Your Legal Rights as an Accused Drug Dealer | Freezing, Restraining and Forfeiture Orders

If you are accused of dealing in prohibited drugs in Australia, you are exposed not just to being searched, arrested, charged, and convicted. You are also exposed to penalties of up to life imprisonment depending on the quantity of drugs involved. In NSW, you will also be exposed to having your assets seized and confiscated by the NSW Crime Commission and under federal law by the Australian Federal Police and/or the Commonwealth Director of Public Prosecutions. This can include your home, cash, investments, properties, cars, and bank accounts. Given the wide powers given to these organisations, this can occur even if you have not been convicted of supplying drugs in criminal proceedings.

Knowing your rights could mean the difference between damage control and total financial ruin.

Your Right to Silence

If a police officer suspects you to be involved in drug supply and begins interrogating you, you are not obliged to answer any of their questions.

Generally, you have the right to silence without any adverse consequences against you for choosing to exercise that right. This is reflected in legislation, namely, section 89 of the Evidence Act 1995 (NSW).  Your right to silence is also protected by common law.

Your Rights After An Arrest and Your Options at a Police Station

If you are about to be arrested, or have been arrested and detained by police and then find yourself in custody at a police station, here is a summary of your legal rights:

1. Police do not have the power to detain or arrest you solely because they wish to question you about an allegation. Before a police officer can arrest you without a warrant, the officer must suspect on reasonable grounds that you are committing or have committed an offence and that the arrest is reasonably necessary for one of the reasons set out in section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), such as to stop you committing another offence.
2. If you are being arrested, the police officer must inform you of the reason for the arrest and must provide evidence that he or she is a police officer unless in uniform, and they must also provide their name and place of duty. The arresting police officer is allowed to use force that is reasonably necessary to execute the arrest power. Resisting or hindering the arrest can lead to further charges.
3. The police must bring you before a court to be dealt with according to law as soon as reasonably practicable following arrest. Once at court you can make a bail application. If the local court refuses you bail, you can then make a  Supreme Court bail application.
4. Police are allowed to detain a suspected person following an arrest for purposes of questioning or investigating the offence only if Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)  is complied with. This means, that after you have been arrested, the following rights come into play:
   • After being arrested, police are required to take you to a police station or place of custody if the police are detaining you for purposes of questioning or investigation.
   • as soon as practicable after coming into the custody of a police station or place of detention, the custody manager must provide you with your Part 9 rights which includes a caution that you do not have to do or say anything but anything that you do or say can be used against you in court.
   • You must be given an opportunity to speak to a lawyer for advice before deciding whether or not to answer police questions about an alleged offence. When speaking to a lawyer at this time, the police must allow you to get this advice in private without your conversation being overheard.
   • You must be given an opportunity to contact a friend or family member.
   • If an interpreter is needed, the police must arrange an interpreter.
   • Any formal questioning must be done at the police station and only after the above safeguards have been complied with.
   • Following arrest, police are allowed to detain you for questioning or investigation usually for up to 6 hours. The 6 hour time cap can be extended by a detention warrant.
   • Generally, while detained after an arrest, police must either release you on bail conditions or unconditionally within the 6 hour investigation period or alternatively they must bring you before a court within that investigation period.

If police fail to comply with the above safeguards and you end up giving an interview with answers that damage your defence case, then the answers to your interview can be excluded as evidence in court including under sections 84, 85, 90 and  138 of the Evidence Act. Exclusion of such evidence could substantially weaken the prosecution case against you.

Police Search and Seizure- When Can Police Search and Seize Your Property?

It is illegal for police to stop, arrest, search and seize anything on you without first complying with the safeguards found in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). A failure to comply with these legal safeguards before exercising a search can result in the evidence found as a consequence of the illegal search to be deemed inadmissible in court pursuant to section 138 of the Evidence Act. This can then result in the charge being dismissed.

What Safeguards Apply When Police Stop and Search

Unless you consent, a police officer is not allowed to stop and search you for drugs without a warrant in NSW unless in compliance with  section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Section 21(1) allows a police officer to stop, search and detain you if the police officer suspects on reasonable grounds that you have in your possession or control a prohibited drug or prohibited plant; or have possession or under your control in a public place a dangerous article that is being or was used in or in connection with a relevant offence; or have in your possession or your control anything used or intended to be used in or in connection with a relevant offence; or have in your possession or under your control anything stolen or otherwise unlawfully obtained.

Section 21(2) allows a police officer who lawfully complies with section 21(1) to seize and detain any prohibited drugs or plant in the possession or control of the person subjected to the stop and search.

