Category Archives:Drug Supply

Bumper Summer for Music Festivals, but Still No Pill-Testing in NSW

The summer season of music festivals about to start across NSW, and the state continues to attract big name acts and high profile events like the Rolling Loud Hip Hop Festival, which is expected to bring thousands of fans to Sydney early next year.

In the meantime, despite acknowledging that music festivals are a strong part of Australian culture, and benefitting from their money-making potential, the State Government continues to beef up police numbers and resources including sniffer dogs to stop drug use. And there is still no sign of pill testing.

Instead, two months ago, the NSW State Government announced a range of new initiatives for combatting drug use at music festivals including on-the-spot fines of up to $500 for drug possession and tougher penalties for dealers who supply drugs to people who die.

At this point the Government says it us working through other issues with the legislation such as the penalties for someone who gives drugs to a friend.

‘Throwing the book’ at dealers won’t help

Many pill-testing advocates are angry that the plan simply ‘throws the book’ at dealers and does nothing address the idea of reducing risk and minimising harm for those people who will take drugs.

This is because when the Government had an opportunity to listen to pill-testing experts it didn’t do so.

After the deaths of two people at Defqon1late last year, the New South Wales Government went into ‘damage control’ and assembled a panel of experts briefed with the task of making music festivals ‘safer’. At the time, many hoped that it heralded a change in mood by the state politicians, but Premier Gladys Berejiklian swiftly made it clear that the panel would not be considering the merits of pill testing because the Government didn’t support it.

In recent weeks NSW Police Commissioner Mick Fuller has further inflamed the situation by saying that the belief that pill-testing was going to save lives is a ‘myth’.

But in fact, results from Australia’s first sanctioned pill-testing trial at the Groovin the Moo Festival in Canberra earlier this year proved that not only could free pill testing services actually be provided without encouraging more people to take illicit substances, but it prompted some to throw their drugs away.

Of the 128 festivalgoers who had their drugs tested on the spot by laboratory-grade equipment, five people tossed theirs into the amnesty bins provided after receiving the test results provided by the medical staff onsite.

Pill-testing can save lives

Drugs belonging to two revellers were found to contain N-Ethylpentylone, an often lethal stimulant, responsible for mass overdoses in Europe potentially saving these two individuals lives.

Pill testing has been available in several European countries including the Netherlands, Switzerland, Austria, Belgium, Germany, Spain and France for some time, and was more recently introduced in the UK. And the results show that not only does pill-testing have the ability to save lives, it has positive effect that goes beyond saving lives.

Outcomes of pill testing over seas

The experience in some parts of Europe has been that over time, pill-testing has actually changed the black market in positive ways – potentially lethal ingredients which were the subject of warning campaigns were seen to leave the market.

Specific research from Austria shows that 50% of people who had their drugs tested said the results affected their consumption choices. Two-thirds said they wouldn’t consume the drug and would warn friends in cases where there were negative results.

In the UK, two-thirds of users consulted by not-for-profit testing service The Loop said they would not take drugs found to contain harmful substances. More than half said test results had affected their consumption choices and many said they intended to dispose of their drugs or take less of them.

Another less measurable benefit is that pill-testing booths provide an opportunity to reach an otherwise unreachable, but high-risk group of recreational drug users and provide both communication and education about their lifestyle choices as well as information about drug support services. According to testers and healthcare professionals, pill testing not only gave users a chance to know what they’re really taking but also to engage with health professionals about their drug use outside of a very formal medical setting.

In Europe, pill testing has also facilitated the capturing of long-term data about the substances in drugs as well as drug use.

Meanwhile in NSW, the Government is still doing what it has always done in response to this issue – throw more resources and tougher problems – an approach that has so far, had little effect on solving the problem.

When will the Government listen?

Of course, harm minimisation programmes like pill-testing are not a panacea by any means. They are highly controversial, mostly because people think that they will encourage more drug takers or remove the stigma’ that’s associated with taking illegal substances, and that by agreeing to pill testing is turning a ‘blind eye’ to those who break the law.

But in NSW, the traditional ‘zero tolerance’ approach is not working, and many believe that we will continue to have, more tragic and unnecessary deaths from drug taking at music festivals unless we try a new approach.

Experts are frustrated that despite all the proven benefits of pill-testing, the NSW Government flatly refuses to even trial it. And the community is getting weary too – many young Australians

are highly supportive of pill testing; a finding consistent with young people’s overall views about drugs: they want better information in order to make informed choices.

Defies Logic: Premier Will Intensify the War Against Drugs to Make People Safer

By Paul Gregoire and Ugur Nedim

Following the tragic drug-related deaths of two young people at the Defqon.1 festival in September, NSW premier Gladys Berejiklian tasked an expert panel with investigating how to improve safety at events like music festivals.

And in true Coalition style, Ms Berejiklian announced last week that her government had accepted in-principle the recommendations made by the panel in its report, which means she’s going to double down on failing drug war tactics.

The premier explained that in order to create a safer environment for young people at festivals, the government will be creating a new offence that will make dealers responsible for the deaths of people who buy drugs from them and subsequently die.

As well, to “ensure that offenders face swift and certain justice”, the government will be trialling on-the-spot fines of up to $500 for festivalgoers found in possession of illegal drugs.

