anyone. This is called 'deemed supply'.
It's also important to know that even giving drugs to friends free of charge can amount to supply.
So as you can see, what can seem like something relatively trivial can escalate.
In any event, here's a rundown of the law.
The offence of drug possession in NSW
Possessing a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985(NSW).
This offence will apply if a person is found in possession of any quantity of a prohibited drug. The maximum penalty for drug possession is 2 years imprisonment and/or a fine of $2,200.
Police may choose to issue an on-the-spot fine rather than prosecute the matter in court. If this is the case, the may issue a $400 fine.
A person will be in 'possession' of an prohibited drug if:
- An illegal drug was in their 'custody' or 'control', and
- The person knew that they had custody or control of a prohibited drug.
To establish "possession", the prosecution does not need to prove you knew the exact quantity or type of illicit drugs in your possession, but does need to prove beyond a reasonable doubt you had knowledge that a prohibited drug was in your possession, custody or control.
Defending against a drug possession offence would require establishing that either you:
- Did not have prohibited drug under your exclusive possession, custody or control; or
- Did not know that you had custody or control of a prohibited drug at the times of the offence.
In addition a number of general legal defences may also apply, depending on the circumstances of the case. These defences include duress, necessity and self-defence.
There may also be an option to defend against charges if the evidence sought to be used by the prosecution was obtained illegally or improperly, or is not admissible due to the laws of evidence.
The offence of drug supply in NSW
Section 25(1) of the Drug Misuse and Trafficking Act 1985 outlines the offence of supply of a prohibited drug.
Being charged with an offence related to drug supply could potentially result in serious criminal penalties including imprisonment.
Drug supply can include supplying drugs to friends without payment, sending drugs in the post, and being part of a group of people buying drugs with combined funds, selling them and splitting the proceeds. Even if a drug that you supply doesn't contain an illicit substance, if you have represented it as an illegal drug you can still be charged and convicted of drug supply.
To prove the offence of supply , the prosecution must prove beyond reasonable doubt that a person supplied drugs to another and knew, or believed at the time, the substance supplied was prohibited drug.
The maximum penalties which apply to supply offences depend on the quantity of the prohibited drug supplied:
- For less than a small quantity, a $5,500 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
- For more than a small quantity, but less than an indictable quantity, a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
- For more than an indictable quantity, but less than a commercial quantity, a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
- For more than a commercial quantity, but less than a large commercial quantity, a $385,000 fine and/or 20 years imprisonment.
- For more than a large commercial quantity a $550,000 fine and/or life imprisonment.
It should be noted that under section 29 of the Act, a charge of drug supply can be bought even if there is no evidence of a person actually supplying the drug.
This is known as 'deemed supply' and applies if a person is in possession of at least a 'traffickable' quantity of a drug.
A "traffickable quantity" is:
- 300 grams or 5 plants for cannabis.
- 3 grams for cocaine.
- 3 grams for heroin.
- 3 grams for methamphetamine ("ice").
- 3 grams for ecstasy.
To rebut a charge of deemed supply, the accused must establish (on the balance of probabilities) that the drugs were possessed for reasons other than supply.
Defending against a drug supply offence would require establishing that either you:
- Did not supply a prohibited drug to another; or
- Did not know the what was being supplied was a prohibited drug; or
- In cases of deemed supply, either that a you did not possess a traffickable quantity or that the drugs were possessed for reasons other than supply.
In addition a number of general legal defences may also apply, depending on the circumstances of the case. These defences include duress, necessity and self-defence.
There may also be an option to defend against charges if the evidence sought to be used by the prosecution was obtained illegally or improperly, or is not admissible due to the laws of evidence.
Interacting with police at music festivals
It's important to note that you are not obligated to interact extensively with police at a music festival or any other environment.
Generally, you're only required to provide your name and address to police, and even then, only under certain circumstances.
You must supply your name and address to police if:
- you're under arrest;
- where police believe you were near a serious crime that has taken place;
- where you're under 18 years of age and suspected of drinking in a public place, or
- where you're driving a motor vehicle.
If you fail to provide your details under these circumstances, or you give a false name or address, you can be fined.
Either way, it's usually best to provide your details in order to ensure things go smoothly.
However, it's important to be aware that you're not obliged to answer any other questions when approached by police, and it's usually best not to, so you don't inadvertently incriminate yourself or your friends.
The rules for vehicle searches in NSW
It is not uncommon for police to set up traffic stops at the entry to a festival, usually under as a pretext for searching vehicles for illicit drugs.
Section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA') allows an officer to stop and search a vehicle without a warrant if they have a reasonable suspicion that it might contain stolen items, or it has been used in an offence, as well as if it's carrying anything used or to be used in a crime or any illegal drugs.