During a search under section 21, a police officer can also require you to open your mouth to enable it to be searched or to require you to shake or otherwise move your hair if the police officer suspects on reasonable grounds that a prohibited drug or plant is concealed in your mouth or hair. A failure or refusal to comply with this without a reasonable excuse carries up to a $550 fine under section 21A(3).

What is Reasonable Suspicion?

A reasonable suspicion requires the police officer to form in his or her mind something more than a mere possibility but less than a reasonable belief that the suspected person is in possession of drugs at the time. It is a subjective test that requires the police officer to show a factual basis for the suspicion by giving evidence to the court as to the information in the officer's mind and the source of that information. After the court hears this evidence, it must then consider whether or not that information afforded reasonable grounds for the suspicion which the officer formed – this is an objective assessment determined by the court. If the court concludes that it was not reasonable or that the officer didn't have a genuine suspicion altogether, then the search will be deemed to have been illegal or improper.

If a police officer is found to have searched and detained you illegally, a good criminal lawyer will argue to exclude any drugs that were found and seized by the police as a consequence of the illegal search under section 138 of the Evidence Act. The prosecution will then bear the onus to show why the evidence i.e. the drugs seized should still be admitted in evidence against you despite the police officer's illegal conduct.

Similarly if a police officer illegally arrests you, any evidence flowing from that arrest, including any admissions which might have allegedly been made in custody, can potentially be deemed inadmissible as illegally or improperly obtained. Click here for more on the law on  when police can arrest people in NSW.

Freezing Orders (Restraining Orders), Confiscation and Proceeds of Crime Laws (Federal Laws)

Along with discrete criminal offences attached to drug dealing, individuals accused of involvement in the drug trade are also vulnerable to broad powers allowing law enforcement to apply to freeze, seize, and confiscate assets believed to be derived from crime. In many instances these asset seizure powers can be enforced even without a person first being convicted of a criminal offence.

The Federal Proceeds of Crime Act 2002 (Cth) (POCA) applies across Australia regardless of the State or Territory you live in. The laws apply to federal offences and mainly target offences such as drug importation and money laundering. The POCA gives federal agencies such as the Australian Federal Police (AFP) powers to apply to trace, freeze and confiscate property suspected of being connected to crime.

Freezing Orders | Restraining Orders

"Restraining orders" (sections 16-45A POCA) freeze property so it can't be sold or hidden whilst proceedings continue. The subsequent process of investigation and litigation can sometimes take years to resolve, causing huge financial strain when assets such as bank accounts cannot be accessed.

Legal Rights To Protect Property From Being Restrained

Under Section 29 POCA strategies to resist restraining orders include providing evidence of a legitimate source for the assets, for example documents proving business income or employment salary. Even if your legitimate business is largely cash in hand, then evidence of that becomes important. The section deals with excluding legitimately derived assets from being restrained. This is an important provision as clear evidence may exist that certain assets were completely lawfully derived and they should not be captured by overly broad restraining orders.

Under Section 24 POCA, an application can also be made for restrained funds to be released to pay for reasonable living expenses.

Property Forfeiture Orders

Under POCA assets can be confiscated by the government based on conviction-based grounds (sections 91-101) or based on civil forfeiture. If you are convicted of a federal offence, such as drug trafficking or money laundering, property that is subject to a restraining order relating to the offence is forfeited to the federal government. The underlying offence must of course first be proven beyond reasonable doubt in a criminal court. However, in such a case following conviction an application can be made pursuant to Section 94 POCA to exclude certain property from such a final order, including on the basis that the particular property is neither proceeds of unlawful activity nor an instrument of unlawful activity and that the interest was lawfully acquired.

Legal Rights To Protect Property From Being Forfeited

Strategies to avoid forfeiture include the collection of evidence which shows that the assets have been derived by legitimate means such as loans, past employment or business activities and are unconnected to an underlying conviction or criminal activity generally.

The civil forfeiture pathway provides an arguably easier option for federal agencies to confiscate property, as a criminal conviction (where guilt must first be proved beyond reasonable doubt) is not required before assets can be ordered to be forfeited.

The AFP might take this path against you if they believe there is insufficient evidence to secure a conviction in a criminal court but believe there to be sufficient evidence to justify forfeiture of assets on the balance of probabilities. This can lead to you losing assets without ever having been accused of, let alone found guilty, of a criminal offence.

