Author Archives: Ugur Nedim

About Ugur Nedim
Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Drug Defence Lawyers.
December 10, 2015 Drug Possession, Drugs General
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PM Announces $300m Strategy to Treat Ice Addiction

Many of our previous blogs have focussed on the current ice epidemic in Australia, with the highly addictive drug being blamed for spiralling rates of domestic violence and drug-related criminal activity.

Unfortunately, much of the government’s response to date has focussed on measures which seek to punish ice users, for instance, by setting tough penalties for drug offences, while failing to address the underlying reasons behind drug use.

This is contrary to measures successfully adopted in overseas countries such as Portugal, which aim to treat addiction as a health issue, rather than a crime. These countries have decriminalised drug possession; instead focussing on the rehabilitation of drug users as the primary concern.

Now, there are indications that Australia may be moving towards addressing underlying issues, with Prime Minister Malcolm Turnbull pledging $300 million in funding for the drug treatment sector over the weekend.

From Policing to Prevention

The package will see $300 million in funding distributed to drug treatment services across four years to curb drug-related activity.

Announcing the package on Sunday, the Prime Minister said that strong law enforcement is ‘absolutely necessary’ in winning the war against ice use – but conceded that ‘we cannot arrest our way to success.’

$241.5 million of the total package will be invested in the government’s Primary Health Networks, which include hospitals and other community health services. These networks will be tasked with developing tailored drug and alcohol treatment programs for particular regions.

A further $24.9 million is pledged to help families and communities respond to ice, while $18.8 million will be allocated to drug treatment research, including the establishment of a Centre for Clinical Excellence for Emerging Drugs of Concern. $13 million will be spent on new Medical Benefits Schedule items to increase access to treatment.

Rural and regional areas – which have long been dubbed ice ‘hotspots’ but lack access to treatment services – will benefit from a significant injection in funding, and indigenous-specific treatment services will also be prioritised.

The announcement follows the government’s promise of a revolutionary new mental health care system, a system which is in dire need of greater resources. The latest announcement signals a greater recognition of the link between mental health and drug abuse.

Minister for Rural Health Fiona Nash has discussed how the two systems would be integrated, saying:

‘Given the close correlation between mental health and drug abuse, we have closely aligned delivery of drug and alcohol treatment services with the delivery of mental health packages through PHNs.’

A Fresh Approach

Speaking to the media, Mr Turnbull announced that his government would be tackling drug addiction in a very different way to his predecessors.

He acknowledged that ‘the responsibility for tackling this very complex problem can’t be left to the police alone,’ and stated that ‘medical and healthcare professionals, who are closest to the…people in need, are best able to determine how the money is spent.’

The announcement has been warmly welcomed by Australian Drug Foundation Chief Executive John Rogerson, who said that a move away from the ‘one-dimensional approach to dealing with alcohol and drugs’ was much needed.
Mr Rogerson told the media:

‘A heavy emphasis on law enforcement turned into something which is integrate, which has strong focus on treatment, on prevention and community…This is the major shift which needs to happen in Australia…we have got to get away from treating it as a criminal justice issue and treating it as a health issue.’

The government’s fresh approach has also been welcomed by Former Chief of Victoria Police, Ken Lay, who prepared a report urging governments to focus efforts on treating, rather than punishing, drug users.

He has previously criticised the government’s handling of the ice scourge, saying:

‘Ice has been on the scene for over a decade and we’ve had a really strong law enforcement approach and it hasn’t resolved the problem. The time’s right now to look at the other options…For social problems like these, law enforcement isn’t the answer. Unless you get into the primary prevention end, unless you stop the problem occurring you simply won’t arrest your way out of this.’

It is hoped that this new approach marks a step in the right direction when it comes to treating drug addiction – and that the future will see an increased focus on treating our ice problem as a health concern, rather than a criminal law problem.

December 05, 2015 Drug Importation
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New Evidence that War on Drugs is Failing

For years, we have endured successive political leaders telling us that the only way to tackle drug use is to outlaw drugs altogether, and to impose harsh penalties on those who dare to break the law.

As a result, Australia’s drug laws have remained largely unchanged for decades, despite research showing that prohibition and punishment are not the best approach.

The latest statistics published by the Victorian Crime Statistics Agency (VCSA) provide further evidence that the war on drugs simply is not working; suggesting that the possession and use of drugs has not declines over the last decade – despite police and other agencies being equipped with greater resources.

Statistics Turn the Spotlight on Drug Crime

The VSCA utilised various data, including police records, between 2005 and 2015 to track the rates of drug use and possession in metropolitan, regional and rural Victoria, and to ascertain how the characteristics of offenders and crime rates differed across various geographical regions.

