Charged just for being in the house: NSW drug premises offences and what “found on or in” really means
You went to a mate’s place. You were there twenty minutes. Police came through the door with a warrant, and now you are holding a court attendance notice – not for possessing anything, not for supplying anything, but for being there. If that sounds like it cannot possibly be an offence, it is worth reading Part 2B of the Drug Misuse and Trafficking Act, because it very much is.
Drug premises offences are among the least understood provisions in NSW drug law. They do not require the prosecution to prove you owned drugs, touched drugs, sold drugs or even knew drugs were on the property. They shift the burden onto you in a way almost no other offence does. And they routinely sweep up people whose involvement was genuinely incidental.
Where the offences sit
Part 2B of the Drug Misuse and Trafficking Act 1985 (NSW) creates a cluster of offences built around the concept of drug premises. Section 36TA defines the terms, section 36V deals with the possession or presence of prohibited drugs or plants on premises, section 36W governs how the prosecution proves that premises are drug premises, and sections 36X to 36Z create the offences themselves.
The three that matter to most people charged are these. Section 36X makes it an offence for a person to be found on, or found entering or leaving, drug premises. Section 36Y deals with allowing premises to be used as drug premises, catching owners, occupiers and those with control. And section 36Z targets a person who organises or conducts, or assists in organising or conducting, drug premises.
Penalties escalate with repetition and with role. The lower-level offences carry maximum penalties expressed in penalty units and imprisonment, with substantially higher maximums for a second or subsequent offence. Organising drug premises sits at the top of the range. Where children are found on the premises, or where firearms are involved, aggravated forms and additional charges come into play.
The element people cannot believe: you do not have to have done anything with the drugs
Read section 36X again. The offence is committed by a person who is found on, or who is found entering or leaving, drug premises. That is the whole physical element. There is no requirement that you possessed a drug, supplied a drug, knew about any drug, or intended anything at all.
This is fundamentally different from ordinary drug possession, where the prosecution must establish knowledge and control – an issue we cover in detail in our article on how police prove knowledge and control when drugs are found in someone else’s house. Drug premises offences sidestep that entirely. The question is not what you knew. It is where you were.
The reverse onus: the defence you have to prove
Section 36X(2) provides that a person is not guilty if the person satisfies the court that he or she was on, or was entering or leaving, the drug premises for a lawful purpose or with a lawful excuse.
Note the wording carefully. It is not that the prosecution must prove you had no lawful purpose. It is that you must satisfy the court that you did. That is a reverse onus, discharged on the balance of probabilities rather than beyond reasonable doubt, but it is still your burden to carry. In practice it means the case is often won or lost on whether you can demonstrate, with something more than your own assertion, why you were there.
Which is exactly why what you do in the first hour matters so much. People in this situation frequently talk their way into trouble at the scene, offering half-explanations that later look like inconsistencies. The safer course is set out in our article on how the right to silence actually works in NSW – say nothing beyond your name and address, and get advice before you explain anything.
How police prove premises are drug premises
This is the part of the case defence lawyers attack hardest. Section 36W allows a court to draw on a broad range of evidence in determining whether premises are drug premises, and the categories will be familiar to anyone who has read a police fact sheet in these matters.
The indicators typically relied on include fortification of the premises – reinforced or barred doors, security screens, surveillance cameras, lookouts, or arrangements designed to slow police entry. Then the physical paraphernalia: scales, resealable bags, tick lists, cutting agents, large amounts of cash in small denominations, multiple phones. Then patterns of traffic: frequent short visits at odd hours, observed by police during surveillance. Then anything found on the premises pointing to supply rather than personal use.
None of those things individually establishes anything. It is the accumulation the prosecution relies on. And the corollary is that each element can be tested. Fortification consistent with an ordinary security concern in a high-crime area is not the same as a purpose-built drug fortress. Scales in a kitchen are not scales in a bedroom next to a tick list. Short visits can have entirely ordinary explanations. The strength of a Part 2B case very often depends on how much of the picture survives cross-examination.
Who actually gets charged
In practice, four groups turn up repeatedly. Visitors who happened to be present during the execution of a warrant. Housemates and partners who live at an address where someone else is dealing. Landlords and lessees who continued to lease premises after becoming aware of what was happening, exposed under the allowing-premises offence. And people alleged to have played an organising or assisting role – taking money, letting people in, running a lookout, holding a phone.
That last group deserves particular attention, because section 36Z extends to assisting in organising or conducting drug premises. A person who describes their role as just helping out, minding the door, or answering the phone is describing conduct that fits the section. This is the same expansion of liability we see in large drug operations, where peripheral participants are caught by joint enterprise reasoning – a dynamic we explain in our article on what joint enterprise charges mean for everyone caught up in a major drug operation.
What else usually comes with the charge
Drug premises charges rarely arrive alone. A warrant execution that produces a Part 2B charge very often produces possession charges for anything found on you, supply charges based on quantity, deemed supply where the amount exceeds the traffickable threshold, and in the more serious matters, ongoing supply.
Understanding the difference matters enormously, because the maximum penalties are not comparable. Deemed supply shifts a matter from a two-year maximum to a fifteen-year maximum, as we set out in our article on the line between having drugs and being a drug supplier in NSW. And supply on an ongoing basis – three supplies of a traffickable quantity within 30 days – is more serious again. Where premises are alleged to be a supply operation, prosecutors will often be looking for the highest available characterisation.
Proceeds of crime consequences also follow. Cash seized at premises is regularly the subject of forfeiture proceedings, and those run on their own timetable with their own rules.
Where the defences actually live
Four lines of attack come up most often. First, the lawfulness of the search itself – the validity of the warrant, whether entry complied with the requirements of the Law Enforcement (Powers and Responsibilities) Act, and whether evidence obtained improperly should be excluded. Second, whether the premises meet the statutory definition at all, which is where the section 36W indicators get tested one by one.
Third, identification and presence: whether you were in fact found on the premises within the meaning of the section, or were, for example, in a shared driveway, a common area of a block of units, or an adjoining property. Fourth, and most commonly, lawful purpose or lawful excuse – which requires evidence. Messages arranging an entirely innocent visit, a job you were there to do, a person you were there to collect, phone records, timing. Assertion alone rarely discharges the onus.
The wider enforcement picture
Drug enforcement in NSW is not standing still. BOCSAR’s recorded crime statistics and its crime trends dashboard track offence categories quarterly, and drug offences remain a substantial component of Local Court volume. At the lower end, the Early Drug Diversion Initiative now allows police to issue a fine rather than a court attendance notice for small quantity possession in defined circumstances, as we explain in our article on what an on-the-spot drug fine actually means. Premises offences sit well outside that diversionary space.
If police have raided a house you were in
Do not assume the charge will fall over because you did not own anything. Do not explain yourself at the scene. Do not contact the other people charged to compare accounts, because that conversation will be evidence. Preserve your phone rather than clearing it. Write down, the same day, exactly why you were there, who can confirm it, and what time you arrived – because that account will be the foundation of a lawful purpose defence, and memory degrades fast.
Contact Us
Being charged over your presence at someone else’s address is one of the most unfair-feeling positions in NSW criminal law, and the reverse onus makes it one where doing nothing is genuinely dangerous. These cases turn on the strength of the drug premises characterisation and on whether a lawful purpose can be properly evidenced – and both of those are matters of preparation, not luck.
At National Criminal Lawyers, we defend drug premises charges and the possession, supply and proceeds matters that come with them across NSW courts. We know how these briefs are assembled, which indicators do not survive scrutiny, and how to build a lawful purpose case that actually discharges the onus.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
