Possess Prohibited Drug is one of the most commonly prosecuted criminal offences in the Local Courts. It is a summary offence, meaning it will be dealt with in the Local Court. If found guilty you face penalties of 2 years imprisonment and/or a fine of up to $2,200.
A criminal conviction may also impact on your future employment or your ability to travel to certain countries. If you have been charged with Possess Prohibited Drug it is therefore essential that you seek legal advice straight away.
You may be able to avoid a conviction altogether if you are dealt with under section 10 Crimes (Sentencing Procedure) Act. View our article on how to obtain a section 10 .
Possess Prohibited Drug Penalties
·Maximum jail term – 2 years
·Maximum fine – $2,200
What do the prosecution have to prove for Possess Prohibited Drug?
The prosecution must prove that the accused had in his or her possession a prohibited drug. ‘Possession’ means either in the accused’s physical custody or control. Possession can also be joint or exclusive.
The prosecution must also prove beyond reasonable doubt that the accused knew of the existence of the drug in his physical custody or control.
Sniffer dogs and Possess Prohibited Drug
Many people who are charged with Possess Prohibited Drug are detected by a Police drug sniffer dog. Police are only authorised to use drug sniffer dogs to search people randomly in three situations:
1.in pubs, clubs and other places where alcohol is served
2.at entertainment events, including sporting events, concerts, dance parties & street parades
3.on public transport and stations.
Any drug search of a person outside these situations is illegal unless the police officer suspects “on reasonable grounds” that you have in your possession a prohibited plant or drug.
Examples of Possess Prohibited Drug cases that could successfully be defended
Often where the prohibited drug is found in the accused’s shared house or motor vehicle issues surrounding ‘possession’ arise.
If, for example, drugs are found in the bathroom cabinet in a house to which three people all had shared access it may not be possible to prove possession to just one of the occupants.
If you are pulled over at a stationary RBT while driving a friend’s car and the police conduct a search of the car – finding drugs in the boot – the prosecution may not be able to prove that you had the requisite knowledge that the drugs were located there.
As another example, if a friend places her purse in your handbag which is subsequently found to contain 2 ecstasy tablets, you cannot be found guilty of Possess Prohibited Drug unless it can be proved that you had knowledge that the drugs were in your possession.
‘Deemed’ Supply of Prohibited Drug
Section 29 Drug Misuse and Trafficking Act states that an accused who has in his or her possession an amount of prohibited drug which is at least the traffickable quantity shall be deemed to have the prohibited drug in his possession for the purposes of supply unless the accused proves on the balance of probabilities that the drugs were for personal use, not supply.
Supply Prohibited Drug is a much more serious offence than Possess Prohibited Drug, carrying maximum penalties of over 15 years imprisonment. If you have been charged with Supply Prohibited Drug it is therefore essential that you seek legal representation immediately.
What amounts to a ‘traffickable quantity’ differs for each type of drug. Some of the most common prohibited drugs are listed below:
|Prohibited plant/drug||Traffickable quantity|
A person can be charged with ‘deemed’ supply simply because he has in his possession more than the traffickable quantity of a prohibited drug. There need not be any other evidence of drug supply. Of course it will help your case if there is no evidence of supply, such as multiple mobile phones, small resealable bags and large sums of money. For more information view our article on Supply Prohibited Drug
What should I do if I have been charged with Possess Prohibited Drug?
If you have been changed with Possess Prohibited Drug there are a number of ways we can assist you in the court process. You may have a defence available so wish to plead not guilty and take the matter to hearing. Alternatively you may wish to plead guilty – in which case one of our criminal defence lawyers will make submissions on your behalf on sentence.
Do not delay in calling Nyman Gibson Miralis for a free conference. We will be able to advise you on the best course of action in your specific circumstances, the likely costs involved and the expected time frame until completion.