Criminal Law and Process B Drug Offences Law is exclusively confined to statutes: Drug Misuse and Trafficking Act

t 1985 (NSW), Poisons and Therapeutic Goods Act 1966 The government sees statute as a way of responding to social/administration problems rather than a way to delimit the conditions which must be present before the state interferes. The perception that criminal law and process is an instrument which can be use to perceive the contours of specific problems has little regard for the demands of general principle: o Deemed drug provisions require the court to assume a drug is a substance when it is not o Deemed trafficking provisions reverse the burden of proof, requiring the defendant to prove the possessed amount was for personal use. o Provisions imposing liability for preparatory acts Identifying the Drugs Problem The harm caused by drugs is difficult to identify social pressure should be applied to those who harm others J.S Mill What harm do drugs do to others? Is the cost to the tax payer in medical costs and loss to productivity Mill conceded that a paternalistic approach may be acceptable in the case of minors only Drug Related Harms Health In 2003, 18 304 death were attributed to drugs, the highest proportion of these being caused by legal drugs o Cannabis is widely used with little damage though it increases the risk of related cancers if smoked and depression/mental illness to vulnerable persons in the cases of prolonged use o Heroin in its purest form is relatively undamaging physically but has some adverse long term effects. Most deaths and injuries occur out of unsafe administration. manufacture or overdose o Stimulants: most stimulant admissions related to psychotic disorder. Risks of heart disease. Economic Cost to Society $30 489 in 2004-05 tobacco being the most costly Drugs and Crime Heroin use correlates with property crime with varying rates relatable to varying availability and price Police Corruption A Royal Commission into the NSW Police Service found extensive examples of corruption, including o Drug planting o Recreational drug use by police o Interference in the criminal process assisting traffickers in their bail applications o Theft/extortion o Protection of drug trade o Trafficking drugs seized in operations

Harm Minimisation Policies Drug Summit 1999 NSW Government convened the summit; MPs, experts and community representatives were involved. The recommendations of the summit were concerned with preventing substance abuse, youth, health/treatment, the drugs/crime cycle, drug education and law enforcement. Pharmaceutical Programs Methadone clinics and distribution as a means of heroin rehabilitation. Safe Injecting Rooms To prevent the spread of blood-borne diseases. Trialed in Kings Cross The Drug Court Specifically designed to administer cases referred for judicially supervised drug treatment and rehabilitation. MERIT Magistrates Early Referral Into Treatment program Provides defendants whose drug dependence is a factor in their criminal behaviour with opportunities for voluntary work towards rehabilitation as part of the part of the bail process. Cannabis Decriminalisation Drug Law Enforcement Targeting Supply The main aim is to increase riskiness of dealing drugs as police believe creating an overall scarcity would be impossible. The assumption is that the higher the price, the lower the consumption rate. However, physical dependence needs to be considered. Major assumptions are made regarding the structure of Australias drug trade. There is an assumption that drug markets are competitive, rather than monopolized. It is widely perceived that prioritizing enforcement at importation/trafficking phases is not effective because: o Many people can be high-level dealers o The requirements for becoming a HL dealer are few and can be obtained within a short period o High turnover of high-level dealers o Organizations are readily and easily disbanded as necessary o Formation and reformation of these organization is quick Policing and Harm Minimisation Research has shown that intensive demand-side policing has led to increased public health risks for buyers and sellers o Users less likely to carry injecting equipment o Less desireable settings for administration Of 511 Sydney-based heroin users: o 85% injected where they felt safe from police 74% never discarded syringes quickly 60% (of the remaining 15%) never discarded syringes quickly o 61% were seeking treatment to distance themselves from crime o 63% sought treatment to avoid trouble with the police with the police/courts

Although state and territory police say their primary focus is prosecuting drug supply, the overwhelming majority of those convicted of drug offences are consumers or low-level dealers.

