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The Use of ‘Ice’ and the Criminal Justice System

There is an argument that coverage by the mainstream media of the drug crystal methamphetamine (or ‘ice’) has skewed both public perceptions about the drug itself and its users, as well as the way in which users are dealt with by those involved in the criminal justice system.

This article attempts to separate fact from fiction, and to explain how the use of drugs can impact on the way in which defendants are dealt with by the courts.

The effects of ‘ice’

Ice speeds up messages between the body and brain increasing energy, reducing appetite and increasing heart rate.

At moderate doses, it can make people nervous and agitated but, at high doses, it can cause more worrying effects including psychosis, paranoia and aggression.

A correlation between ice use and offending does exist, but the relationship is more complex than you would think.

The Drug Use Monitoring in Australia (DUMA) program detects the presence of illicit drugs in the urine of people entering custody in Australia. In 2018-19, fifty-two percent of detainees who participated in DUMA tested positive for methamphetamine. This was by far the most prevalent illicit drug detected, higher than cannabis.

Whilst this indicates a relationship between ice use and offending, research attempting to establish a direct link is mixed.

A 2006 paper looking at the relationship between ice use and violence in NSW found insufficient evidence for a direct-link between ice consumption and violence. However, it did note a relationship between methamphetamine-induced psychosis and offending.

More recent research has found that the relationship between ice use and violence is stronger if defendants are frequent users of high purity methamphetamine, as opposed to occasional or recreational users.

Moreover, ice use tends to be more common amongst people who have other risk-factors for offending – such as impulsiveness – meaning ice can exacerbate an existing predisposition to violence, rather than causing violent behaviour directly.

Overall, the relationship between ice use and offending is far from straightforward.

Is Ice Use A Defence?

There is a common misconception in the community that the criminal justice system treats drug users more leniently, or considers drug dependence (addiction) a ‘defence’.

This is not the case.

Part 11A of the Crimes Act 1900 (NSW) outlines the general principles that apply to self-induced intoxication, including whilst ‘high’ on illicit drugs such as ice.

A distinction is made between someone willingly getting high (self-induced intoxication) and people who are drugged without their consent.

Generally, self-induced intoxication is not relevant to determining a guilty mind for most offences (s428D), including murder, manslaughter and assault causing death (s428E).

If an offence requires asking the question of what a reasonable person would do, the court will consider the state of mind of a reasonable sober person, regardless of whether the defendant was high at the time (s428F).

Section 428C states that self-induced intoxication can be considered when an offence requires specific intent (for example, an intent to cause injury) but not if a person had intended to commit the crime before getting high or got high in order to commit the offence.

Overall, being high on ice at the time of offending it is not defence.

When Can Addiction Be Considered?

If someone is dependent (‘addicted’) to ice, this may be raised within the context of a diversion program, Drug Court referral or during the sentencing of an defendant.

Drug addiction is not inherently a mitigating factor in sentencing and courts do not normally take the fact that the defendant was addicted as a good reason to give a lesser sentence.

The reason behind this was outlined by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 whilst sentencing a defendant for a robbery offence:

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”

However, drug addiction may be considered in some circumstances including:

  • Whilst assessing prospects of rehabilitation.
  • As an indicator of relevant mitigating factors such as social disadvantage, poverty or mental health issues.
  • If the defendant became dependant at a very young age, where it couldn’t be considered a personal choice.

Going to court?

If you have been accused of a criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward.

What Are the Rules For Accessing and Selling ‘Poppers’ in Australia?

By Jarryd Bartle and Ugur Nedim

New laws relating to the sale of alkyl nitrite products – also known as ‘poppers’ – come into effect on 1 February 2020.

The changes, made through the Therapeutic Goods Administration (TGA), have created general confusion and led to concerns amongst the homosexual and bisexual community, who feel they are being unfairly targeted.

What Are Alkyl Nitrites?

Alkyl nitrites are the broad chemical name for a range of psychoactive chemicals including amyl nitrite, isoamyl nitrite, isopentyl nitrite and isopropyl nitrite.

The substances have been used to relieve a range of medical conditions, including angina and other heart conditions. But they are also used recreationally as a sexual aid, predominantly by homosexual and bisexual men.

The primary effect of ingesting alkyl nitrites is an increased heart rate and blood flow throughout the body.

Inhalation has a relaxing effect on involuntary smooth muscles, such as those in the throat and anus. As a result, the substances are used as a sexual aid for anal sex by increasing blood flow and relaxing sphincter muscles.

Alkyl nitrite products have been popular within the gay community since the 1970s, when they began to be sold in sex shops and used in gays bars and bathhouses.

Their popularity continues until today – according to a recent survey, 32.1% of Australian gay and bisexual men in Australia have used alkyl nitrites as a recreational drug within the last 6 months.

The Changes

In 2018, the TGA announced it would look at tightening the rules regarding the sale of alkyl nitrites due to their widespread, relatively unregulated sale within sex shops – where they are sometimes labelled as ‘leather cleaners’.

The TGA also expressed concerns about a reports that the alkyl nitrites n-propyl nitrite and isopropyl caused eye damage.