Although the initial reaction to the announcement was disbelief, it’s hardly too surprising. The expert panel was comprised of NSW police commissioner Mick Fuller, NSW chief health officer Dr Kerry Chant and Independent Liquor and Gaming Authority chair Philip Crawford.

And what’s more, the panel made clear in their report that Berejiklian had told them prior to their investigation that her government “has no tolerance for illegal drugs and pill testing is not within the terms of reference”.

Counterproductive policing

President of the Australian Drug Law Reform Foundation Dr Alex Wodak stressed that increased policing won’t achieve its stated aims. He outlined that “senior and experienced police” have been asserting that “saturation policing doesn’t have a significant effect on drug availability”.

The doctor said that initially this admission came from retired police, including commissioners. But, these days, serving officers are beginning to admit saturation policing doesn’t work. “The political elite have also known this for at least a decade or two,” he added.

Indeed, there’s a growing number of former high-level police officers calling for a different approach to be taken to illicit substances than the one the NSW premier advocates for. The list includes former AFP commissioner Mick Palmer and ex-NSW police commissioner Ken Moroney.

And Dr Wodak further pointed out that “the two deaths that sparked this reaction occurred when saturation policing – plus sniffer dogs – had already been provided”. There was a huge police presence at the Defqon.1 festival in September, with 180 police officers deployed at the event.

Increased penalties = increased profits

The expert panel’s seventh recommendation was that a new offence of drug supply causing death be introduced. The premier said she believes the maximum penalty for this crime should be set between 10 years, and the 25 years for manslaughter.

But, Dr Wodak warns that this proposed law is likely to make selling drugs more profitable. “Dealers will raise their prices to compensate for the increased risk,” he explained. “If drug prices rise, so will profits.”

And in his estimate, once the profits increase, then they’ll be more “wannabe drug dealers” lining up as “the higher profits justify the increased risk”. And as more drug dealers appear on the scene, the obvious result would be that more drugs are sold.

“The drug market is the Achilles heel of drug prohibition,” Dr Wodak added. “That’s why political conservatives were so prominent in early support for drug law reform.”

Increasing the harms at festivals

The use of highly-ineffective drug detection dogs at music festivals has long been criticised, as their presence actually leads festivalgoers to partake in dangerous drug taking practices.

These include preloading, which is when an individual takes all of their drugs prior to an event to avoid being found in possession of them. And another detrimental effect is panic overdosing, which is when a person consumes all of their drugs at once on seeing a sniffer dog operation.

There’s been at least two recorded incidents panic overdosing in NSW, one of which was the death of James Munro at the Defqon.1 festival in 2013.

Now, if some young people attending a festival are aware that there will be police officers making the rounds of the event issuing $500 fines for drug possession, it might seem like a good idea to take all of their drugs before arrival, which, of course, could lead to overdose.

And it also seems very likely that the immediacy of an on-the-spot fine could further compel an individual who’s holding drugs at a festival and spots a drug dog to take an amount of drugs at once that could prove fatal so as to avoid the penalty.

An evidence-based approach

“Drug law enforcement has a poor record. It’s usually ineffective, often counterproductive and always expensive. In contrast, harm reduction is just the opposite,” Dr Wodak continued. “So, pill testing has a much better chance of saving lives and money.”

These days, the majority of Australians support the roll out of pill testing services at music festivals. These setups allow festivalgoers to have their drugs tested by laboratory-grade equipment and then make an informed decision about whether to take them.

The first government-sanctioned Australian pill testing trial took place at Canberra’s Groovin the Moo festival in April this year. The drugs of two individuals who used the service were found to contain a substance that can prove lethal, meaning the service potentially saved both their lives.

European nations have been employing this life-saving method for decades now. In countries like the Netherlands, Switzerland and Spain individuals can have their drugs checked at events or at permanent sites. In fact, the European Union has produced pill testing best practice guidelines.

So, many were dumbfounded when the state’s top cop Mick Fuller got on the microphone last week and stated that pill testing was a “myth” and there was “no science behind” it.

The broken law enforcement approach

Dr Wodak said that Ms Berejiklian antics were reminiscent of the famous nursery rhyme, where extra resources were thrown at something that cannot be fixed. “The Premier will now double the King’s horses and double the King’s men to see whether she can put Humpty Dumpty together again.”

“This isn’t a policy,” the doctor went on. “It’s a political strategy.” And he questioned whether it was her lack of support in the Coalition or her imminent defeat in the next election that was leading her to conduct this “drug policy grandstanding”.

“Whatever the reason is it’s hard to believe she really expects this is going to make any difference to protecting young people,” Dr Wodak concluded.

Deemed Drug Supply Laws Should be Abolished

By Paul Gregoire and Ugur Nedim

Eight out of nine Australian jurisdictions have deemed supply laws, which provide that an individual found in possession of more a certain quantity of a prohibited drug can be charged with supply, even if there’s no evidence of actual or even intended supply.

These laws were adopted throughout Australia in the early 1970s in response to the recommendations of a national inquiry. But the legitimacy of the laws has been questioned since that time, and Queensland later became the only jurisdiction to revoke the provisions.

