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.
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.
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.