The administration originally proposed rescheduling all alkyl nitrite products to Schedule 9 under the National Poisons Standard.

This caused a strong backlash amongst the LGBTIQ community, who saw it as a backdoor way of criminalising them by placing the substances in the same category of many other illegal drugs.

In a joint submission, the Australian Federation of AIDS Organisations and National LGBTIQ Health Alliance argued that the TGA “significantly overstates the toxicity of the substance and the potential for problematic use” and “ignores the benefits associated with the therapeutic use of alkyl nitrites as a muscle relaxant to make sex less painful for gay and bisexual men and sex workers.”

In response, the TGA revised its approach to reflect community concerns. A final decision was made on 6 June 2019 to:

  • Make all alkyl nitrite products ‘prescription-only’ substances by default (Schedule 4 under the Poisons Standard).
  • Move amyl nitrite in preparations for therapeutic use to a category allowing for over-the-counter pharmacy sales (Schedule 3).
  • Up-schedule n-propyl nitrite and isopropyl nitrite to being prohibited substances due to their implication in eye damage (Schedule 9).

This change was cautiously welcomed by some LGBTIQ groups, as it appeared to allow alkyl nitrite products to be purchased via prescription at pharmacies.

But once the dust settled, it became clear that this could lead to practical barriers to access.

Barriers to Access

Many in the LGBTIQ community believe that having to see a doctor for a prescription and then present that prescription to a pharmacist will cause significant embarrassment to members of an already heavily stigmatised community, and is unnecessary given the relative safety of poppers.

There are concerns that many, too embarrassed to go through the process, will simply not seek to access the substance.

In addition, LGBTIQ activist Joshua Badge found that when he attempted to have a prescription filled last year, there was significant confusion amongst both GPs and pharmacists about the relevant rules.

“Multiple doctor’s visits, dozens of calls, hours of travel time, weeks of waiting… and nothing to show for it. In the end, LGBTIQ people and folks wanting to have enjoyable sex face a gauntlet of stigma, medical jargon, time-consuming hassle and criminalisation.” Badge wrote in Junkee.

The quest to have an amyl nitrite product available over-the-counter at pharmacies also seems unlikely, as there are no current “preparations for human therapeutic use” on the market.

To be readily available on the market a manufacturer would need to register, manufacture and distribute an amyl nitrite to pharmacies, a process which hasn’t occurred.

“It may be two years before we see amyl nitrites in the marketplace” predicted Simon Ruth. CEO of Thorne Habour Health, an organisation that specialises in services for the LGBTIQ community.

Magistrate Dismisses Drug Driving Charge for Medicinal Cannabis User

A driver who was prescribed medicinal cannabis oil for his multiple sclerosis has had his drug-driving charge dismissed by an Adelaide Magistrate.

Brenton Peters is one of over 3000 Australians legally prescribed cannabis oil, but was facing significant penalties for driving with a detectable amount of THC in system.

In a significant decision, Magistrate Susan O’Connor dismissed Peter’s case citing the fact that there was no indication he was impaired or a danger to other drivers.

Here’s what the decision means and why people are still calling for reform of drug-driving laws in South Australia.

Drug Driving Laws

Like in NSW, it is an offence in South Australia to drive or attempt to drive a motor vehicle whilst a prescribed drug is present in your oral fluid or blood.

Mr Peters was pulled over by police and undertook a saliva drug test which came back with a positive result for THC, the psychoactive component in cannabis.

Cannabis is a prescribed drug under the law, regardless of whether it has been prescribed for medical reasons.

Penalties include a criminal record, licence disqualification and fines.

Offences which relate to legal, prescription drugs in South Australia focus on penalising use where someone is “incapable of exercising effective control of the vehicle” rather than having a detectable amount.

Advocates for medicinal cannabis reform have criticised current laws for being unfairly discriminatory, particularly given different rules apply to other prescription drugs

Medicinal cannabis users have been warned against driving for at least 48 hours after consuming a cannabis product to avoid a positive saliva test.

However, in one infamous NSW drug-driving case, THC was detected via a saliva test of a driver who consumed cannabis a week prior.

Clearly, the current laws provide little certainty for medicinal cannabis users.

Dismissing the Charge

South Australian legal commentators say that Magistrate O’Connor found Mr Peters guilty of the offence, but then dismissed the charge without proceeding to a criminal conviction due to the circumstances of the case, as well as the defendant’s other personal factors.

The South Australian law is similar to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales, which allows a magistrate to exercise his or her discretion to dismiss a charge without recording a conviction even if a person is technically guilty.

The factors relevant to a determination under section 10(1)(a) in NSW are:

  • the person’s character, antecedents, age, health and mental condition,
  • the trivial nature of the offence,
  • the extenuating circumstances in which the offence was committed, and
  • any other matter that the court thinks proper to consider.

Magistrate O’Connor warned Mr Peters that he will receive a criminal conviction if he drives with cannabis in his system in the future.

Need for Reform

Given the limitations of current drug-driving laws for medicinal cannabis users, many people are calling for reform.