In most Australian jurisdictions, there are currently at least four ways an individual can be charged with drug supply. Firstly, a person may be caught selling or distributing an illicit substance. Secondly, police may gather circumstantial evidence – such as communications and/or paraphernalia – which is suggestive of supply.

A third way is to have a quantity of drugs sufficient to support a charge of deemed supply. It’s this third avenue that has long been criticised as unjustified, and as undermining the rule of law.

Deemed supply in operation

Section 29 of the Drug Misuse and Trafficking Act 1985 (the DMT Act) stipulates that an individual found in possession of more than a traffickable amount of a prohibited drug in NSW can be deemed to have that substance in their possession for the purpose of supply.

If a charge of deemed supply is brought, it is for the defendant to prove on the balance of probabilities that the substance is in their possession for something other than supply – most commonly for personal possession, or less commonly that they are momentarily holding the drugs for someone else (nown as the Carey defence).

Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents. It also outlines the traffickable, indictable, commercial, and large commercial quantities of each substance.

As the amount of any given prohibited substance increases, so do the penalties that apply – up to a maximum of life imprisonment and/or a $550,000 fine.

When personal use becomes supply

A traffickable quantity of MDMA (or ecstacy) is only 0.75 grams, which can be as little as three pills.

An individual could plausibly be found in possession of three pills for personal use, whether at home, at a music festival or anywhere else. But the law allows that instead of possession, they can be charged with drug supply.

The maximum prison time for MDMA possession is 2 years behind bars and/or a fine of $2,200. However, the maximum penalty for supplying between 0.75 grams and 5 grams of MDMA is 15 years in prison and/or a fine of $220,000 where the case is dealt with by the District Court.

Supply treated more seriously than possession

Most drug possession offenders are diverted away from the strict application of the criminal justice system, whereas if an individual is charged with drug supply, they’re more likely to be subjected to the full force of the long arm of the law.

And this situation could become a lot more drastic for people who use party drugs, as NSW premier Gladys Berejiklian has suggested that the expert panel she’s tasked with reviewing how to improve safety at music festivals consider tougher drug supply penalties.

The adoption of unjust laws

The 2015 article Deemed Supply in Australian Drug Trafficking Laws: a Justifiable Legal Provision? examines the rationale behind the adoption of deemed supply laws in this country, and outlines why they should be done away with.

Former NSW Director of Public Prosecutions Nicholas Cowdery, National Drug and Alcohol Research senior research fellow Dr Caitlin Elizabeth Hughes and UNSW Professor Alison Ritter authored the paper.

They explain that the reasoning behind the enactment of deemed supply laws were perceived difficulties in prosecuting and sanctioning drug traffickers, as well as the need for “desperate measures” to deal with the threat drug trafficking posed to the Australian public.

All jurisdictions adopted the laws. However, an overhaul of Queensland drug legislation in the mid-1980s saw deemed supply provisions dropped due to an outcry from legal and civil liberties groups, stressing that the laws were unnecessary, unjust, and impinged on the rights of the accused.

Inconsistency with criminal law

The authors point out that deemed supply laws are inconsistent with the three core principles of Australian criminal law: that there must a crime and an intent to commit it, a person is innocent until proven otherwise and the burden of proving the accused’s guilt is on the prosecution.

However, as the paper makes clear deemed supply laws completely undermine these criminal law foundations. An individual can be arrested, prosecuted and punished for drug trafficking without any actual proof of the supply or the intent to supply.

The accused from the outset is presumed to be guilty, rather than innocent. And the burden of proof is upon the accused to show that they were in the possession of the illicit substance for another purpose other than supply.

Inconsistent with international laws

The article goes on to explain that Australian deemed supply laws are out of step with drug laws in most other nations. In other jurisdictions around the world the mere quantity of an illicit drug is not enough to prove supply, and a number of other incriminating factors need to be taken into account.

The United Kingdom considered introducing deemed supply provisions in 2005. However, the proposal was thrown out as the approach was seen as “unjust, impractical, perverse and arbitrary”. One major criticism was the random setting of amounts to distinguish personal use and supply.

The harms caused to people who use drugs

Since 1985, the goal of Australia’s National Drug Strategy has been harm minimisation: reducing the harms associated with drug use. And with this it follows that drug traffickers should receive the most severe criminal punishments, and not people who use drugs.

However, as the paper explains, deemed supply provisions blur the line between drug suppliers and people who use the substances. There are documented cases where individuals found with drugs in their possession for personal use have been convicted of supply and sent to prison.

Indeed, deemed supply laws seem to be set up to penalise people for personal drug possession and small time dealers, as in cases where major crime figures are found in possession of large quantities of drugs, the reversal of the burden of proof is hardly necessary for the prosecution’s case.

Time to revoke the laws

“We recommend that deemed supply provisions be subject to legislative review or preferably abolition from Australian drug trafficking law in favour of a system where charges for supply are based on proof of actual trafficking or preparation for trafficking,” the report authors state.

They go onto explain that this would mean that a person in possession of only three MDMA pills would not automatically be presumed to have the intent to supply to others, unless there was something else that indicated they were, such as large amounts of money or a contact list.

This change to the laws “would be neither radical nor unfeasible”, according to the authors, but it would rather be “a progressive move towards proportional and justifiable drug trafficking laws”, which would rectify a poor policy decision that was make four decades ago.

