Section 36W of the Drug Misuse and Trafficking Act 1985 (NSW) sets out what the court must consider to determine whether premises are drug premises.

A court must not find a person guilty unless the prosecution proves beyond a reasonable doubt that, at the time of the alleged offence, the premises involved were being used for the unlawful supply or manufacture of a prohibited drug or the unlawful commercial cultivation of a prohibited plant by enhanced indoor means, or both.

Considerations

To determine whether premises were used for the unlawful supply or manufacture of a prohibited drug, the court may consider the following:

• evidence that a police officer lawfully authorised to enter the premises was wilfully prevented from entering, or was obstructed or delayed
• evidence about the construction of the premises, such as doors fitted with bolts, bars, chains or other devices designed to prevent, delay or obstruct entry
• evidence that someone acted as a lookout to warn occupants of the approach of police or others
• evidence of syringes or other devices used in the supply, manufacture, or use of prohibited drugs
• evidence of unlawfully possessed firearms or prohibited weapons
• evidence of documents or records connected to unlawful drug supply or manufacture
• evidence of large amounts of unaccounted money on the premises
• evidence of people who appeared to be affected by a prohibited drug on the premises

In determining whether premises were used for the commercial cultivation of a prohibited plant by enhanced indoor means, the court may consider the following:

• obstruction or delay of police entry
• evidence of equipment, such as high-powered lighting, fluorescent or high-intensity discharge lamps, growing chambers, spray systems, hydro-controls, or digital timers
• evidence of documents or literature relating to hydroponic or indoor cultivation methods, cannabis cultivation, or both
• evidence of cannabis seeds, cut leaves, plants, minerals, chemicals, nutrients, or their packaging commonly used in indoor cannabis cultivation
• abnormal electricity consumption
• unauthorised connections to or bypasses of the electricity supply
• blacked-out or boarded-up windows or condensation on windows
• unusual ventilation systems
• continuously running generators
• installation of security devices such as cameras
• evidence of draft excluders fitted to external doors
• records connected to unlawful indoor cultivation
• unexplained large amounts of money
• persons affected by prohibited drugs on the premises
• any other matters prescribed by regulation

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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