Green tea mistaken for drugs
Two Sydney women imprisoned for five months after ginger tea shipment mistaken for drugs
Two Sydney women are suing authorities after spending more than five months behind bars on suspicions of importing drugs – only for the ‘drugs’ to eventually be proven to be nothing but green tea.
In January 2021, a mother and daughter from Greenacre in Sydney were both arrested and charged with importing a commercial quantity of drugs – an offence which carries as a maximum penalty life imprisonment. Connie Chong and Melanie Lim ordered a shipment of what they believed to be ginger tea from China. But the shipment aroused the suspicions of the Australian Border Force and a preliminary test of the tea returned a positive result for drugs. The police then raided their Greenacre home where they found more drugs and the pair were arrested and charged.
Although they were arrested in January 2021, the substance imported from China wasn’t sent off for a formal test until April 2021 and then 3 months later in July 2021, the formal test revealed that the ginger tea contained no trace of drugs. Therefore, both women served five months behind bars before their charges were dropped.
Now the pair are suing for damages, with their barrister Stephen Boland describing the incident as “one of the most extraordinary cases of injustice” he has seen. Prosecutors are now refusing to pay the women’s court costs and the case will continue to be heard in court.
Who conducts drug testing in Queensland?
Virtually all law enforcement organisations, whether it is at the federal level, such as the Australian Federal Police or Australian Border Force, or at a state level, such as the Queensland Police Service or the New South Wales Police Force, have access to special equipment and facilities to scientifically test substances to determine whether or not they contain illegal drugs.
Before the evidence that a substance does or doesn’t contain any drugs can be introduced into court, the substance must be formally tested at an approved testing facility. In Queensland, that facility is known as the Forensic and Scientific Services (FSS).
FSS is part of Queensland Health and provides specialist scientific and medical analysis and independent expert advice in the state of Queensland. It is sometimes referred to as the ‘John Tonge Centre’. They are part of the government response to threats to public health, threats to the environment, epidemics, civil emergencies, criminal investigations and coroners’ inquiries into reportable deaths. Additionally they provide services to private and public sector clients in forensics, public health and environmental science. Services include: police services, DNA profiling, identification of deceased persons and forensic chemistry services including blood alcohol and drug analysis.
What is the difference between a ‘formal test’ and a ‘preliminary test’?
A formal test
A ‘formal test’ is the only test that is admissible in court, because it is conducted under very strict and scientific settings. These tests are extremely accurate and are able to not only able to identify whether or not a substance contains drugs – they are also able to determine the purity of the drug, to a tenth of a percent. It is conducted by a qualified chemist who will then produce a certificate, known as a ‘drug analysis certificate’, setting out the:
- gross weight of a substance;
- whether or not any dangerous drugs have been detected;
- the quantity of the dangerous drug; and
- the overall purity of the dangerous drug as compared to the whole substance.
The significant issue with formal tests is that they take a very long time to conduct, in most cases an average of six months. This waiting period is often very difficult for people who are awaiting the outcome while they are facing criminal charges because they often don’t understand why there is such a significant delay. Our understanding is that the delays are caused due to a large backlog of testing at the FSS.
A preliminary test
Obviously law enforcement officers do not sit and wait until the formal testing is completed before they will charge a person. If that were the case, by the time the formal testing results were provided the person may have long fled. They therefore need to be able to quickly establish whether or not a substance is likely to be dangerous drugs. And that is by way of a preliminary test.
A preliminary test, also known as a ‘presumptive test’, is a very quick (often instant) way of testing substances to determine whether or not they contain any dangerous drugs. It is usually conducted with a ‘Nik’ test or a ‘Trunarc’ test.
A ‘Nik’ test is a small clear pouch containing a reactive agent. If a law enforcement officer suspects a substance to contain dangerous drugs, they simply place a small quantity of the substance into the pouch, break the capsule containing the clear reactive agent and then see if the agent changes colours. The mixture will then turn pink, purple of orange if the substance contains opium (heroin), codeine or methamphetamines respectively.
A ‘Trunarc’ test achieves the same thing, although in a different way. It is a small handheld device into which a small quantity of the suspect substance is inserted and the isotopes of the substance analysed to determine whether or not it contains dangerous drugs.
A preliminary test is not admissible as evidence against a person as only a formal test will be sufficient. It is simply a tool of convenience, although it can be used simply for the purposes of initially charging a person or at a bail hearing.
In the case of the two Sydney women, it was a preliminary test that was relied upon and the formal test ultimately proved the preliminary test to be wrong. This would not have been a major issue if the women had been granted bail when they were charged in January and in fact highlights the importance of bail.
In our next article we will discuss the importance of bail and the factors that are considered by a court in determining whether or not to grant a person bail. Click here to read this article.
If you’re needing advice or assistance with legal matters (including understanding your legal obligations), Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.