In 2017, an attempt was made by South Australian Dignity Party MLC Kelly Vincent to reform laws for medicinal cannabis users to allow a defence to existing drug-driving offences.  However, this part of the amendment failed to pass through both houses.

“As with other legal medications, [medicinal cannabis] users should be able to be assessed against their personal capacity to drive” Ms Vincent told Sydney Criminal Lawyers® in 2017.

There has been a steady increase in patients approved for medicinal cannabis in Australia, with the TGA granted 25,182 applications from doctors to prescribe cannabis in 2019. This means a large number of patients are currently at risk under existing drug-driving laws.

Alternative models for drug driving testing are available. For example, Norway has been assessing drug levels in a driver’s system (as opposed to any detectable amount) since 2012. This ‘drug level’ approach was also implemented in the Netherlands in 2017.

This recent case follows a number of positive decisions in regarding to medicinal cannabis charges in South Australia.

Jenny Hallam, who was facing prison time for providing chronically ill patients with the cannabis oil free of charge, was given a two-year good behaviour bond last year by SA District Court Judge Rauf Soulio.

Clearly many people, including members of the judiciary, feel that it is time for cannabis reform.

Berejiklian Bins: A Futile Move By a Failing Premier

NSW deputy state coroner Harriet Grahame recently recommended the implementation of pill testing and the removal of drug dogs at music festivals to prevent people from taking substances that can prove fatal, panic overdosing and preloading on drugs to avoid police detection.

NSW premier Gladys Berejiklian came out on Wednesday with her government’s response to these life-saving recommendations made by an expert charged with ascertaining why six young people died in drug-related circumstances at festivals over the last two summers.

And what did Berejiklian announce? She’s going to implement amnesty bins at festivals, which are designed to be an accompaniment to pill testing operations. They allow people – who’ve had their drugs tested to see if they could prove fatal – to throw them out.

The premier said the provision of bins will allow people that “see police or other activity” to not panic, but throw their drugs away. “Other activity” is presumably code for drug dogs. And as well, Gladys saw fit to declare that she’s “closing the door” on pill testing.

What is she on, anyway?

Respectfully, Ms Berejiklian has never taken any drugs, neither does she have a medical background, and further, she ignores the evidence-based recommendations made by the experts, so she has no idea how ridiculous and harmful what she’s saying in regard to these issues actually is.

Although, the premier could consider a couple of things before she gets more blood on her hands, such as people have pretty much always taken drugs and the fact that some die, hasn’t stopped this. Just in the same way that alcohol deaths haven’t prevented people from enjoying a glass of chardy.

When people go to the trouble of sourcing drugs and paying for them, they don’t expect to die, as the majority of them don’t. When they preload prior to a festival, or panic ingest, they don’t expect to die then either. They’re actually trying to avoid drug dogs and strip searching obsessed police.

If Ms Berejiklian followed the deputy coroner’s recommendations, young people could walk into a festival have their drugs tested, have a discussion with a health expert, avoid taking potentially lethal doses or toxic substances and they could even use her thoughtfully provided bins if they chose to.

And let’s face it, there’s always going to be that person who refuses to use their seatbelt, even though it’s provided, and ends up paying with their life because of it.

A veteran in preventing drug deaths  

The harm reduction programs Dr Alex Wodak has played an integral part in seeing rolled out have saved countless lives in this country. On whether the amnesty bin idea is going to save lives, he said “the answer, unfortunately, is a clear no”.

And as far as the president of the Australian Drug Law Reform Foundation is concerned, the door is definitely still open on “further discussion of pill testing to reduce deaths”. He added that while “saturation policing, strip searches and sniffer dogs might be clever politics”, they don’t work.

“At some time in the future, state and territory governments throughout Australia will accept the overwhelming arguments for providing testing at youth music events and also at fixed sites,” Dr Wodak told Sydney Criminal Lawyers.

“Until policy changes, there will be more needless, preventable deaths.”

Another Young Life Lost at a Music Festival: It’s Time for Pill Testing

By Sonia Hickey and Ugur Nedim

Just last month, New South Wales Police Commissioner Mick Fuller expressed the view that our law enforcement’s current ‘zero tolerance’ approach to drugs is ‘working’, and that pill testing is not an option for our state.

In the same breath, he was adamant police would not be implementing two of the most significant recommendations made by NSW Deputy Coroner Harriet Graeme after her inquiry into drug-related deaths at music festivals.

Ms Graeme’s draft final report is the culmination of months of inquiry into the harrowing drug-related deaths of several teenagers at music festivals. In it, she makes recommendations for a trial of pill testing and the abandonment of sniffer dogs, as well as the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

Another drug-related music festival death

But, as the summer season of music festivals kicked off with Strawberry Fields this weekend, one life has already been lost to a suspected overdose.

A 24-year old man allegedly consumed a cocktail of illicit drugs before he was brought to a medical tent.

Medical staff were told he had consumed multiple substances including GHB, MDMA and cocaine.

Soon after, he suffered a fatal heart attack and, despite the efforts of the medical staff, he was pronounced dead in the early hours of Sunday morning.

An avoidable death?

Of course, it is too early to tell whether his death could have been avoided. An autopsy and toxicology reports will help to piece together what occurred in the lead up to the tragedy.