Know Your Rights This Music Festival Season

By Paul Gregoire and Ugur Nedim

The tragic drug-related deaths at the Defqon.1 music festival in southwestern Sydney on 15 September have gained a lot of media attention. And rightly so. But what hasn’t gathered as much attention is the saturation policing at the event.

NSW police were out in force. There were 180 officers at the festival, some of whom were accompanied by drug detection dogs. Police searched 355 festivalgoers and only 69 of these searches resulted in any illicit substances being found. So, that’s a success rate of just 19 percent.

What this means is if you plan to attend an event this season, and won’t be carrying drugs, it’s still important to know your rights because a sniffer dog may well sit next you regardless, which could result in a bodily search or even a strip search.

You have the right to remain silent

During a search, or subsequent arrest, you’re not required to answer any specific questions police ask you, except for providing your name and address. Failure to provide these details – or providing false details – can result in a fine.

In the case where drugs are found, it’s best to remain silent. This will prevent you from saying anything that might be detrimental in the long run. And whatever you do, don’t say you intended to give away or share the drugs, as this can result in a more serious charge of drug supply, rather than drug possession.

Police search powers

The police powers to stop and search a person without a warrant are contained in the Law Enforcement (Powers and Responsibility) Act (LEPRA) 2002. This legislation requires that officers must have a reasonable suspicion to carry out such a search.

Section 21 of the LEPRA provides that an officer may stop, search and detain a person without a warrant if they suspect on reasonable grounds that the individual is carrying illegal drugs, a dangerous weapon, stolen property, or anything used, or intended to be used, to commit a crime.

Reasonable suspicion

The leading authority on what constitutes reasonable suspicion is the 2001 NSW Court of Criminal Appeal case R v Rondo. It sets out that “a reasonable suspicion involves less than a reasonable belief, but more than a possibility.”

So, if an officer pulls you up for a search at a music festival they must have some “factual basis” as to why they’re doing so. And it’s best to ask the officer for the reason why they’re conducting the search.

Reasonable suspicion cannot be that an officer simply thinks you look dodgy, or they don’t like the way you’re dressed, or even if you’re in an area that’s well known for drug use or other criminal activity.

And never say to an officer of the law that you consent to a search. If you do give consent, police will no longer need to demonstrate that they had a reasonable suspicion to search you later on.

Indeed, it’s best to comply with an officer’s instructions, but also to state that you don’t give consent. This could lead to a charge being dropped or thrown out of court at a later date if it’s shown that an officer had no grounds to carry out the search.

Sniffer dogs

Section 148 of the LEPRA provides police with the power to use drug detection dogs in public places without a warrant. This includes using dogs on people at, or entering or leaving, licensed venues and events, such as music festivals, concerts, parades and sporting events.

There’s dispute over whether an indication by a drug dog actually constitutes reasonable suspicion. This is due to the fact that sniffer dogs are highly unreliable and get it wrong anywhere from two-thirds to three-quarters of the time.

However, officers do indeed search people following a positive indication made by a dog. And over recent years, these dogs have become a permanent fixture at music festivals, so be prepared that you could be searched regardless of what you’re up to.

During a search

If an officer does decide to search you, it’s best to remain calm and comply. Trying to resist can result in a charge of resisting arrest. And watch what you say, as swearing can result in a fine or a charge of using offensive language.

Section 202 of the LEPRA requires that in the event of a search, an officer must show you their badge if they aren’t wearing a uniform. They’re also required to tell you their name. And they must provide you with the reasons as to why they’re conducting the search.

Police can carry out three types of searches. A frisk search, where they run their hands down the outside of your clothing. An ordinary search, where they require you to remove items of clothing – such as a coat or shoes – and examine them. And then officers can also carry out a strip search.

Section 21A of the LEPRA also provides police with the ancillary powers to order a person to open their mouth for the purposes of a search, and to shake their hair if they suspect something is being concealed within it. Failure to comply with this request can result in a fine of $550.

It’s perfectly legal to film police in a public space, and this includes music festivals. So, if possible, have a friend stand back and film the search. The police have no powers to prevent this from happening, as long as the individual is not hindering the search.

The invasive strip search

Section 31 of the LEPRA provides that police can carry out a strip search in a place – such as a music festival – if the officer “suspects on reasonable grounds” it “is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.”

If you’re at a music festival a strip search has to be carried out in a private enclosed area, like a tent. And the search must be conducted by a member of the same sex. At no time should your body cavities – including your mouth – be searched, and you should not be touched in any way.

No one should be present other than those needed for the purposes of the search, and nor should any item of clothing be unnecessarily removed. And under no circumstances are strip searches to be carried out on children under the age of 10.

Found in possession

If drugs are located on your person, remember that apart from providing your identity, you have no obligation to speak or answer any questions. And certainly, don’t imply that the drugs were in any way for anyone else.

Be aware that if you are found with a “traffickable amount” of a substance on you, section 29 of the Drug Misuse and Trafficking Act 1985 provides that you can be charged with supply, even if there’s no evidence that suggests you’ve been supplying others. This is known as deemed supply.

