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Insights

Section 10 of the Drug Misuse and Trafficking Act provides that a person who has a prohibited drug in his or her possession is guilty of an offence.

In order for a person to be convicted of possession of a prohibited drug, the police must prove, beyond a reasonable doubt, that

  1. The prohibited drug was in the custody or control of the person; and
  2. The person knew that they had custody or control of a prohibited drug.

A person will have a prohibited drug in their custody if it is within their immediate physical possession. A person will have a prohibited drug in their control if they have the right to keep, use, or share the prohibited drug.

Issues may arise in possession cases where drugs are found on a property or in a motor vehicle rather than on a person. If prohibited drugs are found within a person’s property, this does not necessarily mean they are guilty of the offence. The police must still prove that the person had custody or control of the drugs.

For example, In R v Fillipetti (1984) 13 A Crim R 334, the accused person was living in a home with six other people. A large amount of cannabis was found in the lounge room of the home, which all occupants had access too. It was held by the Court of Criminal Appeal that as all occupants had access to the place where the cannabis was found, there was insufficient evidence to disprove that any of the other occupants may have had possession of the drug.

The police must also prove that the person knew that they had custody or control of a prohibited drug. This element requires the accused person to have sufficient knowledge of the presence of the drug.

This requires the prosecution to establish that the person knew they had something in their custody or control, that was, or was likely to be, a prohibited drug.

The requisite knowledge depends on the actual knowledge of the person, rather than what a reasonable person may have believed. In Williams v The Queen (1978) 140 CLR 591 it was said that this required knowledge may often be able to be inferred from the surrounding circumstances.

For example, a person will not be guilty of possession if someone puts a prohibited drug in their bag or jacket without them being aware, as they do not have the requisite knowledge of the presence of the drug.

If you have been charged with a drug related offence, contact the Criminal Law team at Kells on 4221 9311.