Possessing Things – S10 Drugs Misuse Act

The following drug charge article was written by a practicing criminal lawyer with experience in drug charges. For information on other drugs charges, visit our Drug Charges home page.

What the law says

This section creates offences for possessing things used in connection with a crime involving dangerous drugs. It is a crime or an offence to:

1. possess anything for use in connection with the commission of a drugs crime; or that the person has used in connection with such a purpose; (section 10(1) of the Drugs Misuse Act)
2. unlawfully have in your possession anything (not being a hypodermic syringe or needle)-
   • (a) for use in connection with the administration, consumption or smoking of a dangerous drug; or
   • (b) that the person has used in connection with such a purpose; (section 10(2) of the Drugs Misuse Act)
3. supply a hypodermic syringe or needle to another, whether or not such other person is in Queensland, for use in connection with the administration of a dangerous drug. (Medical practitioner, pharmacist or person or member of a class of persons authorised so to do by the Minister administering the Health Act 1937 are exempted) (section 10(3) of the Drugs Misuse Act)
4. have in your possession a hypodermic syringe or needle and fail to use all reasonable care and take all reasonable precautions so as to avoid danger to the life, safety or health of another. (section 10(4) of the Drugs Misuse Act)
5. have in your possession a hypodermic syringe or needle that has been used in connection with the administration of a dangerous drug and fail to dispose of it in accordance with the procedures prescribed by regulation.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

1. The accused had in his or her possession (for section 10(1),(2), (4) and (4A) offences only). Possession means physical control or custody. You do not possess a thing unless you have it or else can actually exercise dominion over it. Knowledge is also an element of possession under section 10. If a possessor does not hold a thing for the purpose of its being used by someone else in connection with the commission of a crime, an offence under section 10(1)(a) is not established.
2. Supply (section 10(3) only). This is defined in section 4 of the Drugs Misuse Act to include giving, distributing, selling administering, transporting and supplying or offering to or doing acts preparatory or in furtherance of the same.
3. That the thing is “in connection with” or a relationship with; the commission of an offence or crime under the Act (section 10(1) or the consumption (section 10(3), (4) (4A)) dangerous drugs.
4. In relation to section 10(4) failure to take reasonable care and endangering the life, health and safety of a person.
5. In relation to section 10(4A) failure to dispose of the needle (etc) in accordance with appropriate regulations.
6. For subsection (1), the dangerous drug to which the commission of a crime relates is the dangerous drug directly or indirectly involved and in relation to which proof is required to establish the commission of the crime.

Example–

Suppose a person is guilty of a crime against this section because he or she has in his or her possession equipment for use in connection with the commission of a crime defined in section 8 of unlawfully producing a dangerous drug. That dangerous drug is the dangerous drug referred to in the penalty for subsection (1).

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

The maximum penalty for breach of section 10(1) of the Drugs Misuse Act 1986 (ie. Possessing anything for use or using anything in connection with the commission of a drugs crime) is 15 years imprisonment. For all other offences created under section 10 the maximum penalty is 10 years imprisonment.

Which court will hear the matter

Under section 13 of the Drugs Misuse Act 1986 certain (less serious with maximum penalties of less than 15 years) offences can be dealt with summarily in the Magistrates Court.

These offences may therefore be dealt with in the Magistrates Court or in the Supreme Court

Possible defences

Other possible defences to this offence include but are not limited to:

1. Not having sufficient control of the thing
2. Having no knowledge of or reason to suspect the connection to the offence.
3. Duress
4. That the thing was not used or was not in possession for use in connection with an offence.