In Australia, it is illegal to be in possession of a drug of dependence. Depending on the quantity of the drug located on you by Police, you may also be charged with drug trafficking, which is a very serious offence and commonly results in a sentence of imprisonment.  

If you have been charged with drug possession offences, there may be a legal defence available. Common defenses include factual defenses such lack of knowledge or intent if drugs are found in your home. Duress may also be used as a defence if you were threatened to hold the drugs on behalf of another.

It is important to note that for police to substantiate a claim of illegal drug possession, the onus is on them to prove the elements beyond a reasonable doubt.

What is Drug Possession?

Drug possession is an indictable offence under section 73 of the Drugs, Poisons and Controlled Substances (DPCS) Act 1981. Although it is usually prosecuted through the Magistrates’ Court. There are two avenues by which the prosecution can prove drug possession. Firstly, they can rely on common law principles. Common law principles are principles that have been developed from cases that have come before. If, for example, the Court of Appeal has ruled in an area of law, that becomes common law. Alternatively, they can rely on the statutory definition and associated ‘deeming’ provisions in section 5 of the DPCS Act to prove drug possession.

Common Law Drug Possession

In accordance with the common law, a person is in possession of a drug if they have physical control or custody of the drug. There are two key elements that the prosecution must prove to establish drug possession. These are: a) that the person knew of the presence of the drug and b) that the person intended to possess the drug. Having custody of the drug may be enough evidence to substantiate possession, including the requisite mental element (intent). This is because an inference of knowledge may be drawn from the surrounding circumstances (i.e., if the drug was located on a person during a police search or there are text messages which show that suggest you knew that you were in possession).

Statutory Drug Possession

 Possession is described in section 5 of the DPCS Act. Pursuant to this section, a person is deemed to be in possession of drugs if:

  • the drugs are on any land or premises occupied by the person; or
  • the drugs are used, enjoyed or controlled by the person in any place whatsoever.

In accordance with this section, prosecution will be able to substantiate a charge of drug possession if either of these elements are made out, “unless the person satisfies the court to the contrary”. The wording of this section is critical to an accused’s defence prospects, as it activates a ‘deeming provision’, whereby the burden of proof is shifted to the accused to prove on the balance of probabilities that they were not in possession of the drug. This would involve the accused establishing that they were unaware of the presence of the drug in their custody or that they did not intend to have possession of the drug.

There are several situations where an accused may be able to dismiss statutory possession. These include where the accused shares the property where drugs are located with another person (for example, a co-tenant or partner) or situations where the accused in the occupier of a hotel room where drugs are found (i.e., the previous occupier left the drugs there without the accused having knowledge of this). If an accused is in a situation such as this, they must satisfy the court that they did not know the drug was there, or, that they did not intend to possess it.

Penalties for Drug Possession

The penalties associated with drug possession vary significantly depending on the substance that is found, and the quantity. Depending on the quantity, the prosecution may allege that an individual was trafficking the drug. However, it is important to note that the maximum penalty for possession of any drug where the possession is not related to trafficking is a fine of 30 penalty units, or imprisonment of one year. This is outlined by section 73(1)(c) of the DPCS Act. For the lower of the penalties to apply, the accused must satisfy the court on the balance of probabilities that the possession was not related to trafficking. It is therefore important that an individual charged with possession seek expert criminal lawyers, such as Galbally Parker, as they may be at risk of a higher penalty if the court is not satisfied that the possession was not related to drug trafficking.

Defenses Available for Drug Possession

A reliable defence commonly used for drug possession charges is that the accused was not aware of the presence of drugs in their custody. As the onus is on the police to substantiate intent, they must prove that an accused knew of the existence of drugs within their premise. Where a car or house is used by multiple people, it may be that the police cannot establish that it was the accused who had possession of the drugs, or that they did not intend to possess the drug.

An additional defence may be duress. The defence of duress involves a serious threat to an accused or their family, involving death or serious injury. If an accused raises the defence of duress, they must establish evidence of the making of an actual threat; that the threat was of death or serious injury; that the threats were of such gravity that a reasonable person in the circumstances would have acted in the same way; that the accused committed the offence because of the threat. It is important to note that the defence of duress has a high threshold, and the accused bears the onus of proof the establish that they were forced to commit the criminal act (i.e., possess a drug of dependence) because of the threat made against them.  

How Galbally Parker Drug Lawyers Can Help

Ultimately, whether there is a defence available to you depends on your particular circumstances and the circumstances of the alleged offending. It is imperative that, before making any decision in relation to how to plead to drug possession, you speak with an experienced drug possession lawyer at Galbally Parker Lawyers. We regularly appear in drug matters before all Courts in Victoria and our criminal defence lawyers are best positioned to provide you with advice on what defences may be available to you and what your options are when dealing with your drug possession matter.