Freezing Orders (Restraining Orders), Forfeiture and Unexplained Wealth Orders Under the Criminal Assets Recovery Act 1990 (NSW)

In NSW, the  Criminal Assets Recovery Act 1990 (NSW) (CARA) operates in addition to the federal POCA. CARA is a State law that allows the NSW Crime Commission to apply to the Supreme Court of NSW for orders including the restraining (freezing) and forfeiture of assets. It usually commences with a freezing order followed by civil proceedings where a forfeiture order can be made in relation to the frozen assets. In CARA proceedings, a criminal conviction is not required in order for forfeiture orders to be made. Instead, the lower standard of the balance of probabilities applies (sections 3 and 4), which is an easier onus to discharge.

Legal Rights To Protect Property

A common tool employed by the NSW Crime Commission is to apply for unexplained wealth orders (sections 26A). This order can compel you to prove that your wealth was acquired lawfully, essentially reversing the onus and placing it on you to justify and account for the assets that you own. In this way, even if the authorities do not have strong evidence about criminal activity, the onus can be shifted to you to explain in detail exactly how your assets were obtained. If you cannot prove your wealth was lawfully acquired it can be forfeited without a link to a criminal offence.

If subject of an unexplained wealth order, it is important that your lawyer help you obtain detailed evidence of the legitimate source of your income. This can be difficult, especially if the assets were obtained many years ago during a time where electronic records were not as common.

Similar to POCA, CARA provides for restraining orders (section 10-21). Affected parties can also seek review of restraining orders, including spouses and business partners whose own legitimate assets may have for example been unintentionally or unreasonably captured by the restraining orders (section 10C).

Once restraining orders are being sought by the relevant authority, and given how debilitating it can be for families effected by them, it is crucial to get in touch immediately with an experienced criminal lawyer. Often if addressed early, these proceedings can be withdrawn or at least negotiated in such a way that substantially less assets risk forfeiture. Exclusions can be sought in relation to restraining orders, limiting the financial hardship you might face. Locating evidence for a legitimate source of the assets is key to successfully defending proceedings under both POCA and CARA.

What Can't Authorities Touch?

Although confiscation laws are very broad, there are some limitations as to what assets Federal and State authorities can seize.

Firstly, both Federal and State schemes do not apply to legitimate income, where it can be proved that money was derived from legal sources.

Secondly, jointly owned assets where an innocent party co-owns part of the asset can limit the ability of authorities to confiscate an entire asset.

Finally, if illicit contributions are minor or incidental to the overall value of an asset, courts may determine that only the portion of the asset directly linked to criminal activity is subject to confiscation. This is particularly relevant in cases where an individual has commingled illicit and legitimate income.

State and Territory Laws and Penalties for Drug Dealing

Each State and Territory in Australia has laws which criminalise the possession, supply (sale), cultivation and manufacture of illicit drugs.

For example, in NSW, the Drug Misuse and Trafficking Act 1985  (NSW) outlines a number of serious criminal penalties for drug offences including:

• The offence of possessing a prohibited drug under section 10 of the Act, carrying the maximum penalty of two years imprisonment and/or a fine of $2,200.
• The offence of supply of a prohibited drug under section 25 of the Act, carrying maximum penalties ranging from two years' imprisonment for small quantities (when heard in the Local Court) to life imprisonment for large commercial quantities.
• The offence of cultivation of a prohibited plant (such as cannabis) under section 23 of the Act, carrying a maximum penalty of up to 10 years' imprisonment for indictable quantities and up to 20 years for large-scale commercial cultivation.
• The offence of manufacturing a prohibited drug under section 24 of the Act, carrying a maximum penalty of 20 years' imprisonment, increasing to life imprisonment for offences involving large commercial quantities.

In many jurisdictions, courts may also exercise discretion to impose non-custodial penalties for less serious drug offences, including non-conviction good behaviour bonds, as well as diversion programs under referrals to Drug Courts for eligible offenders.

Federal (Commonwealth) Law Penalties for Drug Dealing

At the Federal (Commonwealth) level, drug offences are outlined in the Criminal Code Act 1995 (Cth). Section 307.1 to 307.3 of the Code outlines a number of federal drug offences related to the importation, exportation, and trafficking of border-controlled drugs.

The maximum penalties for these offences depend on the quantity of illicit drugs imported or exported, ranging from:

• 10 years' imprisonment for less than a marketable quantity (s 307.3);
• 25 years' imprisonment for a marketable quantity (s 307.2);
• Life imprisonment for commercial quantities (s 307.1).

Unlike State offences, Commonwealth drug importation offences operate under absolute liability regarding the quantity of drugs (section 307.5), meaning an accused cannot argue they were unaware of the precise weight or classification of the substance. However, general defences can be raised including lack of intent and duress.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.