Measures to Obtain Evidence in Drug Street Dealings - A Comparative Study of Australian and German Criminal Law Enforcement

STRUCTURE

I. Introduction

II. Drug Offences and their Enforcement

III. Measures to obtain evidence in Australia
1. Australian Capital Territory
2. New South Wales
3. Northern Territory
4. Queensland
5. South Australia
6. Tasmania
7. Victoria
8. Western Australia
9. Brief Summary of the measures to obtain evidence in the Australian States

IV. Measures to obtain evidence in Germany

V. Conclusion

Appendix

BIBLIOGRAPHY

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2. Case Law

R v Bull (1974) 131 CLR 203

Commonwealth v Tasmania (1983) 46 ALR 625

He Kaw Teh v R (1985) 157 CLR 523

R v Stevens (1991) 23 NSWLR 75 (NSW Sup Ct CA)

OLG Düsseldorf, 03.03.1994 – 3 Ws 113/94, 2

OLG Düsseldorf, 15.03.1994 – 2 AR 32/94 – 3 Ws 4/94 und 3 Ws 71/94, 4

OLG Düsseldorf, 15.03.1994 – 2 AR 311/94 – 3 Ws 119/94, 2

OLG Frankfurt/Main Neue Juristische Wochenschrift (1997), 1647

OLG Bremen Neue Zeitung für Strafrecht-Rechtsprechungs-Report Strafrecht (2000), 270

KG Berlin Juristische Rundschau (2001), 162

KG Berlin Strafverteidiger (2002), 122

3. Legislation

Australian Constitution

Controlled Substances Act 1984 (SA)

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth)

Customs Act 1901 (Cth)

Drugs Misuse Act 1986 (Qld)

Drugs Misuse and Trafficking Act 1985 (NSW)

Drugs of Dependence Act 1989 (ACT)

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Misuse of Drugs Act 1981 (WA)

Misuse of Drugs Act 1990 (NT)

Narcotic Drugs Act 1967 (Cth)

Poisons Act 1971 (Tas)

Police Powers (Internally Concealed Drugs) Act 2001 (NSW)

Police Administration Act 1978 (NT)

Psychotropic Substances Act 1976 (Cth)

S ummary Offences Act 1953 (SA)

Code of Criminal Procedure

Federal Border Guard Code

German Constitution

Narcotic Drugs Code

Public Safety and Public Order Code

I. Introduction

Drugs have always been and will continue to be a vice of human society. They cause “harm to [both] users [and] their families”^[1], are a danger to the users’ health^[2], and impose enormous costs on society, especially on the public health system^[3]. Moreover, a correlation between the use of drugs and other crimes can be found (drug-crime nexus)^[4] because their addiction often forces users to commit other offences in order to finance their habit (drugs-related crime)^[5]. Therefore, drugs can be looked at as a threat to the welfare of community^[6].

Although changing attitudes and/or recreational activities might alter which kind of drug is favoured the most at the time being, the core problem stays the same over time. Therefore, how to deal with drug crimes and related issues is a topic that remains contemporary and is always worth considering.

The following research paper examines drug law enforcement measures in cases of street dealings in both Australia and Germany. But first, it is necessary to give a brief general overview over the differences between the two legal systems with regard to drug offences and their enforcement.

II. Drug Offences and their Enforcement

Although both Australia and Germany are federations, the effects on criminal law and law enforcement in these two countries differ from each other.

In Australia, a “split between [Federal] and State/Territory legislation on drugs”^[7] exists. The Commonwealth’s competence with regard to this issue can be either based on the ‘trade and commerce’ power under Australian Constitution s 51(i) or the ‘external affairs’ power under Australian Constitution s 51(xxix). While the first power of legislation enables the Federal Government to restrict or prohibit the importation of goods^[8], the second one permits the Commonwealth to enact laws implementing the terms of the international treaties and conventions dealing with drugs^[9]. Under the ‘external affairs’ power, the Federal Government enacted the Narcotic Drugs Act 1967 (Cth), the Psychotropic Substances Act 1976 (Cth), and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth)^[10]. However, in enacting the Customs Act 1901 (Cth) s 233B(1)(a), s 4(1), Sch VI^[11] the Commonwealth relied on its ‘trade and commerce power’ and thus “erects […] a barrier or defence against narcotics coming into Australia”^[12].