The statistics suggest that drug possession offences across the state increased from a rate of around 150 incidents per 100,000 people, to around 275 per 100,000 over that period of time. Drug possession was more prolific in regional areas, where it increased from around 175 incidents per 100,000, to over 350.

The study found that the characteristics of drug users has also changed over time; for instance, the percentage of female offenders has increased from 18% in 2011 to over 22% in 2015. Offenders located within metropolitan regions were more likely to be aged between 20 and 29 at the time of their first offence, while those in country areas were more likely to be aged over 40.

Why is the War on Drugs Failing?

As outlined in several previous blogs, the increase in police resources has failed to reduce the use of illicit drugs in Australian communities, particularly rural areas and at targeted events like music festivals. It appears that users remain undeterred by the threat of police intervention and heavy penalties, even when they know that police and sniffer dogs will be present.

Given the trend, it seems futile for Australian taxpayers to plough hundreds of millions of dollars every year into detecting and prosecuting minor drug offences; which have clogged up our courts and lined the pockets of criminal defence lawyers, without reducing the rates of drug use.

As previously discussed, treating drug use as a health problem – rather than as a crime – has been highly successful in encouraging users to get help in several overseas countries, including Portugal and Norway, and in reducing the number of deaths from drug overdoses, lowering rates of drug-associated crime and helping habitual users to overcome their addictions.

In 2014, a working group presented a number of submissions to this effect to the United Nations Office on Drugs and Crime, noting that drug abuse was a disease and should therefore be addressed by public health bodies rather than the criminal justice system.

Dr. Nora Volkow, who headed the group, observed that:

‘No one would imagine that enforcing tough legal sanctions on people with a chronic condition such as heart disease could help address that illness or its causes, or help prevent it in others. Criminal justice is clearly not the way forward in dealing with substance use disorders either; putting people with addictions in prison and perpetuating various legal barriers to seeking or providing substance abuse treatment are only hindrances.’

The United Nations is due to hold a special session on international drug issues next year. It hopes that member states will heed the advice provided by Dr. Volkow’s group amongst others, and take the first steps towards reclassifying drug use as a health issue, rather than criminally prosecuting users and alienating them from the community.

December 03, 2015 Drug Possession, Drug Supply
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I’m not guilty - I was holding the drugs for the owner!

Being charged with drug supply can be scary – but you may not have known that it is a defence if you were simply holding the drugs for another person.

One person who found herself in this position was 38 year old Tracey Anne Frazer.

R v Frazer (2002)

Police found Tracey Anne Frazer in possession of one capsule of methyl amphetamine while she was in the car with her boyfriend, Mr Rindfleish, driving from Lithgow to Sydney.

She claimed that her boyfriend had handed her the drugs when they stopped to buy petrol, and that she intended to return the capsule when he got back. But Ms Frazer fell asleep in the car, and forgot to return it.

The next thing she remembers is being woken up by Rindfleish, who said that the police were following them. Police pulled them over and searched the car. Frazer admitted that she was carrying a capsule in her trousers.

Police charged her with ‘drug supply’ on the basis that she intended to return the drugs to her boyfriend. At trial, Ms Frazer once again admitted to being in possession of drugs, but pleaded ‘not guilty’ to the supply charge.

Initial trial

During the trial, the jury asked the judge to outline the definition of supply; but the judge failed to outline the law when it comes to minding drugs for someone else. Despite Ms Frazer’s criminal defence barrister correctly advising the judge about the law, he failed to tell the jury that if they were satisfied that Ms Frazer was simply minding the drugs for her boyfriend, they must find her not guilty of drug supply.

Accordingly, Ms Frazer was convicted of the drug supply charge.

Appeal

On appeal, the NSW Criminal Court of Appeal (NSWCCA) found that the trial judge’s failure to explain the law when it comes to holding drugs for someone else meant there was a potential miscarriage of justice.

The NSWCCA found that the trial judge should have said to the jury that:

“if they [the jury] accept on the balance of probabilities the evidence that Rindfleish gave her the [drugs] temporarily and if it was always intended that it would be given back at some point, then they should acquit.”

Ms Frazer’s conviction for drug supply was quashed on that basis, although she was still guilty of drug possession.

What is supply when it comes to drugs?

Supply is defined by Section 3 of the Drug Misuse and Trafficking Act as selling, distributing, agreeing to supply, offering to supply, keeping or having in possession to supply, forwarding, sending, delivering, or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of the above.

