Police v MHA: Possess prohibited drug

Possess prohibited drug, Section 10(1) Drug Misuse and Trafficking Act 1985 – stop and check direction, Section 169A(2) Road Transport Act 2013 – power to search, Section 21 Law Enforcement (Powers and Responsibilities) Act 2002 – unlawful search – drugs charges dismissed

Facts:

MHA was parked outside The Star casino at 3am when police officers pulled up near his car. The police officers conducted a stop and check of MHA under powers that they believed they held under the Road Transport Act 2013. After running MHA’s licence details through a police search, the officers found that MHA had several previous drug-related convictions. Following this, police conducted a search of MHA’s vehicle and found a very small amount of illegal substance. MHA was arrested and charged with possession of a prohibited drug.

Outcome:

The defence argued that police had acted outside of their authority when they stopped MHA and when they searched MHA. The power to stop and check a vehicle under the Road Transport Act 2013 can only be exercised “for the purpose of or in connection with exercising other powers under the road transport legislation”. There was no relevant purpose for stopping MHA outside The Star.

The power to search can only be exercised if the police officer has formed a suspicion on reasonable grounds. The defence argued that parking outside of The Star at 3am is not reasonable grounds for a search. The defence also argued that officers cannot reasonably form a suspicion on the basis of prior convictions.

The defence arguments were successful, and both the stop and the search of MHA were found to be outside of police powers. Given that the evidence against MHA was obtained unlawfully (and was therefore inadmissible), the charges against MHA were dismissed.

Contact O’Brien Solicitors on (02) 9261 4281 to set up a free appointment with the defence lawyers in our Sydney office.