Defences for drug charges

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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...

Do I Have a Valid Defence?


If you have been charged with drug offences, you may have a valid defence. This may be a legal defence, such as duress, or a factual defence, such as an alibi. There are many reasons that a person may be found not guilty of drug offences by the court. These include:

  • There is not enough evidence to prove that they committed the offence;
  • The police acted illegally or improperly and therefore some of the evidence is inadmissible;
  • The accused has a valid legal or factual defence.

This article deals with common defences to drug charges.

Common Defences to Drug Charges

Some commonly advanced defences to drug offences are outlined below.

Drugs Were For Personal Use Only

Section 29 of the Drug Misuse and Trafficking Act 1985 provides that if a person has a quantity of a drug that is more than the trafficable quantity of that drug, they are deemed to have it in their possession for the purpose of supply. This is commonly referred to as deemed supply. However, section 29(a) states that an offender will not be deemed to have the drug for supply if they prove they had it in their possession for a purpose other than supply (ie. for their own use only).

The criminal lawyers at Armstrong Legal have been very successful in defending clients for supply drugs utilising this defence. On occasions it may be necessary to call an expert witness to establish the amount of drugs in your possession was not excessive.

Police Cannot Prove Possession

The police must prove beyond a reasonable doubt that you knew of the existence of the drug in your physical custody or control. Quite often the police will find drugs within a car or in a house during a search warrant. The police must prove that you knew of the existence of the drug within the car or house and you knew that the substance was a drug. Where a car or house is used by many people it may be that the police cannot prove that it was you who had possession of the drugs and not someone else.

Duress

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 rasing 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.

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