As little as 0.75 grams of MDMA – or three or four pills – can be deemed supply. For cocaine, methamphetamine or heroin, three grams or more can land you with a charge of supply. And for cannabis, it’s a lot more – 300 grams.

In the case of arrest

If an officer does arrest you, it’s important to stay calm and don’t resist, as resisting could led to an escalation of the situation and more charges being laid. The best thing to do after being issued with a court attendance notice is to get in touch with an experience criminal lawyer.

A good lawyer can guide you through the process. They may be able to have the charges dropped or thrown out of court, and in the case of a charge of deemed supply, they may be able to have it downgraded to possession.

So, now that you’re aware of your rights, remember to comply with police instructions, but don’t give your consent to a search. And have a great festival season.

Drug Supply Charges for Cough Medicine Ingredient Dismissed

By Paul Gregoire and Ugur Nedim

Matthew Woods and his co-accused Phillip Kandarakis were arrested in April 2014, and charged with the supply of a prohibited drug under section 25(2) of the Drug Misuse and Trafficking Act (DMT Act).

Officers from Strike Force Taipan executed a warrant at Barrack Heights, where they seized 4,993 grams dextromethorphan. The weight was not less than the large commercial quantity of the drug.

The pair were charged with supplying the drug between 20 March and 2 August 2013. The maximum penalty for the offence of supplying a large commercial quantity of a prohibited drug is life imprisonment and/or a fine of $550,000.

Dextromethorphan is a common active ingredient in over-the-counter cough medicine. On the streets, the drug is known as “dex,” or “poor man’s PCP.” The drug can produce a euphoric or hallucinogenic effect on those who use it.

The quantity found at Kandarakis’ property had been sourced in India, and then forwarded to Sydney. It was claimed the drug was going to be used in a salted mix for cows.

Dextromethorphan is an isomer of the drug methorphan. An isomer is a molecule that has the same molecular formula as another molecule, but has a different chemical structure.

Disputing the charge

Before a jury was empanelled, Mr Woods’ lawyers made an interlocutory application to NSW District Court judge Helen Syme to quash the indictment on the basis dextromethorphan is not a prohibited substance under the DMT Act.

Section 3 of the Act outlines that a prohibited drug “means any substance, other than a prohibited plant, specified in schedule 1.” A substance “includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers.”

Schedule 1 lists the traffickable, small, indictable, commercial and large commercial quantities of all prohibited plants and drugs. Methorphan, along with levomethorphan (another isomer of methorphan), are listed in the schedule. However, dextromethorphan is not.

Schedule 1 of the DMT Act also includes an analogue provision.

This subsection states that a prohibited drug also includes any unlisted related drug if it is either “a structural isomer having the same constituent groups as the drug,” or if it is “a structural modification obtained in one or more of the following ways…” And a long list of ways is outlined.

“Under the analogue provision, where a substance that is not a prohibited drug has psychotropic properties, and is structurally similar to a prohibited drug in specified ways, it is treated as a prohibited drug for the purpose of the Act,” explained Liberal MLC Matthew Mason-Cox in 2013.

The findings of the trial judge

Both the prosecution and defence tendered statements from experts. And there was little disagreement between them.

They agreed that an isomer can either be a structural isomer or a stereoisomer. A structural isomer has the same molecular formula as another molecule, but a different bonding arrangement between atoms. Whereas, a stereoisomer has both identical molecular formula and arrangement of atoms.

Dextromethorphan is a stereoisomer of methorphan, but not a structural isomer.

Judge Syme concluded that as dextromethorphan is an isomer of methorphan, but not a structural isomer, it is not capable of being included in the analogue provision of schedule 1 of the DMT Act.

However, Her Honour found that dextromethorphan does appear in the Poison and Therapeutic Goods Act 1996 as a restricted substance. And this Act contains offence provisions for the supply of restricted substances.

The judge ruled the drug was prohibited, as she found no conflict between the two Acts.

The Crown concedes

Mr Woods appealed Judge Syme’s interlocutory judgement to the NSW Court of Criminal Appeal (NSWCCA) on the sole ground “that her Honour erred in finding that dextromethorphan is a prohibited drug under the DMT Act.”

On 31 August last year, the Crown conceded that dextromethorphan was not a prohibited substance for the purposes of the DMT Act, and that Her Honour had made an error.

The Crown’s concession was that the definition of a prohibited drug in section 3 of the DMT Act “means” any substance specified in schedule 1, including the analogue provisions.

Both parties agreed that the definition of substance is the “preparation and admixture and all salts”, which means the total weight of the substance found, not merely the weight of the drugs contained within that substance.

So, for example, if the total weight of a white powder is 1 kilogram, but an analysis of the substance finds that it is only 25 percent heroin and the rest is something else, the accused will be charged in respect of 1 kg of heroin for a NSW state offence such as possession or supply, not with 250 grams of the substance.

The Crown conceded that substance is not meant to work as a “catch-all” for all substances that are not listed within schedule 1, or covered in the analogue provisions.

This was consistent with the argument made by Mr Woods’ lawyers.

The NSWCCA was told that that if the trial judge was correct, then the list of chemicals specified as prohibited substances would expand “far beyond those considered to be prohibited drugs under either the explicit list included in the schedule or those brought within the schedule by the analogue provisions.”