In the case of R v Rondo [2001] NSWCCA 540, it was established that a 'reasonable suspicion' should involve less than a reasonable belief, but more than a possibility. And there should be some factual basis to the suspicion.
This case involved John Rondo being pulled over in his mother's sports car in 1999, after officers ascertained it wasn't his vehicle. The police then searched the car and found cannabis in the glovebox. And a subsequent search of his home resulted in the seizure of 59 plants. The NSW District Court found Rondo guilty of drug supply and cultivation of a prohibited plant. However, on appeal, it was found that a young man driving someone else's sports car was not sufficient to give rise to a reasonable suspicion and warrant the stopping of the vehicle.
The rules for personal searches in NSW
Police may also be present at the entrance to music festivals, conducting personal searches on people they suspect have drugs on them.
There are three main types of personal searches:
- a pat-down search: where the police officer runs their hands or 'pats' over the outside of the person's clothes.
- a strip search: where the police officer removes and searches all of a person's clothing.
- an internal search: where a person's internal body cavities are searched.
There have been well documented cases of pat-down and strip searches being utilised by NSW Police at festivals.
An internal search is a forensic procedure and should be conducted by a medical practitioner. If you have been internally searched by a police officer you should seek legal advice immediately.
Rules for pat-down searches in NSW
Section 21 of the LEPRA provides that a person can be stopped, searched and detained if an officer "suspects on reasonable grounds" that one of several reasons for the procedure to be conducted is at hand.
These reasons include being in possession of a stolen item or anything used or intended to be used in the commission of an offence. Other reasons involve the suspected possession of a dangerous article related to a crime or the possession of an illicit drug. And if found, such items can be seized.
The rules around what an officer can do during a pat-down search are contained in section 30 of the LEPRA.
An officer can run their hands over outer clothing and require clothing, such as coats, gloves, shoes, socks and hats, be removed. An officer can examine things the subject of the search is in possession of, and they can run an electronic metal detector over outer clothing.
Section 21A of the LEPRA also permits an officer conducting a search to require that the individual being searched open their mouth for inspection and shake out their hair. Officers can't forcibly open a person's mouth. And failure to comply with these orders can see an individual fined $550.
Rules for strip searches in NSW
Instances of police strip searching the public have dramatically increased over recent years. To a large extent, this has been in relation to the ever-increasing use of drug dogs (see below), but it has also been in relation to police stopping civilians over suspecting them "on reasonable grounds."
Section 31 of the LEPRA outlines that with reasonable suspicion and "if thought necessary" an officer can strip search an individual at a police station, but in order to do so elsewhere, "the seriousness and urgency of the circumstances" must necessitate the procedure as well.
The next four sections of the legislation stipulate how a strip search must be carried out. This includes an officer informing an individual that they're going to conduct the procedure, the reasons for doing so and the officer must ask for the person's cooperation.
A person should never give consent to being searched, as whilst it is best to politely follow police orders, not giving consent means any subsequent charges might be thrown out of court if it's proven the search was carried out illegally.
A strip search must be conducted in a private area, out of view of the opposite sex. Searching officers must be the same sex as the subject being searched. No searching of the genital or breast area should occur. And a suspect cannot be questioned whilst being strip searched.
No one under 10 years old can be strip searched. Those between the ages of 10 and 18 must be accompanied by a parent or guardian. No touching can occur during a strip search, body cavities cannot be searched, and the procedure shouldn't involve the unnecessary removal of clothing.
The NSW Police Force Person Search Manual states that an officer can directly move to a strip search without conducting a regular search first. And controversially, the document states that officers can require a person to lift their testicles and breasts, part their buttock cheeks and squat.
Politely refusing a search by police
If an officer decides to search you, it's best to remain calm and cooperative.
Trying to resist or thrashing about can result in a charge of resisting arrest, or even assaulting a police officer. And if you swear in public, this can lead to a fine or a charge of using offensive language.
Make sure you note the time and place of the search, as well as the officer's name and badge number.
It is legal to film police, so have a companion stand back and record the event on their phone, without hindering the police in their duties. This can ensure police act within the bounds of the law.
The use of drug detection dogs
NSW Police commonly utilise drug detection or 'sniffer' dogs at music festivals despite the fact that they are largely ineffective.
Festival-goers should be aware that drug detection dogs on patrol are trained to detect trace amounts of cannabis, ecstasy (MDMA) and methamphetamine (ice). It's important not to fall for the many myths around being able to 'trick' sniffer dogs at festivals, as even minute traces of certain drugs can lead to a positive detection.
If a dog provides a positive response, the police will likely conduct a 'pat-down-search' for illicit drugs. It's very important that you do not consent to any search by police.
