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Possessing a Drug Offence

In NSW, it is an offence to possess prohibited drugs. This is controlled by the Drug Misuse and Trafficking Act, which gives the police powers to stop, search and detain as well as providing severe penalties for any convictions under this Act.

Possession

It is a crime to possess any prohibited drugs, plants and equipment. Other situations are included in this.

Prohibited drugs

It is an offence to possess any prohibited drugs listed in Schedule 1 of the Act, such as cannabis, cocaine, heroin and ketamine.

Prohibited plants

Possessing prohibited plants is also an offence, such as cannabis leaf.

Equipment

It is an offence to possess utensils and equipment, other than syringes, for the administration of a prohibited drug.

Penalties

Summary and indictable offences apply and there are maximum penalties up to imprisonment for life and maximum fines up to $550,000.

The Offence

To be proven of a drug possession offence, it must be shown:

• the accused had a substance that is a drug; and
• the drug was in the possession of the accused.

A drug or a not a Drug

The Crown must obtain a certificate from the Analytical Laboratories who will analyse the substance and determine what it is.

The certificate is admitted into evidence as proof of what the substance is. The substance must be referred to in the Drug Misuse and Trafficking Act.

The Elements

Drug possession must have two elements: physical and mental.

Physical

The person must have de facto possession or exclusive control of the substance. Holding the drug for a short time for purposes of concealment is constituted as possession. It must be proven that the accused had either sole or joint possession; both cannot be alleged. The consequence of this is if it is alleged there was sole possession; the Crown must negate joint possession of the drug among other people.

Mental

The accused must be proven to have knowledge of the substance in their possession. This includes showing there was knowledge of the substance, and that it was a drug. Proof of the belief that the drugs were present will suffice. If a person forgets that they have the drugs in their possession, a conviction is still applicable.

If the knowledge requirement cannot be proven, the charge is dropped. If the physical amount of the drug is so small it is not useable, it does not constitute possession and the charge must be dropped.

Possession of drug equipment

Any person who has any item of equipment in their possession for the use in administration of a prohibited drug is guilty of an offence. It must be proven there is a future use of the implement for the administration of drugs. Past use does not satisfy the criteria. This is a difficult aspect to prove and is normally proven by the equipment being located with the drug to be administered, the accused being found administering the drug, or an admission is made to police.

Possession in certain situations

Share houses

In a shared house situation, the mere finding of the drugs will not amount to possession unless the possibility of sole possession by others is excluded. Mere knowledge of the existence of the drugs, their location in the premises, and sanction of them being there does not amount to possession.

Cars

Where drugs are found in a car, a passenger cannot be convicted of possession without further evidence. Where the owner of a car has the drugs locked in the boot but does not have the keys, prima facie there is no exclusive physical control. Mere possession of the keys to a car does not of itself prove knowledge of the contents of the car, especially if others have access to the car.

Hidden drugs

Where a person hides drugs so effectively that others are unlikely to find them, they are deemed to be in their possession.

Instructions for manufacture or production of prohibited drugs

It is an offence to possess a document containing instructions for manufacture or production of a prohibited drug.

Drug possession charges, and drug offences generally, are very serious. It is advisable to contact your legal representative for advice.

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