In contrary to this, the State/Territory Legislation “is a measure which enables the State [or Territory] to police the use of and trafficking in narcotics”^[13] within the respective State. These laws are “used principally where the criminal activity has no international dimension”^[14]. Hence, they criminalize the administration, possession and supply of prohibited drugs^[15].

Due to this distinction of Federal and State/Territory legislation, the law enforcement of drug offences is also split in Australia. Both Federal Courts and State/Territory Courts have jurisdiction to determine drug charges. The police are also divided into Federal Police and State/Territory departments. However, nowadays, specialised drug agencies such as the National Crime Authority and State Crime Commissions are in charge of enforcing the drug laws^[16].

In Germany this is different. Under Art 70(1) German Constitution ^[17] , the competence to legislate in principle lies with the State Governments. The Federal Government, however, has the legislative competence when the Constitution expressly says so. Under Art 74(1) No 1 German Constitution, the Federal Government has the power to enact legislation with regard to criminal law and the execution of sentences. Therefore, legislation on these issues primarily is Federal Law. With regard to drug offences the applicable provisions can be found in the Narcotic Drugs Code ^[18] whereas law enforcement measures may be obtained from the Code of Criminal Procedure ^[19] .

In relation to the enforcement of drug law, especially with relevance to the police, a split can be found in Germany as well. On the one hand, there is the Federal Police, in Germany referred to as Federal Border Guard. Officers of the Federal Border Guard are responsible for protection of the federal territory (border protection), Federal Border Guard Code^[20] s 2(1), and, hence, can be found on German territory along the borders, at the harbours and airports.

The State Police on the other hand are in charge of enforcing the law in the states themselves. Generally, the State Police act preventively which means forward-looking with regard to the prevention of future offences and as such bases its methods on the Public Safety and Public Order Code^[21]. But if the police officer is an auxiliary official of the Public Prosecutor they can become active with regard to criminal prosecution as well. In this case, he acts repressively which means backward-looking in relation to criminal offences that have already occurred, and with regard to these measures the officer relies on the Code of Criminal Procedure. Federal Border Guard officers, however, are generally justified to act in either way. Their power to intervene can be found in Federal Border Guard Code ss 14-50.

With regard to the courts, there exists no distinction between Federal and State Courts in Germany.

These differences between Australia and Germany are fundamental to understanding who is responsible to act, on which law the actor can rely and which legal consequences the actions may have for the suspect if a drug can be detected with him.

Cross-border trafficking of drugs into Australia, for example, leads to the applicability of the Customs Act 1901 (Cth) and thus is enforced by Federal Police and prosecuted within the Federal Courts. In Germany, however, such ‘body-packing’ is subject to the Narcotic Drugs Code. The enforcement of this code would either be engaged in by the Federal Border Guard on the basis of the Federal Border Guard Code, or police officers who are auxiliary officials of the Public Prosecutor and whose power to intervene could be found in the Code of Criminal Procedure. The suspect would then be charged in front of a German criminal court of first instance.

Drug street dealing in Australia, however, has nothing to do with the import of drugs into the country and, hence, is not a matter which falls within the competence of the Commonwealth. Legislation, enforcement and prosecution on this issue would instead be carried out by the relevant State or Territory. In Germany, this kind of drug-supply would be prosecuted by the State Police, again as auxiliary official of the Public Prosecutor on grounds of the Code of Criminal Procedure. The suspect would be charged in front of a German criminal court of first instance on the basis of the Narcotic Drugs Code.

III. Measures to obtain evidence in Australia

Since there are six States and two Territories in Australia which each have different legislation on measures to obtain evidence, there is a need to deal with them separately. The following will do so in alphabetical order and, afterwards, briefly sum up the findings before moving on to the German legislation.

1. Australian Capital Territory

With regard to the Australian Capital Territory the legislation on methods to obtain evidence can be found in the Drugs and Dependence Act 1989 (ACT)^[22].