The NSWCCA findings

The NSWCCA agreed with this line of argument. They therefore allowed the appeal, vacated the judgement, and quashed the indictment. On 2 February this year, the court also ordered the state to cover Mr Woods’ legal costs.

“The effect of this court’s decision is that the applicant had been charged with an offence unknown to law,” the NSWCCA justices found. “No further proceedings under the DMT Act can be brought against him for the supply of dextromethorphan, as it is not a prohibited drug.”

Moves underway to ban the substance

Following the findings of the NSWCCA, NSW attorney general Mark Speakman announced the government was looking into classifying dextromethorphan as a prohibited drug.

A spokesperson for the attorney general said dextromethorphan had been referred to the government’s committee that makes recommendations about adding substances to the DMT Act list.

“Although it is a substance that can be abused, it also has legitimate medicinal uses,” the spokesperson remarked.

Dextromethorphan has not yet been not listed in schedule 1 of the DMT Act, although it remains a ‘restricted substance’ and is heavily regulated under the provisions of the Poisons and Therapeutic Goods Act.

Blue ‘Superman’ Pill Warning

New South Wales police have issued warnings regarding a batch of blue pills branded with a Superman ‘S’, which they believe are responsible for five recent drug overdoses in New South Wales.

Eleven people have been taken to hospital in Newcastle, with symptoms believed to be related to taking the blue pill. While lab tests have not yet determined the composition of the tablets, police and health professionals are urging people not to ingest them.

Pill testing

The overdoses sparked renewed calls for pill testing as summer approaches – the season for schoolies, Christmas parties and music festivals.

Around Australia, police, paramedics, and hospital emergency department staff are gearing up for what they call the ‘drug season’.

2015 was arguably Australia’s worst ever year for overdoses at music festivals, resulting in governments putting festivals on ‘notice’ of closure if the problem persists.

And while most festival organisers do what they can, simply banning drugs does little to combat the problem, resulting in people embarking on the dangerous practices of ‘preloading’ before an event or taking all their drugs at once upon seeing police and sniffer dogs at the event.

The presence of deadly ‘fillers’ in pills is also a significant problem, and health professions have been pointing out for years that pill testing is a proven way of informing festival-goers about the presence of such additives in their tablets, thereby allowing them to make decisions about whether to take their drugs and, if so, how much.

Fed up with what they believe is a ‘head-in-the-sand’ approach, advocates for pill testing took matters into their own hands around this time last year and made kits available at festivals across Sydney in what they say was a ‘protest manouvre’.

Spilt Milk festival trials pill-testing

The ACT has bucked the political trend, agreeing to allow a pill testing service be trialled at the Spilt Milk festival this year, on November 25.

It’s a positive step forward for pill-testing advocates, who say that in Europe, where pill testing has long been available, it has proven to be a very successful way for people to find out what they’re taking and make decisions beforehand. Australian harm minimisation advocate Dr David Caldicott, and a tireless campaigner for pill testing, says it reduces the prospect of users consuming drugs with harmful additives by 60 per cent.

The Spilt Milk festival trial comes at an interesting time for Australia, with a report released by heavy-weight think Tank group Australia 21 recommending a national move towards drug decriminalisation, with greater recognition of drug use as a health issue. The report also recommended more investment in harm-minimisation programmes, such as pill testing.

Trial results could provide a basis for expansion

The Spilt Milk festival trial will, at long last, provide local data which will enable decision-making with regard to the effectiveness of pill-testing and provide a much-needed direction for the potentially life-saving initiative.

After Spilt Milk has taken place, the organisation running the trial, Safety Testing Advisory Service at Festivals and Events (STA-SAFE) will share results, which it hopes will provide impetus for the programme to be expanded, not just across the ACT, but other states and territories as well.

Less Teens Smoke Weed When it’s Legal

By Zeb Holmes and Ugur Nedim

Countries which move towards legalising the recreational use of cannabis invariably face the conservative outcry that such a move will result in an upsurge in demand.

However, there is a growing body of research to suggest that not only is the link between cannabis legalisation and increased use a myth, but legalising the drug may result in less young people being attracted to its mystique or using it to rebel.

Recent study

A recent study of 216,000 adolescents in the US over a 12 year period suggests that less teenagers are using cannabis in states where its possession and use have been legalised, than when these activities were a crime.

Researchers at the Washington University School of Medicine in St. Louis also found that the number of adolescents with “cannabis-related problems” — such as dependency coupled with trouble in school and relationships — declined by up to 24 percent in jurisdictions that legalised the drug.

The study found that up to 10 percent fewer teenagers in those states had reported using marijuana.

The researchers further found reductions in behavioural problems, including fighting, property crimes and selling drugs.

Causation

This study looked at adolescent behaviour between 2002 and 2013, with this period being shortly after medical cannabis was first legalised in 1996, with greater liberalisation following in the years thereafter.

“We were surprised to see substantial declines in marijuana use and abuse,” said lead researcher Richard A. Grucza. He qualified this by pointing out that the research suggested a correlation and not necessarily a causation relationship.

“We don’t know how legalisation is affecting young marijuana users, but it could be that many kids with behavioural problems are more likely to get treatment earlier in childhood, making them less likely to turn to pot during adolescence,” he added. “Whatever is happening with these behavioural issues, it seems to be outweighing any effects of marijuana decriminalisation.”