There will be questions about the purity of the drugs in his body, the amount of drugs he had consumed, the circumstances which led him to ingest the drugs, and whether the medical staff were adequately equipped to deal with his situation.

This information will be crucial to understanding the final hours of this young man’s life.

Young people will take drugs, despite the law

But what remains abundantly clear, and consistent in this tragedy and the others that have gone before it, is that young people are still taking drugs at music festivals, despite what the law says and the use of law enforcement tools such as drug detection dogs.

During the same weekend, 13 people were allegedly found in possession of drugs at another gig in New South Wales, Festival X, at Sydney Olympic Park.

Was the coronial inquest in vain?

And, as countless of experts have already pointed out, it’s remiss of us to ignore the fact young people will continue to take drugs because, in doing so, we continue to do nothing to minimise the chance of death.

As a result of last year’s coronial inquest, which looked into deaths at festivals, the behaviour of young people when sniffer dogs are present, as well as the potential impact of pill testing, we have a great deal of information about why young people have died and how this might be prevented.

As the Coroner’s Court heard, research suggests that 10 per cent of people who encounter sniffer dog operations engage in the dangerous practice of swallowing all of their drugs at once, which can lead to overdose.

What’s more, the Court heard the dogs produce false positives – where they make a positive indication but no drugs are found – two-thirds of the time at festivals, and yet they are being used to justify bodily searches, including invasive and humiliating strip searches.

LECC hearings into strip searches

This week, the Law Enforcement Conduct Commission (LECC) is set to begin public hearings into the strip-searches carried out at the Lost City music festival, an under-18s event held in Sydney in February.

The hearings are part of an ongoing investigation by the LECC, which has already heard a number of distressing stories from the Splendour in the Grass Music Festival.

If there is one positive to come out of the weekend’s music festivities, it is that it would appear that the New South Wales police may have conceded on one of the recommendations from Assistant Coroner Harriet Graeme’s report – decriminalising illicit drugs for personal use.

Police can fine alleged offenders for drug possession

The 13 people found with prohibited drugs at Festival X were dealt with by way of Criminal Infringement Notices (CINs) and fined $400.

CINs are also known as ‘on-the-spot fines’ and mean that police can fine a person rather than sending them to court. CINs do not come with a criminal record, but a person may face the prospect of a criminal record if they elect to challenge the fine by taking the case to court.

Over the coming months, music festivals will face much higher scrutiny than ever before, particularly in light of findings of last year’s coronial inquest.

The NSW government remains under increasing pressure to change its current tactics for policing drugs at music festivals, particularly its stance on pill-testing as a harm minimisation measure, which it has steadfastly refused to consider. 

Only time will tell whether or not the Coronial Inquest’s recommendations will be followed.

Pill Testing: Premier and Police Commissioner Have Their Heads in the Sand

The State Government is adamant New South Wales won’t be implementing two of the most significant recommendations made by the Deputy Coroner after her inquiry into drug-related deaths at music festivals.

Harriet Graeme’s draft final report, recommends a trial of pill testing as well as the abandonment of sniffer dogs, the reduction of strip searches, and the decriminalisation of drugs taken for personal use at music festivals, amongst 28 other points for consideration.

‘Sufficient evidence’ to support a pill testing trial

While conceding that supervised drug testing wasn’t a ‘magic solution’ Ms Graeme said she was in ‘no doubt whatsoever’ there is sufficient evidence to support a trial in New South Wales.

Now NSW Police Commissioner Mick Fuller has provided his response loud and clear, and surprise-surprise, he says the police service does not support pill testing in any form because it is ‘flawed and unreliable’ and sends a dangerous message of false confidence to young people that the drug they want to take is safe, because there is no such thing.’

Premier Gladys Berejiklian has also dismissed Harriet Graeme’s suggestion.

But so far, the New South Wales State Government’s tough zero tolerance stance, measured by arrests and festival bans, has proven time and again that it is not the most effective way to save lives either, because it usually results in young people ‘loading up’ before entering a festival or event, therefore increasing their risk of overdose.

In fact, during the inquest into five-festival related deaths, the Coroner’s Court heard research suggested that 10 per cent of people who encountered sniffer-dog operations engaged in the dangerous practice of swallowing all of their drugs at once.

The inquiry also looked at the use of drug detection dogs, which have been shown to be ineffective as much as two-thirds of the time, and yet they are usually the only determining factor behind police order a strip search, well as their use by police in determining strip searches, a highly invasive policing procedure that has also faced a barrage of criticism not least of all for its potentially damaging psychological effects but also because in a significant number of cases, it is carried out illegally.

Educating young people about drugs can backfire

The New South Wales’ Government’s other weapon in the war against drugs – education – has also proven to be a double-edged sword, with the Coronial inquest hearing that one student in 20 had tried MDMA by the time they’ve reached year 10.

The risk of providing drug education early is that people will be curious about trying it. On the other hand, leaving drug education later could mean it was ‘too late’ to warn young people of the dangers of drugs.

