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
Section 9 of the Drug Misuse Act 1986 states:
“A person who unlawfully has possession of a dangerous drug is guilty of a crime.”
What does the prosecution have to prove?
To find you guilty of possessing dangerous drugs, the prosecution would have to prove the following elements beyond a reasonable doubt:-
- That you unlawfully (i.e. without a defence or an excuse – see below for more);
- Had possession (see below for more);
- Of a dangerous drug (see below for more).
What does possession mean?
The prosecution must prove that the accused had both “knowledge” and “control” of the drug in order to prove possession. Therefore, it is sufficient that the prosecution proves you had knowledge of the existence and presence of the drug and you were able to exercise your control over it.
Can I still be charged with possession even if I didn’t have the drugs on my person?
Yes, you can. The prosecution only need to prove that you had the knowledge and control of the drug. The control component does not require that you actually exercise your control by having it on your person. You are able to be charged if you are physically separate from the drug but you have control over it in the sense that you can physically have it at any time.
What if the drugs were found in my home – is that still possession?
Section 129(1)(c) of the Drugs Misuse Act says:
Proof that a dangerous drug was at the material time, in or on a place of which that person was the occupier or concerned in the management or control of, is conclusive evidence the drug was in the person’s possession, unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.
This situation would apply if the drugs were found somewhere other than on a person or in their direct control (i.e. the drugs were found in a living room or shared area). Therefore, if you are the occupier of a house (i.e. you live there), then the Court can conclude that you had possession of the dangerous drugs.
The onus is reversed in this situation onto the accused to prove that they did not have knowledge of (or had any reason to suspect that) the drugs in their house.
What are Dangerous Drugs?
A dangerous drug is a thing that is listed in either Schedule 1 or Schedule 2 of the Drugs Misuse Regulation 1987.
Schedule 1 lists more serious drugs, including (but not limited to):-
- Lysergide (LSD);
- Methylamphetamine; and
- 3,4-Methylenedioxymethamphetamine (MDMA) (Ecstasy).
Schedule 1 also lists steroid drugs.
Schedule 2 lists over 100 less serious drugs. Some of these drugs are only listed if they are not in specified type of medicinal preparation. Drugs listed in Schedule 2 include (but are not limited to):-
- Opium; and
- Psilocybin (magic mushrooms).
A dangerous drug can also include things that:-
- have a chemical structure that is substantially similar to the chemical structure of a dangerous drug in Schedule 1 or 2; or
- have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2; or
- is intended to have a pharmacological effect that is substantially similar to the pharmacological effect of a dangerous drug in Schedule 1 or 2.
What is the Maximum Penalty for Possession of a Dangerous Drug?
The maximum penalty for possessing dangerous drugs varies depending on the type of drug, the quantity of the drug, and whether there are circumstances to constitute a crime.