This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Possess Drugs of Dependence or Prohibited Substances
In the ACT it is an offence to be in possession of drug of a dependence or prohibited substance. The maximum penalty is a fine of 50 penalty units and/or 2 years imprisonment.
The Offence of Possessing a Drug of Dependence or Prohibited Substance
The offence of possessing a drug of dependence is contained in Section 169 of the Drugs of Dependence Act 1989 which states that a person shall not possess a drug of dependence (unless authorised to do so under the Medicines, Poisons and Therapeutic Goods Act 2008).
Well-known examples of drugs of dependence include:
- cocaine;
- methylamphetamine (meth/ice);
- methadone;
- morphine;
- oxycodone; and
- remifentanil.
The maximum penalty for this offence is a fine of 50 penalty units, imprisonment for 2 years or both.
The offence of possessing a prohibited substance is contained in Section 171 of the Drugs of Dependence Act 1989 which states that a person shall not possess a prohibited substance (unless authorised to do so under the Medicines, Poisons and Therapeutic Goods Act 2008).
Well known examples of prohibited substances include:
- coca leaf;
- DMT;
- heroin;
- MDMA (ecstasy); and
- cannabis.
The maximum penalty for this offence is a fine of 50 penalty units, imprisonment for 2 years or both.
However, if the offence relates to possession of cannabis and the quantity of cannabis is 50g or less, the maximum penalty is a fine of 1 penalty unit. Alternatively, this offence may be dealt with by way of a Simple Cannabis Offence Notice where the penalty is simply a fine of $100 and there is no requirement to attend court.
What is Possession?
The prosecution must prove all of the following beyond reasonable doubt:
- the substance was in your custody or control; and
- you knew that you had custody or control of the substance; and
- that substance was a drug of dependence or a prohibited substance.
In order to have custody you must have immediate physical possession of the drug of dependence/prohibited substance. For example, you have a bag of cocaine in your pocket.
In order to have control you must have a right to do something with the drug of dependence/prohibited substance. For example, you are at a party and you take a bag of cocaine out of your pocket, place it on the table and walk out onto the balcony to join your friends. At this point you have lost custody of the cocaine, however you still have control as you have the right to keep, consume or share the cocaine.
In each of these circumstances you must also have knowledge that you had custody or control of the cocaine. For example, if a friend placed the cocaine in your bag without you realising, you may have custody of it but you do not have the requisite knowledge to be guilty of the offence.
What Actions Might Constitute Possession?
Because of the broad interpretation of “possession”, you can possess something even if you only hold it momentarily. For example, if you have been given a bag of cocaine to mind for a friend while he goes to the shops and the police arrive, you are in possession of the cocaine even if it has only just been given to you.
Examples of what would NOT constitute possession:
- You own an apartment that is rented out. The tenants have been found to have cocaine at the apartment but you were unaware until you were contacted by police. This is not possession because although you own the apartment, you do not own all of the things in it and do not have any right to use and/or sell the contents.
- You live in a share house with 3 other housemates. Police find cocaine in the living room which is a shared space that all 4 of you use regularly. Unless someone makes a statement to police admitting that the cocaine is theirs, or implicating someone else, it is likely that no one will be charged because police cannot determine which one of you had custody or control of the cocaine.
- You host a party at your house and you know some guests had left a bag of cocaine on your outdoor table. You called them the next day and asked them to collect it but before they get to your house, the police arrive. You tell police that you were waiting for someone to collect it. In this case you have knowledge that the cocaine is there, however you have not laid claim to it and have not done anything to exercise control over it.
What the Police Must Prove
To convict you of possessing a drug of dependence or prohibited substance, the prosecution must prove each of the following matters beyond reasonable doubt:
- that you had possession of the substance; and
- that substance was a drug of dependence or a prohibited substance; and
- you were not authorised under the Medicines, Poisons and Therapeutic Goods Act 2008 to be in possession of it.
However, if you possessed the drug of dependence/prohibited substance for the purpose of selling or supplying it to someone else, you will likely be charged with Sale or Supply of a Prohibited Drug.
Possible Defences for Possessing a Drug of Dependence or Prohibited Substance
The common ways to defend this charge are:
- to maintain your innocence if you did not commit the act; or
- to argue that you did not have possession of the substance; for example, that you had custody but did not know you had custody of it, as in the example above of the cocaine placed in your bag without your knowledge; or
- to argue that the substance was not a drug of dependence or a prohibited substance; or
- to argue that you were authorised under the Medicines, Poisons and Therapeutic Goods Act 2008 to be in possession of it.
Which Court Will Hear Your Matter?
This is a summary matter and will be dealt with in the ACT Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.