LEPRA contains most of the powers NSW police possess when carrying out its duties. Also known as the LEPRA, sections 145 through to 150 of the legislation, specifically deal with the use of drug detection dogs.
Further, the NSW Police Force Drug Detection Dog Deployment Standard Operating Procedure manual explains that a sniffer dog will indicate if it has picked up the presence of an illicit substance in the air space around a person by sitting down next to them.
The police SOPs stress that a dog indication alone doesn't constitute reasonable grounds to search a person. In fact, it advises officers that they must carry out further investigations, questioning or observations that can then determine a reasonable suspicion to search the indicated person.
The largest misconception around the drug dog program is that an indication alone does warrant a search. Many citizens hold this mistaken belief and unfortunately, anecdotal evidence suggests a lot of police officers operate under this misguided assumption as well.
After warning that an indication isn't reasonable grounds for a search, the manual also explains that officers conducting one must preserve "a person's privacy by removing them from areas which are in public view". And if no drugs are found, the person doesn't have to supply their details.
When police set out to conduct a general drug dog operation in an "open" public area, they're required to obtain a warrant under section 149 of the LEPRA. And these warrants allow officers to carry out sniffer dog operations for up to 72 hours.
But, the manual also warns officers that while they may have a warrant to use a drug dog in a public area, this doesn't allow them to place the sniffer dog in a motor vehicle that's in the vicinity, as the interior of a motor vehicle is not deemed a public place.
"lf a drug detection dog does indicate the scent of a prohibited drug from the outside of a vehicle, the dog handler would inform the support police who will make further enquires," the SOPs manual sets out. "The decision to search inside that vehicle rests with the support police."
Incidentally, in regard to the support police, the manual explains that as the safety of a dog handler and a canine are paramount, they should be accompanied by six other officers when in the field. And in the case of dance parties at least ten extra support police are required to be on hand.
Section 148 of the LEPRA explains where police can carry out drug dog operations. This includes in an around licensed premises, at sporting events, concerts, dance parties and music festivals, as well as at entrances to public transport, tattoo parlours and in the Kings Cross precinct.
The standard operating procedures warn police that due to negative opinions about such searches, they should act professionally if "semi-organised protests" break out. And officers should also be aware that they may be filmed when conducting a search without their consent or awareness.
What to do if you're arrested
If you are arrested for a drug offence it's important to understand what constitutes a lawful arrest and what to do next.
Section 99 of LEPRA provides officers with the power to arrest a person without a warrant if they reasonably suspect that individual to have committed a crime or to be committing one.
Section 99 also permits arrest if an officer considers it "reasonably necessary" to prevent offending, stop a person fleeing a crime scene, enable an inquiry into a person's identity, ensure an individual appears before court, to obtain property connected to an offence, preserve evidence, prevent the harassment of a witness or a victim, protect a person, or due to the serious nature of a crime.
Section 115 of the LEPRA stipulates that from the time of arrest police have a maximum of six hours to investigate an individual before they either have to release them or charge them with a crime. This investigation period may be extended if the officers obtain a detention warrant.
If you are placed under arrest by police on the night it's very important that you do not provide them with any information beyond your name and address.
You have a right to remain silent, unless it is a traffic offence in which case you will be required to provide police with the details of the person driving. This is called a ' form of demand'.
If you are under arrest, police are trying to build a case against you. They are not your friends and you should not feel compelled to speak to them.
Police can only hold you in custody for a 'reasonable time' – which is normally 6 hours, not counting 'time out periods' such as the time it takes to get you to the police station, refreshments and so on – in order to conduct an investigation otherwise they must either charge you or let you go without charge.
If you are refused bail at the police station, you must be taken to a court 'as soon as practicable' where a magistrate will decide whether to release you from custody, unconditionally or with bail conditions.
Stay safe, look after your mates and have a blast at the Mardi Gras!
If drugs are located on your person, it's best to stay silent, as you have no obligation to speak to police or answer any questions other than providing your identity. This will prevent you saying something that might be detrimental in the long run.
In the worst-case scenario, telling police that you intended to give drugs away or share them with friends could lead to the more charge of supply, rather than possession.
Be aware that you can be charged with drug supply if you're caught with a "trafficable quantity" of drugs on you, even if there's no other evidence to suggest you're actually supplying others. This is known as deemed supply (explained above).
If you are charged with deemed supply, it will be up to you (or your lawyer on your behalf) to demonstrate that you were in possession of the drugs for your personal use only. If this can be established, police may withdraw the charge or it can be thrown out of court.
For up to 15 grams of cannabis, police can issue you with a cannabis caution, which is basically a warning and will mean you won't be sent to court. However, not everyone is eligible for a cannabis caution.
Going to court over an drug matter?
If you are you going to court over a drug-related offence, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
