By National Criminal Lawyers

Let’s face it if you’re under 25 and say you have never tried “so called recreational drugs” you’re probably a liar, but you’re probably a fool if you say that you do.

A study of drug reports by The American drug addiction information service “Project Know” found ecstasy available in Australia is among the “most dangerous in the world”.

Now 22 years after Anna Victoria Wood life ended (27 May 1980 – 24 October 1995) after collapsing into a coma after taking an ecstasy tablet at a rave in inner-city Sydney Australia is now introducing “Pill testing” at certain music festivals.

Pill testing and pill testing kits have been a hot topic in the media this year, especially around music festivals after several deaths linked to ecstasy pills last year.

The first festival to try pill testing was the Groove in the Moo festival which took place in April 2018 by way of an approved proposal of the University of Canberra, on whose grounds the festival was held. The testing was done also in collaboration with Safety and Testing and Advisory Service at Festivals and Events (STA-SAFE), the ACT government and ACT Police.

Firstly, it is important to distinguish the difference between ‘pill testing’ and ‘pill testing kits’. Pill testing, in the context of something like a music festival, refers to the establishment of a mobile pill testing laboratory. This lab is operated by experts that will obtain a sample of a pill and test it with verified tests. This is in contrast to pill testing kits. These kits are usually purchased online and a person choosing to purchase pills will use the kit to give them an indication of what chemicals may be present in those pills.

Pill testing does not prove that a drug is safe. However, it can identify known unsafe drugs as well as dangerous adulterants. If a drug fails the test it can then be safely discarded in an amnesty bin. If the drug discarded in this manner is a win for the health and safety of young people at music festivals.

So, what were the results?

Out of the thousands of people who attended the Groove in the moo festival, 128 decided to have their drugs tested. In the testing, lab participants would simply arrive and provide a scraping or small sample of their pill or powder to volunteers, who then analysed it in a mobile laboratory. After analysing the results were then provided to attendees along with the risks and side effects of consuming the substance. Those who decided not to take their drugs then were given the opportunity to throw their drugs into an amnesty bin, which according to ACT Health used bleach to “completely destroy any drugs deposited in them to the extent that they could not be recovered or used”.

Geoff Munro, the policy manager at the Alcohol and Drug Foundation, said “When people are buying pills and powders on the street they can never be sure what is in them,”

He added. “Very often people are playing Russian roulette. It may be a highly dangerous chemical, or it may be a much stronger drug that they believe it is. It will reduce overdoses, it will reduce some dangerous drug taking and it will save lives”.

Doctor David Caldicott a doctor on site, ended up testing 85 drug samples. He was quoted as saying:

          “People were surprised with the kind of stuff that we found in the drugs. We had everything from paint to toothpaste. We also found NutraSweet, which is an artificial sweetener,              arnica muscle rub and milk powder,” STA-SAFE member Matt Noffs from Harm Reduction Australia previously told news.com.au.

Dr Caldicott also said the presence of N-ethyl pentylone was particularly concerning “because it’s killed people” in the past.

Drug Possession in NSW

The question ultimately becomes whether a person caught with a drug can still be prosecuted by the police, even under the protection of the pill testing facility at a festival.

As it stands, drug possession in NSW is illegal.

A criminal conviction for a drug offence can have serious impacts upon your freedom and could cause travel restraints and employment refusals.

Section 10(1) of the Drug Misuse and Trafficking Act 1985 states that:

“A person who has a prohibited drug in his or her possession is guilty of an offence”

The maximum penalty for drug possession is a fine of $2,200, or Full Time Custody for up to 2 years, or both.

The police must prove beyond reasonable doubt that:

1. The prohibited drug was in your possession; and
2. You know the prohibited drug was in your possession

To possess something means you had “control” over it. By law, it doesn’t necessarily have to be in your pocket, jacket or wallet, but it must be established that you have physical control over it.

Often police have difficulty in proving possession when the drug is found in a house where several persons are residing or in a shared common place, such as a music festival.

Where a guest at a party left marijuana in a bathroom cupboard and during a raid some time later, a resident of the house told police that he knew the drugs were there and that he had “intended to dump them”, he was found not guilty of possession because he had laid no claim to the drugs and had exercised no control over them. Knowledge that the drugs were there was not enough; See Solway v R (1984) 11 A Crim R 449.

The Case of R v Filipetti (1978) 13 A Crim R 335 is also a very interesting and often referred to case by National Criminal Lawyers. In that case, a man lived with his girlfriend, his mother, his brother and another couple in a three-bedroom house. The police found marijuana inside the lounge in the living area, a room to which all the occupants had regular access. The man’s conviction was overturned on appeal. The Court of Criminal Appeal said that it was necessary to prove that he had the drugs in his exclusive physical control, and that this was difficult because of the large number of people having equally free access to the room in which they were found.

For more information on drug possession please visit our website

Case studies

A client was recently charged with possession of a prohibited substance (ecstasy) contrary to section 10 Drug Misuse and Trafficking Act 1985 (NSW) after being detected by a police “sniffer dog” which was being used as part of an organised drug operation at a Sydney Music Festival. The maximum penalty for this offence is 2 years imprisonment, or fine of $2200 or both.

Daniel Wilson, our Senior Criminal Lawyer represented the client at the first appearance at the Downing centre Local Court. Daniel having already done all the preparation work (including obtaining all subjective material) was able to have the matter finalised at the first appearance. This pleased the client greatly as both her and the Courts are oftentimes best served by a speedy resolution for these types of matters. This also saved our clients further costs for further legal proceedings.

At the sentencing hearing, Daniel handed up references and a letter of apology and submitted to the Magistrate on how apart from this one incident our client was both young and of “good character and repute”, while also having various community ties and reputation which needed protection. He further submitted on case law in establishing why in these circumstances, recording a conviction would be “inexpedient” on our client.

In particular, her present and future endeavours in life and employment would have been jeopardised should the matter not be dealt with by way of a non-recording of a conviction.

The court was minded to allow our client a get out of gaol card, by way of a non-recorded conviction pursuant to section 10. For more information please visit how to obtain a Section 10

This means that the client is now able to continue her life without a conviction being recorded against her name.

If you have been charged with any drug related offence, our Team and National Criminal Lawyers are well versed and specialists in having these charges either withdrawn or achieving favourable outcomes for our clients. Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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