Drug laws in Australia are guided by both State and Federal laws and are extremely complicated to navigate with many things to be considered. Questions such as: ‘what is drug possession?’ ‘what is a traffickable amount?’ are some of the questions that may be asked. Added to the already complex aspects surrounding drug laws, is the fact that in some instances, the onus of proof is reversed, requiring the defendant to prove their innocence. The article will attempt to explain the most common questions related to drugs, but for anyone who is in trouble with a drug offence, please seek legal help.
What is drug ‘possession’?
An individual who does not have a reasonable excuse for possessing a drug of dependence is guilty of an offence under all State laws. Queensland (Drugs Misuse Act), New South Wales (Drug Misuse and Trafficking Act) and Victoria (Drugs, Poisons and Controlled Substances Act) all have the following general elements proving that an individual is guilty of possession:
· if illegal drugs were found to be in their custody and control
· if the person knew they had the drugs in their possession.
How is possession of drugs proved?
Initially, it is up to the prosecutor to demonstrate that someone knowingly had drugs in their possession, and it was their intention to do so. If the prosecution does show that an individual did have possession of a drug, it is now up to the individual to prove otherwise. If someone is found to have drugs in their possession, such as in their pockets, both the control and knowledge requirements in this scenario would be satisfied and the courts would presume this was the case.
What if drugs were found in my house and I didn’t know?
A person is considered to have possession of drugs in State laws if the substances were found in their place of residence. If drugs have been found, it is up to the individual to prove that they had no knowledge that the drugs were in their home.
The burden of proof still remains with the prosecutor, but it is extremely difficult for a prosecutor to prove both the control and knowledge elements if the place was a shared household for example. In a shared residence, a person might have knowledge that drugs were in the house, but not have control. Remember, all elements of what is considered possession in the law must be proved. It’s not good enough to prove one aspect of possession, but not the other.
What is considered a traffickable amount of drugs?
If a person is found to have a certain amount of drugs in their possession, the law would presume that a person is supplying drugs to others. The traffickable amounts vary in the States. In Victoria for example, a person in possession of 250 grams of cannabis, or 10 plants, is considered to have a traffickable amount, while in New South Wales, the traffickable amount of cannabis is 300 grams.
In a lot of cases, the actual amount of drugs that need to be in a person’s possession to be considered traffickable is not very large, such as in the case of heroin. If a person in New South Wales or Victoria has 3 grams of heroin in their possession, which is considered a traffickable amount.
Drug laws in Australia are extremely difficult to understand and there are many technical aspects to be considered. For anyone who is in trouble with a drug offence, seek legal assistance immediately.