Although this is a very broad definition, courts have found time and again that holding drugs for someone else is not ‘possession for supply’. This is the case whether a person is holding one pill for someone else, or 10,000.

Where applicable, this rule is an extremely useful way to defend serious drug supply charges – some of which may carry a maximum penalty of life imprisonment – and to have the charges reduced to drug possession only – a far less serious charge which carries a maximum penalty of 2 years imprisonment.

Deemed Supply

There was evidence in the case of Frazer that she intended to pass the drugs to someone else, namely her boyfriend.

But did you know that you can be charged with drug supply even if there is no evidence at all that you intended to give, sell or return drugs to another person?

The law says that a person who is found in possession of more than the ‘trafficable quantity’ of drugs can be charged with ‘deemed supply’; even if there is no evidence of actual supply, or of any intention to supply.

The trafficable quantity of MDMA (ecstacy) is 0.75 grams, which can be as few as 2 or 3 tablets. The quantity for amphetamines, cocaine and heroin is 3 grams, and the quantity for cannabis is 300 grams.

If you are charged with deemed supply, you (or your lawyer) may be able to argue that you possessed the drugs for a purpose other than supply. Your lawyer may in fact be able to have your deemed supply charge dropped or thrown out of court for a range of reasons, including:

  • That the drugs were for personal use only;
  • That you did not have knowledge of the presence of the drugs;
  • That you did not have ‘exclusive possession’ of the drugs because they were located in the common area, eg the living room or kitchen of a shared house; or
  • That you were holding the drugs for someone else.

If you are facing drug charges in Sydney, it is important to speak to experienced criminal lawyers with the specialist knowledge to fight and win drug cases.

November 29, 2015 Drug Possession, Drug Supply
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Heavy Police Presence Fails to Deter Drug Use at Stereosonic

A 22-year-old woman has died, and a 25-year-old woman is in a critical condition at Concord Hospital, after attending yesterday’s Stereosonic music festival in Sydney.

48,000 revellers flocked to Sydney Olympic Park for the much-anticipated event, partying to the beats of dance artists like Armin Van, Peking Duk, Axwell and Major Lazer.

A major drug detection operation once again failed to deter patrons from bringing drugs to the festival, with 69 people charged with drug possession and supply, and a further 23 issued with cannabis cautions. More are expected to be charged today.

Assistant Police Commissioner Mennilli described the number of people charged as: ‘alarming and disappointing, especially after we warned revellers about the dangers of drug use’.

Patrons took to social media during the festival, describing it as a ‘drug fuelled festival of fu%kery’ and stating ‘there are many creative ways to get drugs into festivals. Everyone does it’. One person lamented that ‘During Woodstock days there was a purpose to explore your inner self. Help your neighbour love peace and so on. Now it’s how wasted is not enough for Monday morning. SAD.’

The posts suggest that major drug detection operations have failed to deter patrons from bringing drugs to music festivals; and if the 22-year-old’s tragic death is indeed drug related, the incident could bolster calls for changes to drug policies – including the introduction of European-style pill testing rooms to ensure that drugs at festivals are free from potentially deadly fillers.

Sniff Off Responds

‘Sniff Off’ is a Facebook page of Greens MP David Shoebridge, who has been outspoken about the ineffectiveness of sniffer dog operations in deterring drug use and preventing deaths.

The page responded to yesterday’s events by posting:

‘This is tragic. The drug dog program is an expensive exercise for show that did nothing to prevent this woman’s death. If the millions spent on this program were redirected to actual harm prevention measures like pill testing kits, amnesty bins, and better healthcare at the festival this might have been avoided.’

It is a view shared by heath care professionals, experts on drug policy both here and abroad, families of those killed after ‘loading up’ on drugs, and members of the general public.

The Dangers of ‘Loading Up’ and Deadly Fillers 

The latest death is a painful reminder of the dangers of ‘loading up’ – or taking multiple pills at once to avoid detection by sniffer dogs. A number of highly-publicised deaths at music festivals in recent years has been attributed to the practice.

In 2009, 17-year-old Gemma Thoms died at the Perth leg of the Big Day Out festival. The Coroners Court heard that she had consumed three ecstasy pills in quick succession as she was worried about being caught by sniffer dogs.

Shortly afterwards, she began shaking, before collapsing on the floor and convulsing. She was rushed to hospital and pronounced dead the following day.

And in 2013, 23-year-old James Munro died at the Defqon.1 festival in Sydney after also quickly consuming three ecstasy pills. His father, Stephen Munro, told the media that his son had taken the pills after becoming aware of the strong police presence at the gates.

Drug experts have also warned of the hidden dangers associated with the use of sniffer dogs.

