With festival rules firmly in the sights of the authorities these days, many young Australians are worried their festival fun may be interrupted by a run-in with the police.
If you are stopped by police at a festival it is important to understand your rights under the law. With that in mind, here are five legal facts all party goers should know before they enjoy their next festival.
Police must have reasonable suspicion to search you at a festival
Unless the police are in possession of a warrant they can only search you if they have a reasonable suspicion or you consent to being searched. So in short, unless the police have a reasonable suspicion that you are in possession of an illicit substance they are not permitted to search you.
Very often, police establish a ‘reasonable suspicion’ by using drug detection dogs who have been trained to detect illicit substances and alert officers when they have found them. Accordingly, if a sniffer dog alerts an officer that you have drugs in your possession a reasonable suspicion will likely have arisen and they will then be permitted to search you.
Whilst the use of sniffer dogs is one method that police use to establish a reasonable suspicion, it is not the only method. Police can also search you if they have observed you ingesting, buying, or selling drugs.
Under some circumstances, police may be able to establish a reasonable suspicion based on your behaviour. For example, if you are acting in a manner which suggests you are under the influence of illicit drugs then they may have grounds to search you.
If police have indicated that they wish to perform a search, you can and should ask them why. Being calm and respectful is important but that doesn’t mean that you are obliged to simply allow them to search you without asking why. For instance, if you believe an officer was alerted by a drug dog, confirm this with them. However, if you do not believe a drug dog was involved, then unless the police have formed a reasonable suspicion based on their observations of you and your behaviour, then it may they have no lawful basis to search you. If you are about to be searched always ask the police why as it may be that they do not have a proper basis to search you.
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You do not need to consent to the police searching you when they do not have a reasonable suspicion. For example, if, having regard to the matters detailed above, you do not believe an officer has reasonable suspicion to search you, it is best to inform them that you do not consent to a search. Again be calm and respectful and otherwise comply with their instructions but you are under no obligation to consent.
Remember once you consent to a search at a festival the police are permitted to search you even if they do not have a reasonable suspicion. Only allow yourself to be searched once the police have conveyed to you that they have a reasonable suspicion, otherwise do not consent to being searched.
You have the right to remain silent, but…
Not giving your name and address when requested by police is an offence, as is giving a false name or address. When being questioned by police, it is otherwise advisable to exercise your rights and remain silent. This can be achieved by answering “no comment” to all questions asked of you. To be clear, these are all questions other than those regarding your name, address and date of birth.
It is also advisable to let the police know you understand your rights when they outline them to you. However, once you have provided the police with your details and made it clear you understand your rights you have the right to remain silent.
While we acknowledge there are circumstances in which you should speak to the officers If you are unable to speak to a lawyer first the safest thing to do to protect yourself is to answer “no comment” to the questions you are asked.
There are limits to a police search
Just as there must be certain criteria met before police can initiate a search at a festival, police must perform each search in a lawful manner. After establishing reasonable suspicion, police must ensure each search respects the privacy and dignity of the person being searched.
A police search will typically include a request to empty pockets and remove certain clothing, such as shoes, hats, or coats, as well as a request to open your mouth and a ‘pat down’ by the officer. A strip search will only be conducted outside of a police station if there are reasonable grounds to do so and does not include the search of body cavities.
Police are obliged to make searches as quick and minimally invasive as possible and there are certain things they cannot do, such as:
- Touch you without reasonable grounds to do so
- Touch your genital area or breasts without reasonable grounds to do so
- Search you and question you at the same time
- Strip search you in public
There are different types of drug charges
There are many different drug-related crimes, but the two most common at a music festival are possession and trafficking. Possession refers to having an illegal substance on you or under your control and trafficking refers to selling an illegal substance or possessing a quantity of an illegal substance that is of an amount that is deemed by legislation to be of a “traffickable” quantity. These amounts vary according to the type of drug and the laws of the state where you are. For example, a traffickable amount of cannabis in Victoria is not the same as a traffickable amount in NSW and a traffickable amount of cannabis is not the same as a traffickable amount of MDMA/ecstasy.
It therefore follows that if you are not actually caught selling drugs, the primary factor to determine whether or not you will be charged with trafficking drugs is the amount you have in your possession. Some other important factors in determining what you will be charged with are:
- Whether or not you are in possession of items associated with trafficking (e.g. scales, multiple zip-lock bags, a tick book)
- The amount of money you have in your possession (being in possession of a large amount of money often supports an allegation of trafficking)
There are different penalties in each of our states for possession and trafficking, but generally speaking trafficking a drug s is dealt with more harshly than possessing a drug. Further to that the range of penalties for drug charges vary greatly. For example, in Victoria being caught with a ‘small’ amount of cannabis can result in a caution (warning without being charged) or a diversion (being required to go to Court but receiving a penalty that does not result in a criminal record), whilst trafficking cannabis can result in being imprisoned (though other penalties are available depending on the amount you have trafficked and whether you have been in trouble before).
You should get a lawyer
It is advisable to seek professional legal assistance as soon as possible, especially if you are taken to a police station for questioning. Always ask the police if you can call a lawyer before the questioning commences. If once the questioning commences and you have not called or been given the opportunity to call a lawyer, remember that the questioning can be suspended so as to give you that opportunity.
If you cannot speak to a lawyer then, other than providing the police with your name, address, date of birth and confirming with the police that you understand your rights (as they are read to you) answer “no comment” to every other question asked of you.
Remember when under pressure many people unintentionally give information that could be inaccurate or vague. Such information will be used against you at Court.
If you have not been able to speak to a lawyer at the time of your interview they can still help you once your are charged and required to go to court.
While the earlier a lawyer becomes involved in your case the better you are able to protect yourself it is never too late to engage the services of a lawyer. An effective legal representative’s role is to assist you in defending yourself against the state and working toward you achieving the best possible outcome having regard to the circumstances of your case. Sometimes this means achieving an acquittal, other times it means achieving a lesser penalty than you otherwise would have received.
In short, an effective legal representative will help you understand where you stand and what you can achieve.
Robert Stary is the Principal of Stary Norton Halphen, one of Victoria’s most prominent criminal law firms, and has over 30 years’ experience as a criminal defence lawyer.
