With the holiday season fast approaching and the Aussie summer beaming its UV rays down upon us (less so if you happen to live in Melbourne), punters across the country are readying themselves for the excitement of the festival season.
However, for some punters the festival experience won’t consist solely of good times had amongst friends and in the company of their favourite bands and artists. For some, the summer festival season may include a run-in with the police and their trusty dog squad.
If you do get stopped by police whilst attending a music festival, you should have a thorough understanding of your rights and what to do. Compliance with police is important but it’s equally important to protect yourself, to know what to say, to ask the right questions and to understand any potential charges that could be laid against you.
Police & Sniffer Dogs
At most major music festivals, there is a large police presence. Your local police force usually works in tandem with festival organisers and most often, the police are utilising drug detection dogs who are trained to sniff out illicit substances punters may have in their possession.
In recent years, police have begun issuing warnings to punters ahead of major music festivals such as Splendour in the Grass and Field Day, informing them of police presence and the extent of it. These warnings also typically include a reminder that police will be utilising sniffer dogs and targeting punters in possession of illegal substances.
The typical police process is to sweep attendees with drug detection dogs and perform searches on punters who alert the dogs. However, there are laws in each state which dictate the circumstances under which police can perform a search.
In most states, for police to rightfully search you, they must have a ‘reasonable suspicion’ that you have an illegal substance in your possession. If a reasonable suspicion is not established, any evidence discovered may be thrown out should the matter progress to court.
Sniffer dogs play an important role in establishing a reasonable suspicion as they provide police officers with an indication that a punter may be in possession of a prohibited substance, which then leads to a search. However, the police do not need a reasonable suspicion if you consent to a search.
Your Rights
When interacting with police, it’s crucial to know your rights and what statements or actions could potentially incriminate you. Whilst you have the right to remain silent when being questioned by police, there are times when it is important to speak and ask questions of the officers you are dealing with. For instance, you are legally obliged to give police your name and address. It is an offence not to. It is also an offence to give a false name and address.
If police wish to perform a search on you, you should always ask the officer why they wish to do so, particularly if they were not alerted by a drug detection dog. If you believe a sniffer dog did alert the officer(s), you can and should confirm this with them.
If police wish to initiate a search and you believe they do not have a reasonable suspicion to justify it, it’s a good idea to calmly and politely inform them that you do not consent to a search but will otherwise comply with their instructions.
If police find drugs in your possession during their search, you will most likely be placed under arrest. If you are placed under arrest and do not get an opportunity to speak to a legal representative it is advisable to answer “no comment” to every question you are asked other than those relating to you your name, address, date of birth and confirming you understand your rights (as they are read to you).
Relinquishing your right to silence without proper legal advice can result in giving answers that could incriminate you. In some cases, the stress of the situation can lead you to make inaccurate or ambiguous statements. This will be used against you in court.
Being Searched
As well as knowing your rights during interactions with police, it’s important you understand how police must conduct a search and what is and isn’t within their rights should they initiate a search.
The extent of a search will depend on individual circumstances. Generally, a police search at a music festival will involve:
- A request to empty pockets
- A request to remove certain clothing such as shoes, hats, or coats
- A request to open the mouth
- A ‘pat down’ by the officer
Police are not allowed to touch your genital area or breasts unless they have reasonable grounds to do so. Furthermore, strip searches, in which more layers of clothing are removed, are not typically performed outside of a police station unless police have reasonable suspicion that it is necessary. Strip searches do not include the search of body cavities.
Police are obliged to make searches as quick and minimally invasive as possible and respect the dignity and privacy of the person being searched. Police cannot search you and question you at the same time and you are allowed to request that a search be carried out by an officer of the same sex, if possible.
Drug Charges
When discussing ‘drug charges’, we are in fact referring to a range of different crimes involving drugs, only some of which will likely apply if you’re caught with drugs at a festival.
Some of the different drug crimes include:
- Possession
- Trafficking
- Importation
- Manufacturing
Each of these crimes are treated differently and each incurs different penalties. In cases of possession (the most common drug crime at music festivals) the penalty you receive will vary according to many things, but the primary factor is often the amount you are found in possession of.
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), however a person found in possession of quantity of drugs deemed by law to be in excess of a “traffickable” quantity will be charged with trafficking and may be subject to harsher penalties including imprisonment (though other penalties are available depending on the amount you have trafficked and whether you have been in trouble before).
The amount that constitutes a ‘traffickable’ quantity varies between states and between substances. 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.
The way quantities are legally defined and the potential penalties for different drug crimes are outlined in the laws of each state. In Victoria, laws concerning drug prohibition are defined in the Drugs, Poisons and Controlled Substances Act 1981, which you can access online. Have particular regard to Schedule 11 of that act.
Aftermath
If you are charged you will be required to attend court. Once at Court, the prosecution are required to prove beyond a reasonable doubt that you have committed the charged offence. In some instances a person may have a defence which they chose to run. In other instances people chose to plead guilty.
The penalty a person may receive if they are found or plead guilty depends on several factors:
- The seriousness of the charges levelled against them;
- Whether or not they have demonstrated that they have rehabilitated;
- Whether or not they have a criminal history.
If your case does progress to court, you will be given a date to attend and a location, which will most likely be at the Magistrates’ Court closest to where the offence was committed. If your charge is more serious, an ‘indictable’ offence, you will still be required to attend the Magistrates Court initially but you may need to attend a higher court, such as the County or Supreme Court, at a later stage of your case.
If by this point you have still not engaged legal representation, it is highly advisable you do so in order to give your representatives as much time as is possible to prepare your defence. A reputable criminal law firm will help you understand what you are facing and the best possible result you can achieve having regard to the circumstances of your case.
Robert Stary is the Principal of Stary Norton Halphen, one of Melbourne’s most prominent criminal law firms, and has over 30 years’ experience as a criminal defence lawyer.
