Defences Against Drug Related Charges

If you have been charged with a drug related offence, you may have a valid defence. A defence either challenges the elements of a particular offence that the Prosecution is required to prove beyond a reasonable doubt, has been developed by case law (precedent), or otherwise provides a lawful reason or justification for a person’s actions. Mounting a successful defence can either lead to an acquittal which is otherwise known as a not guilty verdict or in some instances, a downgrade of the offence.

There are many reasons that a person may be found not guilty of drug offences by the Court. These include, but are not limited to:

• Insufficient evidence to prove a person committed the offence;
• The Police acted illegally or improperly and therefore the evidence that the Prosecution is relying on the prove the offence is inadmissible;
• The accused has a valid legal or factual defence.

Common Defences against a Drug Charge

Lack of Knowledge

If the Prosecution is unable to prove that you knew that the prohibited drug was in your possession, they will fail to establish the essential element of ‘knowledge’ and accordingly, will not be able to prove the offence. For example, if your friend had temporarily given you their backpack to hold whilst they went to the toilet and unbeknownst to you, the bag had Cocaine inside, you may be able to give evidence which if accepted, would satisfy the Court that you did not have knowledge of possessing the drug.

Personal Use (Defence against Deemed Supply)

Deemed Supply is a legal principle under Section 29 of the Drug Misuse and Trafficking Act 1985 (NSW). This section provides that possessing a quantity of a drug that meets or exceeds the designated ‘trafficable quantity’ creates a legal presumption that the drug was held for the purpose of supply.

This presumption can be rebutted under Section 29(a), by proving the drugs were possessed for personal use only. Our firm frequently defends clients against ‘deemed supply’ charges using this defence, sometimes utilizing expert evidence to demonstrate the amount was consistent with personal consumption rather than distribution.

Fillippeti Defence (Common Law Defence)

For a charge of Possession of Prohibited Drug, the Prosecution must prove beyond a reasonable doubt that a person not only had the drug in their custody or control but also knew it was a prohibited drug. When drugs are found in a shared space, like a house or a car used by multiple people, the Police often struggle to prove that you specifically had the required knowledge and control, rather than someone else.

Carey Defence (Common Law Defence)

The Carey defence is commonly raised against a charge of Supply Prohibited Drug and provides that a person cannot be found guilty of this offence if the Court accepts that the temporary or momentary possession of a prohibited drug, with the honest intention of immediately returning it to its owner, does not constitute possession for the purpose of supply.

Duress (Legal Defence)

The defence of duress involves an extremely serious threat to an accused or their family involving the death or serious injury of the accused or their family.  When raising duress, an accused must call evidence about the following:

• The making of an actual threat,
• That the threat must be of death or serious injury to the accused or his family,
• That the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did, and
• That the accused acted as he did because of the threat which was still acting on his mind at the time of the criminal act.
• For such a threat to be effective it must be continuing and be seen to be continuing, and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective.

The accused bears an evidentiary onus in relation to the defence of duress. Once the accused discharges the evidentiary onus the Prosecution must prove that the accused acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.