Benefits of decriminalisation

Twenty percent of Americans now live in states where the use and possession of small quantities of cannabis are no longer a crime.

State surveys of young people in Colorado, Washington, Oregon, and Alaska suggest that after decriminalisation, the number of students who had tried the drug remained stable, rather than increased as predicted by conservatives.

Meanwhile, these states have benefited from tens of millions in extra tax revenue. Colorado, for example, brought in $129 million in its second year of legalisation and Washington welcomed $220 million extra into its coffers.

But perhaps the greatest financial benefit is the fall in expenditure upon enforcement – from policing, to prosecution through the court system, to prison expenditure. And there are flow on social benefits, with less drug users being drawn into the crime cycle and all the harm that flows from it.

Portuguese experience

Portugal stands as the worldwide model for drug decriminalisation. In 2001 the Portuguese government took the unprecedented step of decriminalising all illicit substances, from marijuana to crystal methamphetamine to heroin.

In 1999, around one percent of the population in Portugal was addicted to heroin. The nation also reportedly had the highest number of drug-related AIDS deaths in the European Union. The government had been waging the usual war on drugs since the 1980s, but it wasn’t working.

But since decriminalisation, Portugal’s drug-induced death rate has fallen top three per million residents, which is five times lower than the European average. By 2014, the number of new drug-related HIV infections had plummeted to 40, compared with 1,016 thirteen years prior.

And drug use among teenagers in grades 10 through 12 has dropped by over third since decriminalisation.

The Portuguese drug policy has been so successful that the ultra-conservative and quasi-judicial body, the International Narcotics Control Board, lauded it as exemplary in December 2015.

Heavy Police Presence at this Year’s Splendour in the Grass

More than 260 people were arrested for drug offences by the time last weekend’s Splendour in the Grass music festival wrapped up on the northern New South Wales coast.

The police presence was unmistakable at the popular annual event – with interview and frisk tents set up just inside the entrance gates, and a high visibility police operation in full swing involving counter-terrorism police, sniffer dogs and the public order and riot squad.

In addition to specialist police and private security guards, 150 regular police officers patrolled the grounds. Tough security measures including a ‘no-backpacks rule’, and scanning with an electronic wand were implemented to “avoid terrorist attacks”.

While police were primarily targeting illegal drug use and anti-social behaviour, they also charged five people with assault and issued 65 criminal infringement notices to people who allegedly entered the event without valid tickets.

But dealing with charges for drug possession was what kept police busy – with cannabis, ‘ice’, ‘ecstacy’ and cocaine topping the list.

Twelve people were also charged with drug supply, including a 21-year old man who was allegedly found in possession of 60 ecstasy pills. 76 people were issued with cannabis cautions, and 142 were ordered to attend court.

Concealing drugs internally

Police say they detected an increase in the number of people attempting to conceal drugs inside their bodies this year.

Allegations also surfaced that school girls aged just 16 and 17 were acting as drug mules – filling condoms with drugs and coating them in peanut butter before inserting them into their bodies, hoping the peanut butter would conceal the scent of the drugs.

Sniffer dogs and pill testing

The use of drug detection dogs has always been controversial, but the debate around their effectiveness heightened after a spate of deaths at music festivals around Australia in 2015 and 2016.

Many believe sniffer dogs are ineffective and can lead to dangerous behaviours. Statistics from 2015 show that NSW police carried out 12,893 bodily searches resulting from positive indications by sniffer dogs, of which a whopping 69 percent turned out to be false positives – where no drugs are found.

In terms of behaviour, the presence of sniffer dogs has been linked to ‘pre-loading’ and ‘loading up’. The former is where users take large amounts of drugs before arriving at the festival, while the latter involves take significant quantities upon seeing police approaching. The practice has been linked to a number of deaths from overdoses in 2015 and 2016.

For many years, health experts have lobbied for pill testing to be introduced at festivals across Australia, whereby festival-goers are able to have their drugs tested for dangerous additives and high purity levels. Pill testing has been used in a number of European countries for years, and proving to be highly successful in reducing hospitalisations and deaths from overdoses.

Man Advertises Cocaine for Sale

By his own admission, Jamie MacDowell made a “stupid” decision recently.

The Scottish tourist posted an online ad in a local Gold Coast classified which read:

“Got some good coke in Surfers. $300 a g.”

Just hours later, who else but an undercover police officer sent him the following text message:

“Hey, looking for Cola on the GC.”

The pair arranged to meet at Cash Converters on the southern end of the Coast to complete the deal.

Unbeknownst to the officer, MacDowell’s “coke” was actually granulated ibuprofen.

Police nevertheless arrested and charged MacDowall with supplying a prohibited drug.

He pleaded guilty in Southport District Court, where Judge Katherine McGinness was taken aback by the foolishness of the man before her.

“How you did not think you would be caught is unbelievable,” Her Honour remarked.

“Didn’t you make a stupid decision?”, she asked. “Yes, very stupid”, MacDowell replied.

The hapless dealer’s criminal defence barrister explained that his client was “desperate for money to pay for rent and food” as he was “between jobs”, which is why he concocted the doomed plan.