Under Drugs of Dependence Act 1989 (ACT) s 184(1) the state police is allowed to search a person, her or his clothing and the property which is in her or his immediate control. The officer may seize any thing that he believes on reasonable grounds to be connected with a criminal offence. Besides the possibility to search the person after having obtained her or his consent, when taking the person into lawful custody, or after a warrant or order of the court has been issued, the police officer is empowered under Drugs of Dependence Act 1989 (ACT) ss 184(1)(d), 188 to search the person in circumstances of seriousness and urgency. As a prerequisite to this, the police officer must believe on reasonable grounds, that it is necessary to do so to prevent the concealment, loss or destruction of any thing connected with an offence and that the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant or order of a court, Drugs of Dependence Act 1989 (ACT) s 188(1).

Under s 189(6) of the Drugs of Dependence Act 1989 (ACT), the body search is restricted to external searches and shall be conducted by a police officer of the same sex as the searched person (Drugs of Dependence Act 1989 (ACT) s 189(2)). In order to simplify the search of the person’s clothes, the police officer may remove or require the suspect to remove them, Drugs of Dependence Act 1989 (ACT) s 189(1).

2. New South Wales

New South Wales legislation on the enforcement of drug laws can be found in the Drugs Misuse and Trafficking Act 1985 (NSW) s 37(4)(a) which reads: A member of the police force may stop, search and detain any person in whose possession or under whose control the member reasonably suspects there is, in contravention of this Act, any prohibited plant or prohibited drug. The New South Wales police therefore is justified to search the suspect herself/himself and her or his belongings. The seizure of so found evidence is authorised by s 39 of the Drugs Misuse and Trafficking Act 1985 (NSW).

Heroin in Cabramatta, a suburb of Sydney, is “typically sold in caps, small units weighing between 0.02 and 0.03 grams pre-packaged for individual sale”^[23]. They are wrapped in small piece of foil and sealed in miniature balloons^[24]. “Most street-level dealers in Cabramatta store [these] caps in their mouth. When a customer wishes to purchase, the dealer simply spits the cap(s) into her or his hand and passes it to the customer in exchange for the money”^[25] (mouth dealing). It is not unusual that street dealers swallow the evidence in an effort to avoid detection and seizure of the narcotic^[26].

Although it is police practice to attempt to prevent suspects swallowing the drugs by putting a hand around the dealer’s throat so they cannot swallow^[27], this does not always lead to the obtaining of evidence. Hence, it is necessary to have legislation on drug enforcement concerning internally concealed drugs. The basis for such measures can be found in the Police Powers (Internally Concealed Drugs) Act 2001 (NSW). This Act provides the police of New South Wales with the power to gain a court order or the consent of the suspect (Police Powers (Internally Concealed Drugs) Act 2001 (NSW) s 7) to transport her or him to a hospital, the surgery, or other practising rooms of a medical practitioner in order to carry out an internal search, s 15(1), (3) of the Police Powers (Internally Concealed Drugs) Act 2001 (NSW). With regard to this Act internal search means any search of a person’s body involving an ultrasound, MRI, X-ray, Cat scan or other form of medical imaging, but does not include a search of a person involving an intrusion into the person’s body cavities, Police Powers (Internally Concealed Drugs) Act 2001 (NSW) s 3. With the so gained medical image the presence of the drugs inside the suspects body can be determined. Once a drug is found, the suspect can be detained in police custody in hospital for up to 7 days until she or he passes it out naturally^[28].

3. Northern Territory

In the Northern Territory, the law on this issue can be found in the Police Administration Act 1978 (NT). Under s 120C(c) of this Act a police officer is allowed to stop, search and detain for the purposes of that search, a person in a public place if the officer has reasonable grounds to suspect that the person has in her or his possession a dangerous drug under s 3 of the Misuse of Drugs Act 1990 (NT). Such a search if carried out on a female should be conducted by a female member of the Police Force or a medical practitioner, Police Administration Act 1978 (NT) s 120E(1).

Under Police Administration Act 1978 (NT) s 120BA(a) a police officer, moreover, may seize a so found thing if she or he suspects, on reasonable grounds, that it is a dangerous drug.