Lucy Burns from the National Alcohol and Drug Research Centre says that many festivalgoers feel coerced into loading up to avoid detection by sniffer dogs:

‘People might go to a festival and see there’s a lot of security dogs there…They may be including to get rid of any drugs they’ve got on them, they may ingest them…Of course that does come with problems because once you’ve got it in your system it’s very hard to get it out.’

Another danger associated with our current drug policy is the simple fact that users do not know what is in the drugs that are sold to them.

The unregulated black market means that drug suppliers can determine the purity and ingredients contained in drugs such as ecstasy – and often cut or lace pills with dangerous and toxic substances to save money.

This essentially means that users gamble with their lives every time they consume drugs.

Many have suggested that this issue could be resolved by decriminalising drugs and leaving it up to governments to regulate what goes into them in a bid to prevent further deaths.

The European Approach

Another initiative which has already proven instrumental in preventing overdoses is ‘pill testing.’

In Europe, many music festivals and rave clubs provide patrons with free drug testing services which allow users to ascertain exactly what is in their drugs before they consume them. Results are provided in as little as 30 minutes, and police who patrol the events allow users to have their drugs tested without fear of arrest.

In some instances, trained medical professionals and experts are on hand to provide patrons with advice about drug use.

These initiatives have proven to reduce the risk of overdose, as those who discover that their drugs contain potentially deadly substances generally refrain from consuming them.

However, governments and police seem intent on persisting with the failed current approach, which will almost certainly result in further unnecessary tragedies.

November 28, 2015 Drug Possession, Drug Supply
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Man Stashes Drugs for Later Use at Music Festival

Festivalgoers are currently enjoying the annual Stereosonic festival, with Sydney Olympic Park hosting a stellar line up of dance artists including Armin Van Buuren, Axwell, Peking Duk and Major Lazer.

At last year’s festival, a record 221 people were charged with drug offences after police conducted searches on around 830 of the 81,000 ticketholders. The vast majority of people were allegedly detected attempting to bring drugs into the festival at the gates – but 38 were allegedly found with drugs on public transport en route to the festival.

This year’s attendees have attempted to get crafty in their bid to smuggle drugs into the festival – with two Sydney men arrested for attempting to hide drugs around Sydney Olympic Park days before the festival is due to kick off.

Desperate Measures for Drugs

According to the media, police have been called to Sydney Olympic Park twice in the past few weeks following reports of people attempting to conceal drugs within the venue in the lead up to Stereosonic.

On the 20th of November, security guards allegedly observed 21-year-old Zane Raffie drilling a hole into a building in order to store drugs.

Mr Raffie fled when confronted by security guards, but police reported that he was attempting to ‘install something that could conceal drugs.’ They later attended Raffie’shome in Green Valley and located 10 capsules of MDMA, as well as a prohibited plant. He was charged with reckless damage, trespass, drug possession, and possession of a prohibited plant, and is due to appear at Burwood Local Court on the 2nd of February.

Just days later, on the 24th of November, another man was found ‘acting suspiciously’ around the venue. Police were called again and spoke to 22-year-old Ali Ghoneim, before searching his car and locating 95 ecstasy pills. He has been issued with a Court Attendance Notice to appear in Burwood Local Court on the 15th of December for drug supply.

Both men have been banned from Sydney Olympic Park and warned that they will be arrested if they show up today.

Security Increased After 2014 Festival

According to police, the level of security around the venue was increased this year in the lead up to Stereosonic after several people were caught trying to hide drugs in the area.
A police spokesperson warned festivalgoers:

‘We know this happens so we’ve been regularly sweeping the area with drugs dogs over the last few days to make sure we find stuff before the park is fully locked down…At the end of the day, if you’re planning to take drugs in, you’ll get caught. If you’ve already secreted drugs, we’ve already found them so don’t bother turning up.’

Specialist Drug Lawyers

If you’ve been issued with a Court Attendance Notice for a drug offence at Stereosonic, our specialist drug defence lawyers can help.

Our lawyers represent clients in drug possession and drug supply cases every day, and have done so for many years.

We also offer competitive ‘fixed fees’ for a range of drug cases, so you will know exactly how much your matter is going to cost upfront.

Call us today for a free first appointment.

November 26, 2015 Drug Supply, Drugs General
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Doctor Acid: Treating Patients with LSD

LSD, commonly known as ‘acid,’ is a hallucinogenic drug which causes users to experience distorted images, sounds and sensations.

