Drug Possession

Examples of drug possession, maximum penalty and available defences

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Transcript:
Drug possession is an offence under Section 10 (1) of the drug misuse and trafficking act 1985. It comes with a maximum penalty of two years imprisonment and or a fine of up to twenty two hundred dollars. It's a summary offence, which means it stays in the local court doesn't go up to the district or the Supreme Court. Now prohibited drugs are listed in the schedule to the drugs act the drugs misuse and trafficking act, but the most commonly charged are MDMA or ecstasy, amphetamines, for example speed, heroin, cocaine, and of course cannabis. Now to have physical custody or control you don't have to own the drug, it's enough that you knew or believed that there is a significant or real chance that the drugs are on, or with you, or in your control. Now examples of drug possession include holding drugs for a friend, or having drugs in your bedroom even when you're not there, or not getting rid of drugs after you realise that they've been planted upon you, or not checking your luggage if you believe that someone who gave you luggage to hold may have drugs inside that luggage. Examples that are not drug possession include if someone has planted drugs on you and you don't know that they're there, or getting rid of drugs as soon as you're aware that they've been planted upon you, or not finding drugs after you suspect that they've been planted on you, but you have a good look and you can't find any drugs there. Defences to drug possession include illegal search. Now police just can't come up and searching for any reason, they must have a suspicion on reasonable grounds that you have drugs on you at that particular time. Now that's not a load test there has to be something more than just a suspicion and something less than knowledge. There has to be a suspicion on reasonable grounds that you had drugs on you at that particular time. If your lawyer or you believe that you may have been illegally searched a letter should be written to the local area commander or police to point this out, it should also say that if the charge isn't withdrawn and we win the case in court we will ask for our legal costs. If they don't withdraw the case then you should have a lawyer that can fight to have that evidence thrown out in court. The second type of defence to drug possession is called a lack of exclusive possession, this is for example when drugs are found in a common area, such as your lounge room, or even in the boot of a car that doesn't belong to you. That is it's an area that can be accessed by a number of people in than situation the prosecution may not be able to prove that you possess those drugs exclusively, and if they can't prove that and they can't prove that beyond reasonable doubt then the case has to be thrown out of court. The next one is a lack of knowledge. It's not actually a defence but if the prosecution cannot prove the elements of the offence of drug possession and one of those elements is you knew or were reasonably aware essentially that the drugs were there, then the case again has to be thrown out of court. These are the defences. Now if you're charged with drug possession and were of the view that it was a legal search that you did have exclusive possession, you don't have any other defences, and you want to plead guilty then your lawyer should work hard to get you what's called a section 10 dismissal or conditional release order. That means no conviction and there are a range of ways to be able to get a section 10 dismissal or conditional release order in court and an experienced lawyer will be able to guide you towards that path and persuasively present your case in court.