Elimination at the Source Attacking the production/cultivation of drugs overseas using crop-spraying or corp substitution Primarily a US initiative, though Australia has been involved in related UN tasks Failures of these efforts have been caused by o Drug crops produce the most profit; small farmers are often reliant on the income they produce o Governments and often weak in growing areas which are remote and sometimes controlled by ethnic groups o Many governments are unconcerned/unsympathetic o Drugs have several source countries o Local conditions often encourage a legitimate drugs/derivatives market o Drug cultivation is traditional economic activity for many countries making substitution unfeasible due to the costly retraining of farmers/reconditioning farms and the industry The Historical Dimension Drug law is not derived from the common law but is a product of fundamental attitude changes towards drugs. Australia used heroin/morphine/cocaine on a widespread basis in the 19 th and 20th centuries NSW drug legislation has two roots o Provisions regulating access to drugs on a medical basis comprising of a licensing system o General criminal prohibitions discouraging non-medicinal drug use. The Poisons Act 1902 Defined laudanum and opium as poisons, only those certified could sell them In 1923, morphine and cocaine were brought under the Acts provisions The Police Offences (Amendment) Act Made it an offence to sell smoke or possess opium for non-medical purposes There is considerable evidence showing that the initial attack on opium was a product of the communitys antagonism towards the Chinese In response to the Hague Convention 1912, a proclamation under the Customs Act 1901 prohibited importation of opium for non-medicinal use Australia continued to follow the international communitys example, gradually tightening restrictions and increasing the types of drugs governed by the legislation.

New South Wales Law Poisons and Therapeutic Goods Act 1966 o No real distinction between medicinal drugs and drugs of abuse (most drugs can fall into both categories) o Deals with possession/distribution of medicines and licensing o Contains various deeming provisions: s18A(1) provides that a persons possession of more than a certain amount will incite a presumption of supply and will attract the appropriate charge unless the presumption can be rebutted by the accused s18A(2) provides that if someone represents something as an illicit substance and it turns out not to be, they will still attract criminal charges regarding possession Drugs Misuse and Trafficking Act o No distinction is made between the various types of drugs; the offences provided apply to all prohibited drugs

o Little attempt to distinguish between different substances in terms of their seriousness. Only when it comes to maximum sentences regarding production and cultivation, supply is cannabis treated with less severity.

The Prosecution of Drug Offences Majority are summary offences Most common convictions for possession Indictable offences make up a small number of charges but involve a much larger amount of drugs Possession a core concept A summary offence, but a means of proving the indictable offence of supply Requires proof of o Physical Contact Filipetti the court requires exclusive physical contact by the accused Dib: where the drug is not in your physical control but on your premises the accused must have the exclusive right to exclude persons from the premises in order to be in possession of the substance o Awareness of the Drug He Kaw Teh: T he accused must know of or believe in the existence and the nature of the substance in their possession Lau: Awareness of a significant and real chance of a drugs nature and existence is sufficient o Minute Quantities anything undetectable by anything but scientific means will not invite criminal charges.

Drug Offences II Indictable Offences Aimed at commercial drug trafficking Smaller quantities may be dealt with summarily Drugs Misuse and Trafficking Act draws distinction between prohibited plants and prohibited drugs and sets different penalties accordingly. Supply Offences Offences are relevant on proof of actions associated with supply, which can be proven to have occurred in one of three ways: (1) General Meaning: giving a thing to someone who needs it (2) Artificially extended meaning pursuant to s3(1) To sell and distribute Agreeing to supply Offering to supply authorizing permitting attempting (3) S29 deems possession of a trafficable quantity as supply a presumption to be rebutted by the defence Supply at Common Law Carey Supply does not include temporary possession of a drug by a person who intends to return it to its owner Hunter Definition of supply is inclusive however, it retains its ordinary meaning: to furnish or provide, not suggesting that the term supply is an adequate description for returning nothing to its owner. The Burden of Proof that the drugs were being held is on the Defendant and claiming ignorance means this position cannot be fallen back on at a later date CCA has made it clear that returning drugs to someone who intends to supply them may be charged as an accessory

Extended Meaning of Supply Agreeing to supply: courts see s26 (conspiracy) as a broader concept Offer to supply: whether any supply eventuates is irrelevant, the intention inherent in making the offer is the only requisite mens rea (Dendic) Sending: does not require reception (Pinkstone) Deemed Supply Onus on the accused to prove the possession of a trafficable quantity was not for the purpose of supply: o Mens Rea Belief in, or Actual knowledge, or Belief in or awareness of a real or significant chance o Issues with deemed supply Preparatory acts are traditionally dealt with by attempt offences but drug legislation ignores this principle by way of deeming supply