Pill testing can save lives

Pill testing has been trialled in Europe successfully for many years. In particular the Drug Information and Monitoring System operation in the Netherlands has proven itself to be a system that can assist with not only harm minimisation through drug testing, but also by collecting valuable data that can better inform festival planning and more targeted education. More recently, it’s trail in Canberra has also shown positive results.

It’s important to note that while the Coronial Inquest did highlight the fact that pill testing may save lives, it is not in itself, a complete solution. A range of factors including fixing the problem of ill-equipped first aid services at festivals, as well as intense heat and no access to drinking water, which contributes to dehydration also need to be addressed so that young people can enjoy summer music festivals safely.

But the parents of Diana Nguyen, Joshua Pham, Joshua Tam, Callum Brosnan, Nathan Tran and Alex Ross-King who died after taking the drug MDMA at music festivals in the summer of 2018/2019 and whose deaths were at the centre of the inquiry are never the less imploring the state government not to ignore the recommendations nor waste an opportunity to try pill testing.

Before these five MDMA-related deaths at music festivals in NSW last summer, there had been only 12 across Australia in the previous decade. But as well as those fatalities, there were 29 pre-hospital intubations at 25 music festivals in the state in 2018-2019, as well as 25 drug-related intensive care admissions, and at least an additional 23 drug-related hospital admissions.

Sniffer Dogs are Ineffective in Detecting the Presence of Drugs

By Sonia Hickey and Ugur Nedim

The use of drug detection dogs is controversial to say the least, with study after study finding that the dogs have an incredibly high margin for error, and that their presence can lead to dangerous drug-taking activity, such as ‘loading up’ and ‘pre-loading’, which has led to the deaths of several young people in music festivals across Australia.

Handling money or shaking a hand can lead to a positive indicatio

Now, a former police dog trainer has acknowledged that another problem is that while the animals are indeed able to detect the presence of drugs – a positive indication can be the result of residue from items such as currency or even a handshake with a person who used a substance, and not just the actual presence of drugs.

This information has bolstered the argument that a positive indication by a sniffer dog is not sufficient, by itself, to ground the ‘reasonable suspicion’ required to search a person.

Teenage girl strip searched after a positive indication, but nothing found

Just a couple of months ago, a teenager stood in front of the New South Wales Law Enforcement Conduct Commission (LECC), explaining that after a positive indication by a drug detection dog on her way into the Splendour in the Grass music festival last year, she was separated from her friends, and then taken, alone by police into a tent and strip searched. At the same hearing, a New South Wales police officer admitted that many of the strip searches undertaken at music festivals across the state may have been conducted illegally.

Many of these strip searches – a degrading and invasive procedure – have also been undertaken unnecessarily too, because they’re based on a positive indication by a drug detection dog, and various research shows that the dogs are wrong as much as two-thirds of the time, meaning the searches turn up nothing.

Sniffer dogs were introduced to New South Wales around the time of the Sydney Olympics, but even after two decades as part of the police armoury in the war against drugs, instead of catching drug suppliers, or deterring drug users and dealers, drug dog operations have led to tens of thousands of innocent people being subjected to the humiliation of strip searches.

High margin for error

Research from New South Wales shows that the margin for error of sniffer dogs as much as 63%. And here’s why: the purpose of police dogs is to detect people in possession of drugs. The problem is, the dogs are exceptionally sensitive to the scent of drugs, so much so, they are able to pick up minute traces of residual drugs, which could indicate any number of scenarios – perhaps previous use of drugs by a person, or even just that someone has touched drugs, or drug equipment, or a hand of another user, without actually ingesting drugs themselves.

Dave Wright, a former NSW Police dog trainer, explains that dogs are trained through a process of conditioning to recognise and indicate the odour of prohibited drugs.

He says that while the training is highly effective, ultimately it does mean that dogs are not necessarily able to tell the difference between a residual scent and the scent of someone actually in possession of drugs.

What’s more, he says, because the dogs are highly sensitised, it is possible that they will provide a positive indication if someone has been carrying drugs, if someone has had (even limited) contact with drugs in the past, or if, for example, they are carrying money that’s been previously handled by a drug user, or was in a confined space with drugs…. or any number of potential scenarios.

So, are drug dogs’ noses too sensitive to be successful?

If police are using an indication by a sniffer dog as the sole basis to justify ‘reasonable grounds’ to search a person, isn’t it then also possible to arguable that the rates of strip searches that result in a positive finding of drugs are not substantial enough to support grounds for a strip search simply on suspicion?

Over the last five years, reports have indicated that the use of strip searches by NSW police following a positive indication from a drug detection dog has increased markedly.

Under New South Wales law, police can search you if they have a ‘suspicion on reasonable grounds’ that you have drugs on you at that particular time.

However, when the NSW Government passed the Police Powers (Drug Detection Dogs) Act 2001 (‘the Dogs Act’), The Act had a built-in review provision, whereby the Ombudsman would evaluate its effectiveness after two years.

The review was released mid-way through 2006. It had examined 470 drug dog operations over two years. It also found that prohibited drugs were located in only 26 per cent of the recorded positive indications by drug dogs.

Are there better ways to handle drug possession and use?

Furthermore, of the 10,211 positive indications made, there were only 19 successful prosecutions for drug supply – which represented 0.19 per cent of those searched.

