Following our first part a fortnight ago, this blog will look at the powers of police regarding prohibited drugs, searching individuals and arrests. Importantly, we’ll look at what you can expect to occur if police find you with drugs on your person. If you don’t want to read the whole blog, at least skip to the end for our summarised checklist. Thanks again to our paralegal, Tim Bowring, for his contribution.
What police can do
Police can give a ‘reasonable direction’ to a person in a public place who they think on ‘reasonable grounds’ is selling or buying drugs. The direction must be ‘reasonable in the circumstances for the purpose of stopping’ the buying or selling of the drugs. It is illegal to not comply with this direction. Asking you to take your jumper off or to empty your pockets is considered a reasonable direction and should be adhered to – if you don’t, you could be charged.
The police can search you without arresting you. Police have the power to ‘stop, search and detain’ anyone who they ‘reasonably suspect’ might be in possession of drugs. If police suspect that you are concealing illicit drugs in a body cavity, they can detain you.
The police may search you and examine items in your possession. The police can also quickly run their hands, or use a metal detector, over your clothes.
What police can’t do
Unless it is an indictable offence, you don’t have to answer questions. If it is an indictable offence (see our last blog), there are some different rules that can apply (see our blog ‘When You Say Nothing At All – When Can Silence Be Held Against You?’).
If police ask you to go to the police station to answer questions, you don’t have to go unless you are arrested. Even if you have been arrested you still have the right to not answer their questions. They cannot demand that you accompany them to the station if you have not been arrested.
Police can’t demand your phone unless they think it is stolen, was used in criminal activities or includes pictures or footage that provides evidence of a crime.
What you should do
Keep calm at all times. Matters can escalate quickly when you (or friends) panic or antagonise police officers. Definitely do not ingest what’s in your possession to avoid being caught. The potential consequences in doing so are far greater than what you can expect from being questioned by police.
Ideally, the police usually prefer, and are required if appropriate, to issue a summons or court attendance notice for you to attend court at a later date. However, if an officer suspects on reasonable grounds that you have committed an offence, you may be arrested. This is often the result if you are being aggressive or unreasonable.
What outcome you can expect
If you have been caught and charged, there is a range of penalties available to the court (see our last blog). Obviously, repeat offenders can expect a tougher penalty than a first time offender.
If you have been found guilty, it is possible to avoid a criminal conviction if the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For this to occur, you or your solicitor must demonstrate to the court why you should not have a conviction recorded. Exhibiting remorse and being of previous good character can help your cause greatly but the quantity and use of the drug will be a very important factor.
In our experience, there are a number of Local Court Magistrates and District Court Judges that are willing to consider non-conviction under a section 10 good behaviour bond. On the other hand, there are an equal number that apply a blanket rule against such orders for these types of offences. It is worthwhile being aware of the Criminal Court of Appeal decision in R v Mauger  NSWCCA 51 – or making sure your solicitor is aware of the decision.
(a) If police with a reasonable suspicion approach you and you have a small quantity of drugs in your possession, you may be arrested.
(b) You should cooperate with the police and be courteous at all times.
(c) Outside of providing your name and a form of identification, you do not have to answer their questions as what you say may be used in court.
(d) Although penalties vary, it is possible, in some circumstances, to avoid a conviction if you are a first time offender. But there’s no guarantee and each case is different.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.