4. Queensland

Under the Queensland legislation on drug law enforcement, a police officer is justified to detain a person if they reasonably suspect the person to have in her or his possession evidence as to the commission of an offence, Drugs Misuse Act 1986 (Qld) s 15(1). The detained person and her or his belongings can then be searched and everything that is found and may afford evidence as to the commission of an offence can be seized (Drugs Misuse Act 1986 (Qld) s 15(5)). Under s 16 of the Drugs Misuse Act 1986 (Qld), a search of a person or the person’s clothing while it is being worn shall be carried out by a police officer of the same sex as the searched person or by a medical practitioner. Besides external searches, a medical practitioner is allowed to examine any internal part or cavity of the person’s body with or without consent of the searched person if a police officer reasonably suspects that the searched person has secreted within her or his body or body cavities a dangerous drug s 17 of the Drugs Misuse Act 1986 (Qld).

In Queensland, the modus operandi of mouth dealing is known in very few cases of South American dealers who packaged their drugs in balloons in order to trade them. However, this concealment method is not widespread and the police is currently not aware of anyone swallowing the 'deals' in an effort to avoid detection^[29].

If someone was mouth dealing the only possible way to obtain the drugs would be to request them to surrender the items – hopefully before they swallow them. Force could only be used as a means to open the suspect’s mouth^[30].

5. South Australia

In South Australian, legal methods to obtain evidence in drug cases can be found in the Controlled Substances Act 1984 (SA). Under s 52(6) of this Act, a police officer may search any person whom he believes on reasonable grounds has in her or his possession any substance or equipment in contravention of this Act. If the suspect so requires she or he has to be taken before a justice who then may order that the person can be searched, Controlled Substances Act 1984 (SA) s 52(7), (8).

South Australian Legislation differentiates between ‘body search’ and ‘physical’ or intrusive search. An intrusive search requires a medical practitioner to conduct the search. This is not always practicable and there have been occasions where a suspect has been set free without a search^[31]. In South Australia, an internal cavity search can only be ordered by a justice^[32].

The suspect can be detained up to four hours by the police officer without a warrant under s 78(2)(a), (6) of the S ummary Offences Act 1953 (SA).

South Australia also experiences the problem of ‘mouth-dealings’. One can find this with heroin dealers who package the drugs in small balloons and hold them in their mouth. These are easily swallowed if approached by Police. Usually, the swallowed amounts are street deals are around 0.1 of a gram and the suspect does not hold more than a few deals at a time^[33].

South Australian Police generally would not hold a suspect to retrieve the drugs unless there is sufficient evidence or a belief that the suspect is concealing a larger quantity^[34].

6. Tasmania

In Tasmania, the necessary provisions can be found in the Poisons Act 1971 (Tas). Under Poisons Act 1971 (Tas) s 90B(1)(a)(f) Tasmanian police officers are allowed to search the person and detain her or him for the purpose of carrying out the search if the officer believes on reasonable grounds that there are prohibited substances in the possession of the person. The authorised searches cover clothes and belongings of the person, s 90B(1)(a)(f), (3) of the Poisons Act 1971 (Tas). Moreover, the police may conduct personal searches of the suspect, including strip searches which means the removal of most or all of the clothing, as long as it is conducted by an officer of the same sex as the searched person, Poisons Act 1971 (Tas) s 90C(1)(a), (b), (2)(b). A body cavity search (rectum or vagina) can only be undertaken by a medical practitioner following the granting of an order by a magistrate (Poisons Act 1971 (Tas) s 90C(1)(c), (d)(i), (2)(a)).

The so found objects can be seized by the Tasmanian police officers under s 90B(1)(a)(f)(i) of the Poisons Act 1971 (Tas).

The State of Tasmania has rarely encountered the problem of street dealers swallowing drugs upon apprehension. But if this would be of an issue, the suspect would remain in police custody until the drug passed out naturally^[35].