Nowadays, it is enjoyed by those in search of a psychedelic experience – but when it was first synthesised in 1938 by Swiss scientist Albert Hoffman, it was hoped that it could be used as a treatment for psychiatric disorders. Despite its promising beginning, LSD was soon outlawed around the world due to concerns about an emerging ‘black market’ for the drug.

But one Swiss psychiatrist is determined to carry on Hoffman’s legacy by incorporating LSD into his psychotherapy practice.

Could LSD Have Medical Benefits?

Dr Peter Gasser is the only doctor in the world who is legally authorised to treat patients using LSD.

He was one of five doctors granted special permission from the Swiss Federal Office for Public Health in 1988 to research the use of LSD in treating psychiatric disorders; but the Swiss government banned the drug again in 1993. Despite this setback, Dr Gasser approached the Swiss Ministry of Health in 2007 for permission to conduct a study into the effects of the drug on patients suffering from terminal illnesses such as cancer.

According to Dr Gasser, LSD is particularly beneficial in treating ‘end of life anxiety,’ which refers to anxiety and other mental stressors experienced by those who suffer from terminal and life-threatening illnesses.

His 2007 study – which was the first controlled trial of LSD in the 21st century – involved prescribing moderate doses of LSD to 12 terminally-ill patients during two individual therapy sessions.

After taking the drug, each patient would spend time sleeping on a couch in Dr Gasser’s office while being observed. In some cases, the patients would discuss their emotional journey with the doctor, who would assist them in overcoming their fear of death.

Dr Gasser found that the drug provoked a ‘strong emotional experience’ which allowed patients to understand their existence in a broader context. The eight patients who received full doses of the drug reported a 20% improvement in their anxiety levels. Many patients left feeling ‘very satisfied’ with their sessions, and even requested further treatment.

In a recent interview, Dr Gasser explained:

‘Our concept was if someone gets a life-threatening disease, he’s really confronted with existential issues, which also may cause anxiety. To have this deep encounter with oneself—which is what an LSD experience can be—can help someone deal with these questions about life. There’s a stronger possibility of them being relaxed and accepting, which can make the anxiety lower when talking about death.’

Where to From Here?

Unfortunately, Dr Gasser’s 2007 trial was considered too small to be conclusive; but following its success, he was granted a special ‘compassion use’ permit by the Swiss government which allows him to continue treating patients using LSD.

Dr Gasser’s special permit does not confine him to treating cancer patients – but allows him to treat anyone using LSD provided he has a ‘good theory’ about how it could help.

One current patient had been severely sexually abused as a child and suffered dissociation as a result, but Dr Gasser prescribed her LSD under the belief that it could assist to have greater control over her dissociation. The patient reported benefits after taking just two treatments of the drug.

Dr Gasser is currently treating 7 patients with LSD. In each case, he carefully assesses the appropriate dosage, as well as the frequency of treatment.

He hopes that in light of his success in treating anxiety and other disorders, other governments will one day allow more doctors to treat their patients with LSD.

November 22, 2015 Drug Driving
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Drivers Test Positive for Drugs They’ve Never Used

Imagine this: You are stopped by police for a random roadside drug test. You lick the strip and are told to wait a few minutes for the results. Moments later, the officer returns and says you have tested positive for drugs.

The only problem is you’ve never taken illegal drugs in your life!

It might sound implausible – but as one Sydney man recently discovered, it can and does occur.

The Plight of an Innocent Man

Steve Hunt was driving home from work when pulled over for a roadside drug test.

As someone who does not take drugs, Steve happily submitted to the test.

But the law abiding citizen got a rude shock when the officer told him there was ‘a problem.’

The officer informed Steve that he had tested positive for methylamphetamine, then placed him under arrest and took him to a nearby drug van. Despite a secondary test returning a negative result, police decided to send Steve’s sample to NSW Health for further testing, where a positive result was returned two weeks later.

Adamant that there had been a mistake, Steve asked his lawyers to have the sample retested. Two further tests were conducted at the same NSW Health lab, each returning a negative result!

Despite this, police refused to drop the case and sent it to court. At court, the police prosecutor offered ‘no evidence’ – knowing that Steve would certainly win the case.

Accordingly, the case was dismissed in court.

It was fortunate that Steve decided to fight the case – as he faced a maximum penalty of $1,100 and six months off the road, as well as a criminal conviction for drug driving if he had simply pleaded guilty as many people do.

But his ordeal still cost him $5,000 in legal fees – money which he was forced to draw out of his mortgage to prove his innocence. Perhaps his lawyers should have applied for his legal costs to be paid by police, but for some unknown reason it does not appear that an application for costs was made.

Other Cases

Since Mr Hunt’s case made the headlines, a number of other drivers have come forward saying that they had also tested positive for drugs which they had never taken.

