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When are you in possession?

Section 6(1) of the Misuse of Drugs Act 1981 states that a person commits a crime if the person, with intent to sell or supply it to another, has in his or her possession a prohibited drug. Schedule 2 of the Bail Act 1982 includes a section 6(1) offence as a serious offence.

For the prosecution to succeed with a charge under sec 6(1) they must prove:

  1. That the accused had possession,
  2. That the drugs are prohibited drugs, and
  3. That the accused had the intention to sell or supply

Whether you can be found to be in “possession” of a prohibited drug requires consideration of a number of factors, including:

Actual possession. It may be the case that the Police allege that a person has been found in physical possession of the alleged drugs, such as when they are in the pocket of a pair of trousers worn by the accused person, found in a vehicle driven by an accused person or a house resided in by the accused person. It is not enough that physical possession alone can be established, the Prosecution must also establish that an accused person had knowledge of the alleged drugs.

Possession requires knowledge. The offender needs to be aware that he or she is in possession of a prohibited drug. You cannot be guilty of possession if someone had hidden drugs in your suitcase without your knowledge. There is no “possession” without awareness of possession. It follows that a common defence to a charge of being in possession of prohibited drugs is that an accused person did not have knowledge of the drugs allegedly found in their possession.

For example, when Police search a house and there are multiple people living under the one roof, it may be the case that the drugs were in fact the property of another one of the tenants at the house and that the accused person had no knowledge of them.

The element of possession also requires knowledge that the substance is a prohibited drug. So, if someone tells you it is baby powder and you could reasonably believe under the circumstances that it is baby powder, you might not be guilty of possession.

To be convicted of the offence, you need to know, or you need to believe that there is a likelihood that there is a significant chance that the substance is a prohibited drug, and not baby powder. To decide whether there was such a belief is a question of fact to be decided by the court or jury.

It is important to note that a person can be found to be in “possession” without actual physical possession. If you exercised some control over the drugs, the court may find that you were in possession. Again this will be a question of fact to be decided by the court but it may situations commonly arise where people are alleged to be in joint possession of drugs, whilst one of the possessors may never have had physical possession of the items.

These people could nonetheless be alleged to have exercised control over the items by virtue of being a joint owner of the items with another. Such an example is one where “control” can be regarded as being exercised by an accused person. It follows that possession need not be exclusive.

More than one person can share joint possession. If you and a friend both exercise control over the premises where the drugs were found, you can both be guilty of possession, provided that the Court is satisfied that you had knowledge of the items.

The prosecution however does need to prove that you had the intention to possess or exercise control the drugs. For example, if you discover drugs in the trunk of your car, and you are driving around in a panic, not knowing what to do and you are stopped and found in possession of the drugs, you won’t be convicted if you can prove to the court that you had no “intention” of possessing the drugs.

You were looking for advice, thinking that your children might be using drugs, or you were on your way to the police station to report the drugs. You had no intention to possess the drugs. As with knowledge or belief, intention is proven by circumstantial evidence.

When defending a charge on the basis that an accused person did not have possession as alleged by the Prosecution, your trial lawyer will often need to have a firm grasp of the DNA evidence being led at trial and any possible pitfalls or opportunities to criticise that evidence. Similarly, a strong understanding of Police forensic procedures and continuity of evidence is often fundamental to the proper preparation of the case for trial.

What is a prohibited drug?

A  “prohibited drug” is defined as a drug of addiction, a specified drug, or any drug listed in Schedule I of the Misuse of Drugs Act. Commonly charged drugs include methamphetamine, heroin, MDMA, cocaine and cannabis.

Intent to Sell and Supply

The Act draws no distinction between sell and supply. It is an offence if you possess drugs with the intention to distribute the drugs. No money needs to change hands. It is, however, important to note that the distinction between sell and supply is an important one for sentencing purposes. For example, a person found guilty of being in possession of a prohibited drug with intent to supply in circumstances where the intended supply was sharing with friends as opposed to selling for profit, that distinction will be highly relevant to the determination of the appropriate sentence.

A common defence is that, whilst the person accepts that they had possession of the drugs, they did not have the intent to sell or supply. Depending on the amount of the drugs found, the Accused may bear the onus of proving on the balance of probabilities that they did not have a presumption to sell or supply and that the drugs were purely for personal use.

A submission might be made by the barrister at trial relating to the lack of any indicia of drug dealing on the Prosecution’s evidence, and similarly, an accused person might give evidence that they simply possessed the drugs for their own personal consumption. They may outline their usual amounts of consumption as evidence of the drugs being used on a personal basis.

The quantity of the drugs in your possession matters

The amount of the drug found in your possession is not an element of the offence; although it will be highly relevant to sentencing. It is also relevant to:

  1. The Court in which the matter will be heard, whether for trial or sentencing; and
  2. Whether the Accused person will have to prove on the balance of probabilities that they did not intend to sell or supply the drugs (provided that the Court or Jury is satisfied that the accused had possession of the alleged drugs).

If you possess an amount of drugs over a specified weight or quantity, it leads to a rebuttable presumption under section 11 of the Misuse of Drugs Act 1981 that you possessed it with the intent to sell or supply. The quantities are specified in Schedule 5 of the Act. For example:

  • Heroin: 2gm
  • Amphetamine: 2gm
  • Cannabis: 100gm
  • Cocaine: 2gm

So if you are found in possession of drugs that weigh more than the quantity specified in Schedule 5, the presumption applies and the Prosecution do not have to prove that you had an intent to sell or supply. The presumption is that you have more than what you would have for personal use and you are therefore presumed to possess the drug with the intent to sell or supply (if the Magistrate or Jury is satisfied that you did in fact possess the items). This presumption woill be rebuttable, meaning that an accused person can prove to the contrary. The onus of proof is then upon an accused person to prove on the balance of probabilities that they did not have intent to sell or supply.

In which court will the matter be heard?

The amount, or weight, of the drug found in your possession will determine which court will hear your matter. Schedule 3 of the Misuse of Drugs Act 1981 lists quantities of drugs. If the amount of drugs found is less than the specified amount in Schedule 3, the matter can be dealt with in the Magistrates Court, otherwise it must be tried on indictment in the District or Supreme Court.

For a full list of quantities please see Schedule 3 and 5 of the Misuse of Drugs Act 1981. Ask your lawyer to explain the consequences of the quantity found in your possession to you. Possession of Drugs with intent to sell or supply is always a serious offence and it follows that if convicted, you face serious penalties. It is important that you get sound legal advice and a lawyer to assist you with your case.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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