7. Victoria

The methods which can be used to obtain evidence in drug street dealings in Victoria are laid down in the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Section 82(c), (g) of this Act allows Victorian Police Officers to search a person, her or his clothes and belongings and seize the so found evidence if the police officer has reasonable grounds for suspecting that there is a drug of dependence in the possession of this person. Where there are reasonable grounds to believe that a person may be concealing drugs or related evidentiary items in a body cavity other than the mouth, the police must seek medical advice for this internal search^[36].

[...]

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^[1] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 823.

^[2] David Brown et al, Criminal Laws, Materials and Commentary on Criminal Law and Process in New South Wales (2001) 1072 [9.2].

^[3] Ibid; Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 823; L Waller and C R Williams, Criminal Law, Text and Cases (9th ed, 2001) 528 [9.64].

^[4] Simon Bronitt and Bernadette McSherry, supra n 3, p. 827; David Brown et al, supra n 2, p. 1072 [9.2].

^[5] Ian Dobinson and Patrizia Poletti, Buying and selling heroin, A study of heroin user/dealers, NSW Bureau of Crime Statistics and Research, p. 110.

^[6] Simon Bronitt and Bernadette McSherry, supra n 3, p. 823.

^[7] Simon Bronitt and Bernadette McSherry, supra n 3, p. 841.

^[8] Importation here means bringing into Australia from abroad that is physically landing or bringing within the limits of a port with the intention of landing, see: R v Bull (1974) 131 CLR 203 at 220, 254 (Barwick CJ); He Kaw Teh v R (1985) 157 CLR 523 at 528, 531 (Gibbs CJ).

^[9] Commonwealth v Tasmania (1983) 46 ALR 625 at 667-668 (Gibbs CJ); Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 823.

^[10] David Brown et al, Criminal Laws, Materials and Commentary on Criminal Law and Process in New South Wales (2001) 1112 [9.8].

^[11] Schedule VI includes cannabis, cocaine, heroine, LSD and morphine.

^[12] R v Stevens (1991) 23 NSWLR 75 at 82 (Lee CJ at CL).

^[13] Ibid.

^[14] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 841.

^[15] Drugs of Dependence Act 1989 (ACT); Drugs Misuse and Trafficking Act 1985 (NSW); Misuse of Drugs Act 1990 (NT); Drugs Misuse Act 1986 (Qld); Controlled Substances Act 1984 (SA); Poisons Act 1971 (Tas); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Misuse of Drugs Act 1981 (WA).

^[16] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 862.

^[17] Grundgesetz der Bundesrepublik Deutschland.

^[18] Betäubungsmittelgesetz.

^[19] Strafprozessordnung.

^[20] Bundesgrenzschutzgesetz.

^[21] Sicherheits- und Ordnungsgesetz.

^[22] Please find the necessary provisions of this Act and the following in the Appendix to this research paper.

^[23] Lisa Maher and David Dixon, ‘Policing and Public Health: Law Enforcement and Harm Minimization in a Street-level Drug Market’, British Journal of Criminology (1999) 39 (4) 488 at 490.

^[24] Ibid.

^[25] Lisa Maher and David Dixon, ‘Policing and Public Health: Law Enforcement and Harm Minimization in a Street-level Drug Market’, British Journal of Criminology (1999) 39 (4) 488 at 496.

^[26] Ibid.

^[27] Lisa Maher and David Dixon, supra n 25, p. 497.

^[28] Response of an Illicit Drug Policy Officer within the NSW Police to an inquiry by the author with regard to this issue.

^[29] Response of a Sergeant with the State Drug Investigation Group, Queensland Police Service to an inquiry by the author with regard to this issue.

^[30] Ibid.

^[31] Response of the South Australian Police to an inquiry by the author with regard to this issue.

^[32] Linda Anderson and Mandy Doon, ‘Police powers in Queensland: Legislative oversight or deliberate design?’, Legal Service Bulletin, 11 (6) December 1986, 269 at 270.

^[33] Response of the South Australian Police to an inquiry by the author with regard to this issue.

^[34] Ibid.

^[35] Response of a Detective Inspector within the Drug Investigation Services of the Tasmanian Police to an inqui-ry by the author with regard to this issue.

^[36] Response of a Project Officer within the Drug and Alcohol Strategy Unit, Victoria Police, to an inquiry by the author with regard to this issue.