As the weather warms and music festival season approaches, a concern for many attendees will be how to deal with police and what your rights are. This is due to the often-overwhelming presence of police officers and sniffer dogs at festivals and concerts.
Upcoming festivals include 'Listen Out' at Centennial Park, Sydney and the 'Knockout Outdoor' Festival at Sydney's Giants Stadium in Sydney Olympic Park which will both be on 30 September 2023.
At 'Splendour in the Grass', which is a music festival annually held in Byron Bay, police conducted a high-visibility operation over the four-day event, in July 2023.
It was specified to target illicit drug use and supply, alcohol-fuelled violence, and anti-social behaviour.
NSW Police reported that they detected and seized a number of illicit drugs, including cannabis, MDMA capsules, magic mushrooms (psilocybin), methylamphetamine and cocaine, with the assistance of sniffer dogs.
This resulted in 42 people being charged and issued with future court attendance notices, 36 people being issued criminal infringement notices (fines) and 31 people being issued with cannabis cautions.
In 2022, Listen Out and Knockout Outdoor also coincided on the same date, with other 60,000 festivalgoers in attendance. Over 70 people were charged with drug possession, whereas only 4 were charged with supply.
Unfortunately, the 18 drug overdoses occurred across both of the festivals (12 at Knockout, 6 at Listen Out).
South West Metropolitan Region Commander, Assistant Commissioner Stuart Smith commented at the time that: "police will continue to conduct high-visibility operations to target the use, possession and supply of illicit substances – along with antisocial behaviour and alcohol-fuelled violence – particularly as large-scale events continue to return in the summer months."
WHAT ARE THE PENALTIES FOR DRUG POSSESSION?
In New South Wales, it is a criminal offence to possess a prohibited drug.
Substances classified as a 'prohibited drug' are outlined in schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) ('DMTA').
This includes cannabis, MDMA (3,4-Methylenedioxymethamphetamine), ketamine, cocaine, heroin, amphetamine, magic mushrooms (psilocybin) and LSD (lysergic acid).
The maximum penalty associated is 2 years imprisonment and/or a $2,200 fine.
Sentencing statistics outline that over 50% of drug possession cases are dealt with by way of the defendant being convicted and fined, with the amounts ranging from $200 – $750 in a majority of cases.
However, police also have the discretion to issue an on-the-spot fine (referred to as a 'criminal infringement notice') of $400 to those found to be possession of a prohibited drug, in accordance with schedule 4 of the Criminal Procedure Regulation 2017(NSW).
Payment of this fine will not result in a criminal conviction. Whilst you can choose to dispute this fine in court, you risk facing the maximum penalties outlined above, including having a criminal record.
In order for police to be able to issue a fine, the amount of the drug concerned must weigh no more than the 'small quantity' for that drug.
What a small quantity is will vary based on the relevant substance, and schedule 1 of the DMTA outlines classifications of quantities corresponding to their relevant amounts.
For example, the 'small quantity' of cocaine and amphetamine is 1 gram, whereas it is 2.5 grams for ketamine and 0.04 grams for magic mushrooms (psilocybin).
However, for MDMA or 'ecstasy' (referred to as 3,4-Methylenedioxymethylamphetamine), the applicable amount is no more than 0.25 grams if in capsule form, or 0.75 grams in any other form.
It is important to note that this is a discretionary option available to police, which means that they still can formally charge you with drug possession, even where you possess a small quantity.
On-the-spot fines are not applicable if you have been caught possessing cannabis leaf. Instead, police may decide to issue a 'warning' without charge, to an eligible offender, who is in possession of 15 grams or less, and admits to having in their possession for personal use.
This option is labelled the 'Cannabis Cautioning Scheme'.
Police are unable to issue a caution if the offender was committing other criminal offences at the time, has prior convictions related to drugs, violence, or sexual assault, or has received a caution more than twice.
When you receive a cannabis caution, you will also be provided with details of the Alcohol and Drug Information Service which assists in educating people as to the health and legal ramifications of using cannabis, as well as options for treatment and support.
WHEN CAN POLICE OFFICERS SEARCH ME?
The power for police officers to stop, search, and detain a person, without a warrant, is contained with section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA').
It provides that police may stop, search, and detain you, without a warrant, if they suspect on reasonable grounds that you possess or control:
- something stolen or otherwise unlawfully obtained,
- anything used or intended to be used in or in connection with the commission of a relevant offence,
- considered a dangerous article (i.e., prohibited weapon, firearm, spear gun) in a public place that is being or was used in or in connection with the commission of a relevant offence,
- considered a 'prohibited drug' or 'prohibited plant' in contravention of the Drug Misuse and Trafficking Act 1985 (NSW).
The police will then be able to seize and detain anything in your possession (or under your control) that relate to these items outlined.
When police are conducting a search, and they suspect on reasonable grounds that you are concealing something in the mouth or hair, they may direct you to:
- open your mouth to enable it to be searched, or
- shake, or otherwise move, your hair.
This does not authorise police to forcibly open a person's mouth, however, failing to comply with such a direction is an offence punishable which a maximum penalty of a $550 fine.
There are two main types of searches that a police officer may carry out on a person, including a general ('frisk') search and a strip search.
During a general or 'frisk' search, a police officer can:
- Quickly run their hands over your outer clothing,
- Require you to remove your coat/jacket or similar article of clothing and any gloves, shoes, socks, and hat,
- Examine anything in your possession,
- Pass an electronic metal detection device over or in close proximity to your outer clothing or anything removed from you.
In comparison, during a strip search, it may involve you removing some or all of your clothing.
Police Guidelines prescribe that any search requiring more than removing an outer layer of clothing (i.e., coat/jacket, gloves, shoes, socks, hat) should be considered as a strip search.
A strip search should be conducted in a private area. It should also not be in the presence or view of a person who is of the opposite sex, or whose presence is not necessary for the purposes of the search.
However, these protections apply only where it is considered "reasonably practicable in the circumstances."
Strip searches must not involve a search of a person's body cavities or an examination of the body by touch. It is also prescribed that it should not involve the removal of more clothes or more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
Strip searches can only be conducted where the police officer suspects on reasonable grounds that it being one is necessary for the purposes of the search.
A strip search not conducted at 'a police station or other place of detention' (i.e., in a tent at a music festival or a police van after being stopped on the street), can only be conducted where the police officer suspects on reasonable grounds that the seriousness and urgency of the circumstances make it necessary.
Whether a situation is 'serious and urgent' will depend on the facts of the situation. Police officers are required to have a legitimate answer as to how the relevant situation fulfills this.
WHAT HAPPENS IF POLICE SEARCH YOU UNLAWFULLY?
It is important to note that if police do not have reasonable grounds to search you, or do so in an improper or illegal way, any evidence obtained may be excluded by the court.
Section 138 of the Evidence Act 1995 (NSW) provides that any evidence that was improperly or illegally obtained by the police may not be admitted by the court, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in such a way.
This essentially involves a balancing act, in which the court will take into account the relevance and importance of the evidence in the proceeding, as well as the nature of the relevant offence.
It will also consider factors including the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless, and whether it was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.