The review concluded that “the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers” and with regard to the question of whether a positive indication by a drug dog is ‘reasonable suspicion’ for a police search, the report broadly concluded that: “Given the low rate of detecting drug offences following a drug detection dog indication, it is our view, supported by Senior Counsel’s advice, that it is not sufficient for a police officer to form a reasonable suspicion that a person is in possession or control of a prohibited drug solely on this basis.”

Despite these findings that drug detection dogs are ineffective, the number of searches performed after positive indications has continued to increase dramatically.

Figures recently obtained by the Greens MLC David Shoebridge via freedom of information (FOI) laws revealed that the number of strip searches conducted by police following a dog indication have almost doubled: up from 590 in 2016 to 1,124 in 2017.

While the LECC is continuing to investigate strip searches, with a view to understanding how and why these are being conducted by police and whether or not they are being carried out within the specific guidelines of the law, late last year the Redfern Legal Centre, also launched its Safe and Sound campaign, aiming to reduce the high number of strip searches at music festivals and at other places. It’s also agitating to have the current laws changed, so that police officers have more guidance and the public is better safeguarded.

Of course, this also begs the question of whether or not there’s a better response to the war on drugs and certainly at events such as music festivals harm minimisation measures such as pill testing is still being advocated for.

So far, the New south Wales government has remained steadfast with its outdated ‘just say no’ to drugs view, but the outcome of the LECC inquiry into strip searches and the recent Coronial inquiry into drug -related deaths at music festivals may be successful in finally bringing some more options to the table. Options that aren’t as expensive, as invasive, and which preliminary research shows are more effective. Because what we do know, is that the current ‘zero tolerance’ policy is not working.

ACT to Legalise Cannabis Possession

If history is anything to go by, often when one Australian State or Territory passes legislation on a particular issue, other jurisdictions tend to follow suit.

At least that’s what many Australians hope will happen in the wake of the ACT’s recent legalisation of personal cannabis possession.

What’s permitted under the new laws?

The laws, which come into effect on 31 January 2020, allow possession of up to 50 grams of dry cannabis per person. They also provide that:

  • Any adult in the ACT can legally grow two cannabis plants per person, with a maximum of four per household.
  • An adult can be in possession of up to 150 grams of wet cannabis.
  • Cannabis cannot be consumed in public, or anywhere near children, and will also have to be stored somewhere inaccessible to children.
  • Plants need to be grown where they are not seen by the public or accessible to children.

State/Territory laws versus Commonwealth laws

But the local laws are in conflict of current Commonwealth law, which does not allow personal cannabis use at all. So what does this mean?

Section 109 of the Constitution says that when a federal law is inconsistent with a state or/ territory law, the Commonwealth law will prevail to the extent of the inconsistency/

This means there are still legal risks, because cannabis remains a prohibited substance under Commonwealth law, and as such, police officers in the ACT still have the power to arrest and charge anyone under those laws should they choose to do so.

So, do the local laws have any power?

Well yes and no. This is a complex area, while there is such a significant disparity with the Commonwealth Law. However, the ACT laws attempt to provide a clear and specific legal defence for an adult who possesses small amounts of cannabis in the ACT, but is prosecuted under Commonwealth law and under this federal law, the punishment of possession of marijuana for personal use is a jail term, a maximum of two years in prison.

However, while this is indeed the ‘letter of the law’, for the most part, federal drug enforcement tends to be used to deal with offences that cross borders. Simple possession and small cultivation offences tend to be prosecuted under state and territory law.

Policing the new laws

ACT Police have stated officers have been informed of the new laws, and intend to ‘respect the new territory legislation as best they can,’ focusing less on consumers of cannabis, and more on organised crime pushing large amounts of marijuana and other drugs.

There are also many wondering why the new laws were necessary given that prior to passing this new legislation, the ACT was fairly lenient on anyone caught in possession of 50 grams of marijuana anyway. The ACT was one of the few jurisdictions in Australia which did not make this a criminal offence, which has led some to believe that this legislation is intended to pave the way for cannabis to eventually become commercialised in Canada.

However, the politicians say no. This would require an overhaul of Commonwealth drug laws to make this in any way possible in the ACT.

The law in New South Wales?

While cannabis advocates such as the HEMP Party, based in New South Wales, are hoping that laws around the country will change in line with the new legislation in the ACT, there is no sign of that yet.

In New South Wales, the possession and cultivation of cannabis is a criminal offence, except for medicinal purposes in certain circumstances. Drug possession carries a maximum penalty of two years in prison and / or a $2,200 fine.

However, courts have the discretion not to record a criminal conviction against a person even if he or she pleads guilty to drug possession, or is found guilty. This can be done under a section 10(1)(a) dismissal or a conditional release order without a conviction.

If you are going to court for drug possession, and you wish to plead guilty, there are steps you can take to maximise your chances of avoiding a criminal record. These can be explained to you by an experienced criminal defence lawyer, who can assist you to obtain required materials and present your case in such a way as to give you the best possible chance to walk out of court conviction free.