Some had similar experiences to Mr Hunt – where the initial test came back positive, and subsequent tests produced negative results.

In fact, the very first person in the world to return a positive reading for a drug test was nearly convicted of drug driving on the basis of a false reading.

39-year-old John De Jong returned a positive result for methylamphetamine when he submitted to a lick test in Yarraville, near Melbourne, way back in 2004.

Mr De Jong denied ever using the substance and was taken to a drug van for a subsequent test, which indicated a positive result for cannabis.

According to Mr De Jong, he had last used cannabis a month before – meaning that it should not have been detected in a roadside lick test, which can generally only detect cannabis that has been consumed 4-6 hours earlier.

Shocked by the reading, Mr De Jong consulted an independent pathologist, who released a report showing that there could not have been cannabis in his system at the time of driving. As a result, police did not proceed with the charges.

As it was the first time roadside lick tests had been used anywhere in the world, police had arranged for the media to be present at the scene. Mr De Jong therefore found his picture splashed across the news to his embarrassment, and the media presence backfired for police.

Mr De Jong later sued police for defamation, and the matter was settled out of court for an undisclosed sum. Police were also forced to issue a ‘statement of regret’ to Mr De Jong for the error.

Mr De Jong’s case may have been the first – but it’s certainly not the last case of a driver being charged with drug driving on the basis of a false positive.

In fact, a 2006 study found that ‘no device was found to be reliable enough for roadside screening of drivers,’ and that ‘lick’ test devices ‘fail[ed] to meet the 95 per cent accuracy level originally demanded.’

Subsequent investigations have revealed that up to one-third of all drivers who initially test positive during roadside lick tests return negative readings when re-tested in drug vans.

In 2010, Victoria Police admitted that 62 out of 1618 people who tested positive for drug driving had been incorrectly charged. And in NSW, 72 out of 174 drivers tested in a Northern Rivers operation returned ‘false positives.’

Despite these serious issues, NSW Police have vowed to expand their drug testing operations, with plans to conduct 100,000 lick tests each year by 2017.

November 19, 2015 Drug Cultivation, Drug Possession
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Illegally Obtained Evidence Ruled Admissible in Drug Trial

A person’s home may be their castle, but this doesn’t always mean it’s safe from the prying eyes of the law. While courts will often exclude improperly or illegally obtained evidence, this is not always the case.

Police Officer Finds Drugs after Wandering Outside Search Area

Mark Gallagher and Lynne Maree Burridge lived in neighbouring rural properties in NSW. In March 2012, police obtained a warrant to conduct a firearms audit at Gallagher’s house.

The warrant was in relation to a man named Paul Thompson, who was in the process of selling the house to Gallagher.

But when a police officer arrived, he couldn’t see anyone around the house. He thought he saw movement near a dam, which was about 50 metres away, so he began walking in that direction but in doing so trespassed onto Burridge’s neighbouring property.

When the officer got to the dam, he didn’t see or hear anyone. He then started walking back to the car via a pathway running alongside the dam, when he caught sight of a plastic irrigation pipe and went to investigate. He then came across a caged area on Burridge’s property containing over 150 cannabis plants, along with bags of cannabis leaf and seed.

The officer then returned to his car – but he had already overstepped his lawful authority by trespassing onto Burridge’s property.

As you can imagine, an investigation and drug charges quickly followed. The cannabis plants were on the property of Burridge but Gallagher had allegedly established and maintained the cultivation, so both were facing drug cultivation charges.

The central issue was whether the fact that the police officer trespassed onto Burridge’s property – where the drugs were found – was enough for the evidence of drugs to be excluded from court.

This was vital to the defence of Gallagher and Burridge, because courts can refuse illegally or improperly obtained evidence from the courtroom.

At trial, the Judge excluded the evidence on the basis that the search was unlawful, as the police officer was trespassing when he discovered the cannabis plants.

Without this crucial evidence, it was all over for the prosecution, so they appealed to the NSW Court of Criminal Appeal (NSWCCA).

Unfortunately for Gallagher and Burridge, the NSWCCA did not come to the same conclusion as the trial Judge. The three Justices agreed that the search was illegal, but found that the evidence should have been allowed before the jury anyway.

Admissibility of Improperly Obtained Evidence

Under section 138 of the Evidence Act, illegally or improperly obtained evidence cannot be used in court unless “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

In deciding whether or not to admit evidence, the court must take into account:

  • The probative value of the evidence;
  • The importance of the evidence;
  • The nature of the relevant offence;
  • The gravity of the impropriety or contravention;
  • Whether the impropriety was deliberate or reckless;
  • Whether the impropriety or contravention was deliberate or reckless;
  • Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention (such as internal discipline against a police officer); and
  • The difficulty of obtaining the evidence without impropriety or contravention of an Australian law.