Deemed Drugs 40(1) a substance which, for the purpose of being supplied, is represented as being a prohibited drug shall be deemed to be a prohibited drug 40(2) a growing plant Ongoing Supply 25A(1) 3+ times in 30 days (not cannabis) 25A(2) not necessary that the same drug be supplied three times Jackson o Supply must be done for financial/material reward Knowingly take part in Manufacture/Supply s25 Supply of Prohibited drugs 25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence Takes part in a) Takes part/participates in any step/causes in the production or supply b) Provides or arranges finances c) Provides premises for any steps to be taken o Karam Accused must be aware that the commodity is prohibited Awareness of the likelihood will be sufficient o Derbas A person can be conviceted for knowingly partaking in any part of the extended definition of supply Knowingly o Zaiter It is possible to knowingly take part in ones own activities Part taking in Manufacture o BD acquisition/transport of chemicals/equipment do not, without more, constitute steps in the process of manufacture; these are preparatory steps Provision of Premises o Ruiz-Avila if you do not occupy the premises but have belief/actual knowledge or awareness of a significant chance of the presence of illegal drugs in said premises, this will be enough to secure a conviction Inciting Supply S27 aiding, abetting, counseling or procuring or inciting a person to commit any of the indictable offences o Eade incitement occurs when a person seeks supply of illegal substances from a person who is not ready and willing to supply them

Inciting Supply S23 cannabis, coca, opium poppy, Persian poppy (except for science) Liability extended to knowingly partaking o Mens Rea knowledge, belief, awareness of significant chance Offences Involving Precursors Hamzy a series of small instances of supply by the same dealer can be accumulated to establish involvement of a commercial quantity Maximum penalties increase by 1/5 where the person supplied is under 16 Commonwealth Offences The MCCOC Report o Prior to 2005, commonwealth drug offences were limited to activities associated with importing and exporting, as provided for by s51 of the constitution o In 1998 the MCCOC released a report containing model drug offences (the most serious) Constitutional Basis for Commonwealth Offences o S51 of the Australian constitution importation/exportation is an external affair o Offences established by the Criminal Code Trafficking controlled drugs Commercial cultivation of controlled plans Selling controlled plants Pretrafficking controlled plants Import Export Possession Offences involving children/procuring children to traffic drugs Combining quantities of drugs, plants or precursos o Controlled Substances the Criminal Code contains two sets Domestic controlled drugs Import/export border controlled drugs o Importing and Exporting Offences Customs Act 1901 (Cth) ss 307.1-307.4 importing/exporting controlled drugs/plants ss 307.11-307.13 importing or exporting border controlled precursors ss 307.5-307.7 possessing imported border controlled drugs or plants ss 307.8-307.10 - Possessing border controlled drugs or plants reasonably suspected of being imported Campbell importation shall be taken to include any act that allows the drugs/precursors to remain in the country importation will continue until the goods have reached their destination

as a matter of ordinary usage, the term imports seems to have implicit within it the idea of a beginning and an end fault element: intention to import or export Toe to import has a wider meaning it would include the conduct of the person who arranges or causes the drugs to be imported mere proof of involvement in collection does not constitute importation though it may regarded as circumstantial evidence tending to prove it a person has intention with respect to conduct if he/she means to engage in that conduct fault element: recklessness as to the nature of the substance (awareness of a real risk Rosenfield) Fang the crown must prove an intent to possess and recklessness (or knowledge, or intent) as to the substances nature

Domestic Distribution Offences Intended to target those involved in the domestic drug market for profic Offences of this nature contain three key elements: 1) Type of activity: supplying, cultivating, trafficking 2) Nature of substance: drug, precursor or plant 3) Quantity: commercial, marketable or other Prohibited activities o Sell barter/exchange/agree to o Trafficking sell/prepare/transport/guard or conceal/possess with intent (trafficable quantity)

Dishonest Acquisition Current NSW Law A large number of fraud/forgery offences were repealed and replaced, breaking the link between larceny and other acquisition offences new offences relied on a statutory definition of dishonesty as a key element of mens rea Changing Ideas of Dishonest Acquisition Originally, criminal laws were not in place to protect the rights of the owner but to ensure that whoever had possession of property could freely use it without fearing it be taking by force Development of free market and capitalism led to growing emphasis on the rights of individual owners Manifest Criminality Dishonesty Much greater weight placed on the mens rea element of dishonesty, though it is hard to define Older larceny offences place weight on highly elaborate actus reus elements; more modern fraud offences focus on dishonesty Larceny Crimes Act s117 whosoever commits larceny shall be liable to penal servitude Illich larceny is committed by a person who without the consent of the owner, fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen, with the intent at the time to permanently deprive the owner thereof: o Actus Reus 1) Property that is capable of being stolen not land, fixtures or wild animals; must be tangible 2) In possession of another Anic taking illegal drugs from one person by another with the intent of permanent deprivation is an offence. larceny is an offence against possession the owner merely being the person who has the best right to possess the thing 3) Taking/asportation Wallis v Lane any movement, with an intent to steal, of goods is sufficient special rule hard currency: an intent to permanently deprive of coins/notes (not from forgery) 4) Without consent