Drug Arrests and Seizures Do Not Deter Drug Suppliers or Reduce Consumption

The Australian Criminal Intelligence Commission released the Illicit Drug Data report 2017-18 last week. In its sixteenth year, the report provides an overview of the domestic black market, and the efforts of law enforcement to combat drug trafficking transnational crime networks.

The report findings reveal that Australians continue to have a taste for amphetamine-type stimulants, which account for most seizures. Although, locals are also moving on to cocaine, with a record number of arrests carried out for that substance over the 12 month period.

During the financial year 2017-18, there was a record amount of 30.6 tonnes of illicit substances taken from 112,827 drug seizures. And the various police forces around the country made 148,363 drug-related arrests throughout the year.

This means that, on average, authorities made a drug seizure every five minutes, one kilogram of illicit drugs was snatched every seventeen and a half minutes, and someone was arrested in drug-related circumstances every four minutes.

But, if you take a step back from the record amounts, the skyrocketing arrests and the ridiculously high prices, what’s revealed is that despite global prohibition, illicit substances are flooding across Australian borders, consumption is on the rise, and law enforcement efforts are no deterrent.

The opposite effect

Key outcomes of the century-long system of transnational drug controls have been the growth of powerful criminal networks, an abundance of available illicit drugs, an ever-changing variety of substances, increased drug consumption, and the criminalisation of vast numbers of the population.

Of course, these outcomes are not what one would have expected when representatives from multiple nations began meeting in the early years of the 20th century to draft treaties that were, on the face of it, designed to control the consumption of drugs for health reasons.

And since the launch of the war on drugs in the early 1970s, these outcomes have only been exacerbated. The stepping up of law enforcement efforts to curb illegal drug production and trafficking has increased the risks involved, which in turn, has heightened the profits.

Illegality increases profitability

The NSW Crime Commission Annual Report 2015-16 outlines that “the illicit drug trade continues to be the main stream of income for organised crime groups operating in Australia”. And it predicted that due to the steep price of drugs in this country, trafficking from overseas was likely to increase.

The report further puts forth that it’s the international drug cartels that are calling the shots in Australia. The authors posit that organised crime decides what sort of volumes are going to be smuggled into the country, and local consumers take what they make available.

“Commendable law enforcement efforts around the country have resulted in larger seizures and more arrests, but they have had little, if any, effect on the quantities of prohibited drugs available for consumption in Australia,” the report authors admit.

Australian drug historian Dr John Jiggens explained to Sydney Criminal Lawyers back in May that “drug law enforcement acts as a multiplier for the drug market”. The doctor asserts that every dollar spent on drug law enforcement works out to ten dollars in the pockets of drug suppliers.

Dr Jiggens emphasised that the “war on meth” being waged by authorities over the last decade has led to a surge in its availability and profitability. The risks involved hike the price, which then leads international players to focus on the Australian market, because it’s where they get the best profits.

Arrests are no answer

The lack of any real impact being made via drug seizures is nowhere more understood than at the frontline of enforcement. Police officers are increasingly savvy to the fact that with every drug bust they make, more drugs appear from elsewhere to fill the momentary gap in the market.

The 2017 Australia21 report on illegal substances makes thirteen key recommendations regarding drug decriminalisation. And significantly, four of the participants making up the thinktank were former police commissioners and assistant commissioners.

Ex-Australian Federal Police Commissioner Mick Palmer was the vice president of Australia21 at the time of the report release. And today, the former top cop is one of the most vocal advocates for decriminalising the personal possession and use of illegal drugs in this country.

Mr Palmer is well-known for acknowledging that the drug issue is not something that the nation can arrest its way out of. And he’s clear that the majority of harms arising from illicit substances are due to their prohibition.

Cannabis: a case in point

The ACT Legislative Assembly is set to vote on a bill next month that if successful will mean that the personal possession of up to 50 grams of cannabis and its use will be legalised in the capital territory. And Labor MLA Michael Pettersson who introduced the legislation is fairly confident it will pass.

Recreational cannabis is now legal in eleven US states, and the entire nations of Canada and Uruguay. For medicinal purposes, it is these days legal in this country. And underlying these developments is the understanding that the adult use of this drug is relatively harmless.

However, the recent drug report shows that there were 72,381 cannabis arrests across Australia in 2017-18. And of these, 66,296 – or 92 percent – were consumer arrests. And when considering all drug arrests during that year, it turns out 44 percent were arrests of cannabis consumers.

So, this would point to a situation where the majority of the harms related to cannabis are most likely attributable to its illegality, as while its consumption is unlikely to cause any major long-term harm to an adult, being arrested for its possession is.

Legalise it all

Five young Australians died at music festivals in this state last summer. And despite rising calls to implement pill testing at these events, the Berejiklian government is sticking to its reactionary “just say no” to drugs approach.

As Australian Drug Law Reform Foundation president Dr Alex Wodak has pointed out, MDMA – the drug of choice for festivalgoers – is one of the “least risky drugs”. So, if this substance was legally produced – like alcohol – it’s likely deaths caused by it would be greatly reduced if not ceased.