Even though the substance was not an illegal drug, the fact MacDowell represented it as so meant he was still guilty of drug supply under Queensland law.

He was ultimately slapped with an $800 fine but escaped a criminal conviction.

He is expected to return to Scotland in the near future.

Selling fake drugs in NSW

In NSW, a person who misrepresents a substance as a prohibited drug, poison, plant or psychoactive substance is similarly guilty of supplying that substance.

In that regard, section 40(1) of the Drug Misuse and Trafficking Act 1985 (NSW) provides that:

“A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct) as being a prohibited drug… shall… be deemed to be a prohibited drug…”

Subsections (1A), 2 and 3 apply to poisons, prohibited plants and psychoactive substances respectively.

A fine but no conviction?

Courts in Queensland are permitted to impose fines for criminal offences without also having to record convictions.

The situation in NSW is different. Here, any person who is given a fine for a criminal offence will also have a conviction recorded against their name.

The only way for a guilty person to escape a conviction in NSW is to receive a ‘section 10’ – which means guilty but no conviction recorded.

A section 10 can come with a good behaviour bond of up to two years, but cannot be accompanied by a fine.

Don’t post online!

Mr MacDowall’s case is certainly not the first time the internet has been instrumental in helping police detect drug offenders.

Also on the Gold Coast, a man who posed for a sexy bathroom selfie with a stash of marijuana and posted it online in 2015 found himself quickly arrested for possessing a prohibited drug.

And a Lismore man who recently took a video of his $700k marijuana crop and posted it on Facebook, also found police on his doorstep executing a search warrant and placing him under arrest.

Renewed Calls for Pill Testing After NBOMe Found in Deadly ‘Ecstacy’ Batch

The toxic psychedelic NBOMe is continuing to take Australian lives as users of illicit drugs are unaware that the synthetic substance may be added to MDMA or LSD.

Recently, a batch of ecstacy pills linked to the deaths of three Melbournians were found to contain traces of MDMA mixed with NBOMe. The mix was also found in substances tested by Queensland police after a death and several hospitalisations on the Gold Coast last year.

Presence of NBOMe on the rise

Although there is little data on the prevalence on NBOMe use in Australia, Google Trends suggests that interest in the drug began in April 2012, and has been increasing ever since.

NBOMe can be purchased through websites that sell “research chemicals”, as well as online drug marketplaces on the ‘dark net’. Because the drug is potent in miniscule quantities and has virtually no scent, it is often transported undetected via regular mail services.

The effects of the drug are reported to be more similar to LSD than MDMA, and only tiny doses are required. A dose of MDMA, for example, is 125mg, whereas people have reported NBOMe as being active at just 0.05mg. The drug’s high potency increases the likelihood of overdose.

Synthetic drugs

Media and government reports often distinguish ‘synthetic drugs’ such as NBOMe from other commonly used substances such as LSD, MDMA and methamphetamine.

The distinction is misleading as the latter three drugs are also produced synthetically, as opposed to those derived from plants such as cocaine, heroin and of course cannabis.

A better definition of synthetic drugs is those manufactured using legal substances, which produce effects similar to illegal drugs.

Indeed, the category of “analogue” has been added to the schedule of the Drug Misuse and Trafficking Act 1985, which refers to synthetic substances which are chemically similar to illicit drugs and produces a psychotropic; essentially mimicking drugs which are illegal.

Overdoses

ABC’s 7:30 programme has reported on three Australian teenagers who lost their lives after using NBOMe.

Nick Mitchell of Gosford, NSW, reportedly died after experiencing respiratory and heart problems, while Preston Bridge and Henry Kwan died after jumping from balconies during psychotic episodes.

It was reported that all three young men had consumed an LSD-like substance, suspected to be NBOMe after no LSD acid was found in their bodies following toxicological examination.

“At a strong dose, users may lose a sense of their self in the world”, explained Dr Monica Barratt, Research fellow at the National Drug and Alcohol Research Centre at the University of NSW.

“For some people who aren’t anticipating that experience, that is very difficult for them to cope with, they may end up with psychotic symptoms”.

“The world around them as they know it is falling apart. It really plays with your sense of time.”

Harm minimisation

There are concerns of drug suppliers continuing to “contaminate” ecstacy pills and LSD with NBOMe, which is a lot cheaper to purchase.

Unlike LSD, which has a relatively low toxicity profile, NBOMe is said to carry serious health risks.

Individuals have presented to emergency departments with acute NBOMe toxicity, experiencing symptoms such as cardiovascular complications, agitation, seizures, hypothermia, metabolic acidosis (when the kidneys can’t remove enough acid from the body), organ failure and even death.

While some politicians and police continue to defend the failed war against drugs, health experts have renewed their calls for harm minimisation measures such as pill testing at music festivals and other major events to reduce the incidence of overdoses.

Anex, a not-for-profit harm minimisation organisation in Victoria, recently launched a campaign aimed at informing LSD users that NBOMe may be contained in their drugs, and encouraging them to purchase and use legally available drug testing kits. The organisation advises users not to ingest the drug if it does not test positive for LSD.

They further recommend that if a testing kit is not available, users should only take a quarter dose and wait one-and-a-half hours before considering taking any more.