The NSWCCA found that the contravention of the police officer was accidental and careless rather than intentional, and that the desirability of admitting the evidence outweighed the undesirability of allowing evidence obtained in that way.

The prosecution’s appeal was allowed on that basis, and Gallagher and Burridge must once again face trial – but, this time, the evidence of the cannabis will be admitted before the jury.

When Will Courts Exclude Illegal Evidence?

The best chance of excluding evidence is if the offence is relatively trivial – for example, drug possession or small drug supply – and the illegality is substantial or deliberate. Part of the rationale of excluding illegally or improperly obtained evidence is to take away any incentive for police to act out of line. Ensuring that this kind of evidence cannot be used is therefore intended to deter police from collecting it improperly or illegally in the first place.

If you are facing drug charges, getting help from experienced lawyers who specialises in drug cases will give you the highest chance of having the charges against you dropped or thrown out of court if you wish to plead not guilty, or achieving the most lenient outcome if you wish to plead guilty.

November 15, 2015 Drugs General
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Ketamine Could Soon Be Used to Treat Depression

Around 1 million Australians suffer from depression at any one time.

The debilitating mental health condition is characterised by prolonged periods of ‘feeling low,’ a lack of energy and irritability, and a loss of interest in activities which are usually enjoyable. Chronic sufferers can remain bed ridden for prolonged periods of time and be unable to perform basic day-to-day activities.

While there are a range of medications available to treat the condition, the Black Dog Institute estimates that around a third of sufferers are unresponsive to anti-depressants.

The Institute hopes that a proposed new study will help sufferers in the future.

The Federal Government has recently announced a grant of $2 million to research the effectiveness of ketamine in treating depression.

Ketamine, also known as ‘Special K,’ is an anaesthetic and animal tranquiliser that is also used recreationally as a hallucinogenic drug. It can cause users to feel euphoric, experience feelings of physical detachment, confusion and clumsiness, as well as causing increased heart rate, slurred speech, anxiety and blurred vision.

It is currently classified as a Schedule 8 ‘drug of addiction’ under the NSW Poisons List – meaning that it can only be obtained with a valid prescription from a doctor. Using ketamine without a valid prescription can result in charges for drug possession, or for self-administration of prohibited drugs.

However, current research suggests that, used properly, ketamine could have positive short-term benefits for those who suffer from depression.

The Trial

Expected to commence in April 2016, the trial proposes to study the effects of ketamine on 200 participants who have been unresponsive to traditional anti-depressant medications. It will compare those effects against a control group who will be given a placebo.

The study will be headed by Professor Colleen Loo, a clinical and research psychiatrist based at St George Hospital and the Black Dog Institute, and will be run in joint partnership with the University of New South Wales.

It will aim to investigate whether ketamine is an effective and safe long-term treatment for depression. According to Professor Loo, previous studies suggest that a single treatment of the drug can ease the symptoms of depression in just a few hours, with the effects lasting up to several days.

Past Controversies

The use of ketamine as a treatment for depression has been the subject of controversy in the past, with an ABC investigation discovering that one business had been selling ‘take home kits’ containing up to 10 doses of ketamine.

Aura Medical, a commercial clinic based in Sydney and Melbourne, came under fire earlier this year after it was found to be selling the DIY treatment kits, and showing clients how to inject the drug without medical supervision. The clinic was selling the packages for up to $1,200 for a four week course of eight injections.

Those attending the clinic told the media that they were never informed that the substance was not approved by the Therapeutic Goods Administration, and were not offered any other treatment options or professional support. Patients were often given the drug after a short consultation, and did not require confirmation from their GP.

After finishing the initial course, the clinic told users that they would require further courses as it would be dangerous to stop the treatment suddenly. The clinic ended up pocketing tens of thousands of dollars from vulnerable people who were desperate for a solution to their condition.

The Black Dog Institute is concerned that such schemes could undermine their research, and has issued a statement advising people not to attend similar ketamine clinics, as the long-term effects of ketamine are not yet known.

The Insitute has also expressed concerns that giving users free reign over the drug without professional support could increase the risk of self-harm or even suicide.

Speaking to the media, Professor Loo said:

‘It’s very important… [that] this kind of treatment is done in a very carefully monitored clinical context with experts in psychiatry and mental health. If people try to bypass that and prematurely use it clinically, and then maybe find people are having terrible side effects…that could derail the whole process of developing what could actually be a useful drug.’

