In Australia drug laws are very complex, including both federal and state laws. Importing or exporting drugs is an offence under the Criminal Code Act 1995 (Cth). Committing this offence under the commonwealth laws may result in very serious penalties and imprisonment for several years.

New South Wales

In New South Wales, most drug charges are under the Drug Misuse and Trafficking Act 1985 (NSW). This Act creates offices relating to:

•  drug use;
•  drug possession;
•  supply and trafficking;
•  cultivation;
•  manufacture;
•  aiding and abetting; and
•  possession of drug-use implements.

What is possession?

Under s 10 of the NSW Drug Misuse and Trafficking Act, possession of a prohibited drug or instructions for its manufacture is an offence. The prosecution must prove beyond reasonable doubt that:

•  illegal drugs were in a person’s custody or control, and
•  that the person knew that this to be the case.

Custody means immediate physical possession, such as having something in their pockets. Control refers to ability to do something with the drug, such as sell or ingest it. A person many be found guilty even if their custody or control was only momentary. For example, holding onto an illicit drug while a friend did an errand, returning shortly.

When can possession became an issue?

Imagine you were hosting a party and a guest arrives with an illicit drug, but you were not aware of this. At the end of the night, there is a police raid and the guest had left the drug in the bathroom. This series of events occurred in R v Solway (1984) 11 A Crim R 449. In this case, the court found that Solway’s knowledge that drugs were in the bathroom did not constitute an offence of possession. While he knew the drugs were in the bathroom, he didn’t claim that they were his or exercise control over them. In fact, he intended on disposing them at a future time.

Proving knowledge

It is the duty of the prosecution to prove that the person knew that they had something in their physical possession or under their control that was, or likely to be, a prohibited drug. It is enough that the person believed the substance to be an illicit drug. So, for example, if your friend hands to you a substance which they tell you is cannabis, but is actually basil, if you are of the belief that this substance was cannabis, this is enough to constitute possession. Actual knowledge of the accused must be proved beyond a reasonable doubt. The knowledge may be inferred from the surrounding circumstances of where the drugs have been found.

Supply

Section 3 of the Act defines supply to include not only selling or giving away drugs but also agreeing to supply them or having drugs in possession for the purpose of supply. A person may be charged if they tell the police that they intended to sell even a small quantity of drugs that have been found in their possession or that they intended to share drugs in their possession with a friend. A person may be found guilty if they simply offer to supply a drug, even if they have no hope, or no intention, of fulfilling the offer.

Large scale supply

There are higher penalties that apply to charges involving a larger quantity of illicit drugs. The Act divides these offences into

•  indictable quantities;
•  commercial quantities; and
•  large commercial quantities.

Police powers

Police have the power to search people and property, and to seize drugs for evidence.

The police can search without arresting a person under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). This power allows the police to stop, search and detain anyone that they reasonably suspect might be in possession of drugs. Police may also under this section strip search a person if they believe it is necessary to do so.

Victoria

In Victoria, police can charge a person with 4 types of drug offences, which fall under the Drugs, Poisons and Controlled Substances Act 1981 (VIC). These are:
• use;
• possession;
• cultivation and manufacture; and
• and trafficking and conspiracy.

Possession

Possession is an indictable offence under section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (VIC). This is the most common drug offence that a person may be charged with. Possession of an illicit drug means having a physical control or custody of it.

Possessing a drug without authorisation or prescription is contained under section 73(1)(b) of Drugs, Poisons and Controlled Substances Act 1981 and carries a penalty of 30 units and imprisonment up to 1 year. However, this only applies if the drug is not related to trafficking.

A defence to possession under the Victorian legislation is that a person either did not know they had the drug or didn’t intend to possess it.

Trafficking

The selling, manufacturing, possessing for sale and offering for sale falls under trafficking. This is a more serious offence than possession for personal use. Under section 73(1)(c) of Drugs, Poisons and Controlled Substances Act 1981, possessing a drug of dependence for purpose of trafficking is an offence and carries imprisonment up to 5 years or a fine. In R v Clarke & Johnstone [1986] VR 643 at 659, the Victorian Supreme Court described trafficking as a ‘movement from source to ultimate user in the course of trade’.

How does the Act define trafficking?

A person may be involved in trafficking if they are preparing the drugs for supplying, for example by drying cannabis or packing up drugs. Manufacturing or making the drug includes selling, exchanging or agreeing to sell, or buying drugs on behalf of someone else results in trafficking.

Police caution

Depending on circumstances of a first offence or the quantity of the drug, it is the discretion of the police to either provide a warning or charge someone with the offence. A person may have to go court for possession of drugs where the prosecution must provide evidence that the offence occurred. The prosecution must prove factors including:
• that the offence occurred at a specific time and place;
• that the person is the offender;
• that the person had substance in possession; and
• that the substance was an illegal drug.

Possible Defences

In any drug offence at any jurisdiction, a person may defend the claim by giving evidence that:
• the drugs were for a personal use;
• there isn’t enough evidence to prove possession beyond all reasonable doubt; or
• the person experienced duress.
However, the success of these defences will vary depending on circumstances, type of drug and the quantity.