The Law Handbook 2024
142 SECTION 3: Fines, infringements and criminal law When a search uncovers a volatile substance or an item used to inhale a volatile substance, before seizing the substance or item, police officers must ask the person searched why they possess it (s 60I DPCS Act). This is intended to assist police officers in deciding whether there are reasonable grounds for seizure. Police officers do not need to comply with the requirements in sections 60H–60I of the DPCS Act if they believe on reasonable grounds that the person will not understand because of intoxication or because it is otherwise impractical to comply with these requirements. Apprehension and detention Police officers may apprehend and detain a person if they reasonably believe the person is under 18 and is inhaling or has recently inhaled a volatile substance and is likely, by act or neglect, to cause immediate serious bodily harm to themself or to some other person (s 60L DPCS Act). There is no requirement that a search be conducted first or that substances or items be seized or handed over. Police officers must, if possible, inform a detained person that they have not been arrested for an offence but that they are being detained to prevent them from harming themself or others. A person detained under section 60L of the DPCS Act must be released immediately if they are found to be over 18 years of age, or when the police no longer have grounds for believing that person recently inhaled a volatile substance or will cause immediate serious bodily harm to themself or others (s 60M). A detained person must, as soon as practicable, be released into the care of a person who police officers reasonably believe is suitable to take care of the detained person and who consents to taking care of them (e.g. a parent, guardian or other adult family member, or an employee of an appropriate health or welfare agency). Police officers have a wide discretion on this point to respond appropriately to a variety of circumstances. If police officers have taken reasonable steps to do so but have been unable to release a person into the care of another suitable person, they may continue to detain the person unless grounds for detention no longer exist. A person detained under section 60L of the DPCS Act must not be detained in a police jail, cell or lock-up (s 60M(6)). Police officers may not interview or question a detained person in relation to any known or alleged offence during this detention (s 60M(7)). Return of property and police records As property may be seized that is not actually prohibited, the DPCS Act also makes provision for the return of such property. Police officers must inform the person from whom property was received or seized that they have the right to have it returned (s 60N). The person from whom the property was seized or received may apply to have the property returned at the relevant police officer’s place of duty within seven days of the receiving or seizure. However, property can only be returned to a person under 18 years of age if they are accompanied by a parent or guardian. Police officers can dispose of, or make safe, any received or seized property if it is a risk to health or safety (s 60O DPCS Act). Any property that is not returned within seven days is forfeited to the Crown (s 60P). Police officers must make a written record of searches, receipts or seizures of property, apprehensions and detentions, and the disposal or making safe of such property (s 60Q). A person subject to these police powers may, within one year of the relevant action, request a copy of the record of action (s 60R). Jurisdiction There are two types of hearing process: 1 summary hearing : a final determination before a magistrate with a right of appeal to a County Court judge; and 2 indictable hearing : a trial or indictment before a County or Supreme Court judge and jury, generally following a committal proceeding. (See Chapter 3.7: Which court for which crime?, for an explanation of hearings.) Most state offences can be heard as indictable offences or summarily, but some are strictly indictable. Summary of penalties The DPCS Act imposes a complex structure of penalties. The penalty imposed depends on the quantity of the drug, the purpose of possession, and the nature of the substance. Penalties also vary
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