If the drug is proven to be effective, it could ultimately be approved as an anti-depressant by the Therapeutic Goods Administration, with users taking the drug in close consultation with medical professionals.

November 12, 2015 Drug Possession
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Ireland to Decriminalise Cannabis, Cocaine and Heroin

In a move that has been welcomed by drug treatment professionals around the world, Ireland has announced that it will decriminalise the possession of small quantities of cocaine, cannabis and heroin which are intended for personal use.

The announcement was made by Minister of State for the National Drugs Strategy, Aodhán Ó Ríordáin (above), at the London School of Economics earlier this week. Speaking to the press, Mr Ó Ríordáin explained his reasons for introducing the radical new laws:

‘Too often those with drug problems suffer from stigma, due to a lack of understanding or public education about the nature of addiction. This stigma can be compounded for those who end up with a criminal record due to possession of drugs for their own use.’

Mr Ó Ríordáin also announced plans to open supervised injecting centres in major Irish cities including Dublin, Cork, Galway and Limerick to give users a safe, risk-free environment to use drugs.

A Progressive Approach

The news is reflective of Ireland’s world-leading, harm minimisation approach to drugs.

Mr Ó Ríordáin says that removing the stigma associated with drug use and supporting users through an ‘integrated approach to treatment and rehabilitation based on a continuum of care with clearly defined referral pathways’ is far better than making criminals out of those who possess small quantities of drugs.

His philosophy is backed by extensive research which shows that punishing users rather than helping them is counter-productive – creating a barrier to those who want to get help.

In recent years, a number of overseas countries such as Portugal have accepted that drug addiction is a health issue, rather than a legal one, and implemented policies accordingly.

As discussed in a previous blog, Portugal made the radical move to decriminalise all drugs in 2001. Since then, users caught with small quantities of drugs have been referred to a specialist panel comprised of a doctor, lawyer and social worker, which assesses the person’s situation and refers them for appropriate treatment.

14 years later, research indicates that the approach has paid dividends – with statistics showing that there have been less overdoses and hospitalisations, and an overall decrease in property crimes linked to addiction since the legislation was introduced.

It is hoped that these results will be replicated in Ireland once the legislation comes into force next year.

Mexico Moves to Decriminalise Marijuana

Meanwhile, Mexico has also taken a step towards decriminalisation following a landmark Supreme Court ruling last week.

A lawsuit was initiated by four activists from the Mexican Society for Responsible and Tolerant Personal Use, who sought permission from the government to grow cannabis plants for recreational use.

Last week, four out of five Justices of Mexico’s Supreme Court ruled in their favour, finding it unconstitutional to prevent the group from growing, consuming or possessing marijuana.

However, the ruling currently only applies to the four plaintiffs – meaning that it remains illegal for the time being for others to grow and smoke their own marijuana.

Mexican law requires the Supreme Court to rule favourably another four times before the law can be changed for good, and many have indicated that they will also commence legal action in order to force a change.

UN Backs Decriminalisation

Moves towards decriminalisation are backed by the United Nations, which recently leaked a paper recommending that governments around the world decriminalise drug use and possession.

According to Virgin CEO Richard Branson, an honorary member of the Drug Policy Alliance, a copy of the unreleased document was given to him, to other leading drug advocates and also to the BBC.

However, the statement has reportedly been withdrawn after the United States – a country well known for its harsh drug policies – expressed concerns about the recommendations.

Despite this, drug policy advocates have viewed the statement as a promising indicator of things to come, with Executive Director of the Drug Policy Alliance Ethan Nadelmann stating:

‘On the one hand it’s promising that such a powerful statement strongly affirming the need to decriminalize drug use and possession made it this far in the UN process – that in itself represents a dramatic evolution from previous decades when any talk of decriminalization was studiously suppressed. It reflects both growing support for decriminalization in Europe and Latin America as well as the insistence of UN health, development and human rights agencies that drug control policies adhere to international conventions in those areas as well.’

The UN previously expressed support for a treatment-focussed approach to tackling drug use in its 2015 World Drug Report, in which it stated:

‘For over four decades scientific research has shown that effective treatment for drug-use disorders has helped drug dependent individuals to halt their consumption, prevent relapse, reduce their involvement in crime, change other dysfunctional behaviour and make a positive contribution to their family and community.’

It is hoped that the current trend towards rehabilitation will ultimately lead to drug use being treated as a medical issue rather than a criminal offence, and that some of the billions of dollars wasted in waging the ‘war on drugs’ will be redirected towards education, treatment and social support.