And while the use of other illicit drugs might be riskier, the argument for legalising them is their production could be quality controlled, availability could be governed, treatment for problematic use could be broadened, and the harms associated with the criminal justice system removed.

Indeed, if Australia adopted a policy of legalising and regulating all illicit substances, the power that the transnational criminal networks wield would fade away, the floods of contraband coming over the borders would dry up, and the police would be free to focus on crimes with real victims.

NSW Government Risks More Lives by Rejecting Harm Reduction

By Sonia Hickey and Ugur Nedim

One of our state’s most popular music festivals, Splendour in the Grass has commenced in Byron Bay. The annual festival boasts more than 100 music acts, and attracts around 42,000 people each year.

And yes, along with the revellers, the festival also attracts a heavy police presence and drug detection drugs.

It’s no surprise that police have issued their standard pre-festival warning, that ‘anyone caught with illegal substances will be dealt with accordingly.’

It’s the same old rhetoric, time and again. The enforcement of which is costing young lives.

Young people and drugs

Currently, there are two State Government-led inquiries into the relationship young people have with illegal drugs in New South Wales.

The first, set up in November last year, is specifically examining drug use.

The second is the coronial inquest into the deaths of six young people, Diana Nguyen, Joshua Pham, Joshua Tam, Callum Brosnan, Nathan Tran and Alex Ross-King, all of whom suffered drug-related deaths at music festivals between December 2017 and January 2019.

Harrowing deaths

Tragic revelations are emerging from the coronial inquest – of medical staff inadequately trained and inexperienced in treating drug overdoses, of limited medical resources on site, and ‘disorganised’ emergency care responses, all of which have, in some way, contributed to the deaths of young people whose final hours have been depicted as painful and distressing.

The coronial inquest has heard evidence that over-policing at the FOMO Festival led to one young festival goer taking almost three MDMA pills in panic all at once. He later died as a result. Another’s death was preceded by violent police behaviour, with a witness testifying that an officer punched him in the face as he began to exhibit symptoms of a seizure.

Others have complained about the way police conduct strip searches, intimidating and humiliating patrons – treating them as if they are guilty until proven otherwise.

Pill-testing has been a strong theme. And in recent days, Deputy State Coroner Harriet Grahame has expressed interest in attending Splendour in the Grass herself, to see first-hand a pill testing demonstration by Dr David Caldicott, who has long been an outspoken advocate for the harm minimisation practise.

NSW Government insists on ‘zero-tolerance’

Despite the deaths and a wealth of evidence from overseas that pill-testing saves lives, as well as strong backing for the practise by a range of experts including the Royal Australasian College of Physicians, the Australian Medical Association and former Australian federal police commissioner, the NSW government is clinging to the status quo: The ‘zero- tolerance’ policy which includes deploying hundreds of police officers, sniffer dogs, strip searches and the long arm of the law, and the rejection of harm minimisation.

Our Premier Gladys Berejiklian’s direction to young people is ‘don’t take illegal drugs’.

This is not only completely out of touch with reality, it ignores vital facts that we already know.

Currently, the Australian Capital Territory is the only jurisdiction in Australia which has conducted pill testing trials, and the preliminary findings of these trials overwhelmingly supported evidence from overseas where pill testing is commonplace, and that is, it provides people with information to make a choice, and therefore does save lives.

Australians have one of the highest consumption rates of MDMA (“ecstasy”) in the world. And, sadly, because MDMA is an unregulated drug, Australian ecstasy has also been found to contain the highest amount of unknown and potentially deadly substances, because, on the black market producers and suppliers to fill their tablets with whatever they want.

In a study of ecstasy pills from several countries including the Netherlands, Australia and Canada, Australian tablets were found to contain the highest amount of “unknown ingredients” as well as the highest amount of potentially deadly substances including PMA/PMMA, a highly toxic compound linked to deaths both in Australia and overseas.

These considerations alone, should be case enough for the introduction of pill testing.

It has been proven overseas that the practice does not lead to an increase in use, but actually offers a valuable opportunity for professionals to engage with, and educate drug users. It offers too, a chance for young people who may be feeling ‘peer pressure’ to find a ‘respectable way out’ and ditch the drugs, without fear of losing face with their friends.

For many it is simply maddening that the NSW Government continues to defy the very many positives of pill-testing and the mounting ground-swell of support for it, not just in NSW, but right across Australia, and not just anxious parents or curious young people, but those who believe that there is enough evidence that it will save lives.

Most of us have had enough of playing Russian Roulette with young people’s lives. And, yes, while these young people should each be responsible for the decisions they make, isn’t that exactly what pill testing is about? Ensuring they have the information they need to make an informed choice?

Perhaps there is however, some hope on the horizon. The Government inquiry mentioned earlier which is tasked with looking at drug use across the state, was originally undertaking specific research into the use of crystal methamphetamine, otherwise known as ICE, but earlier this year it’s brief was expanded to include other illicit drugs such as MDMA, which means that it will also look into the benefits of pill testing.

When final recommendations are made from both the coronial inquest and the drug-use inquiry are handed down, it can only be hoped that the Government retains an open mind on the issue of pill testing. Not to do so would be a complete waste of time, resources and taxpayer funds.