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Drug Matters

Have you been charged with drug possession, use or supply? Find out what you should do.

All drug charges are serious but you do have a right to advocacy and legal representation. Whether it’s for the possession, use or supply of a prohibited drug, there will be specific legal ‘elements’ the prosecution will be required to prove to substantiate any drug charges brought against you. These charges must be proven beyond a reasonable doubt. These elements have been established by both the legislation and are interpreted by court precedent. Outlined below are the different drug offences you may be charged with. Have a read and then speak to a lawyer immediately.

Possession of a drug

Proving beyond a reasonable doubt the known possession of a prohibited substance requires demonstrating that:

an illegal substance was found in a person’s ‘control or ‘custody’, and
the person knew they had the drugs in their control or custody.

Control and custody are defined definitely when it comes to drug possession. The former meaning that you had the intention to do something with the drug such as keep, consume or share it the latter meaning that the drug was found in your immediate physical possession. Drugs found in your custody, such as in you pocket, do not necessarily mean a conviction; it must be proven that you knew they were there. You can also be charged for the momentary custody or control of a known prohibited substance; this includes holding drugs for a friend or acquaintance or taking possession of a joint passed to you.

The use or administering of a drug

Using or administering an illegal drug to another is a criminal offence. If a person dies after an illegal drug has been given to them, the person responsible for allowing the deceased to administer drugs could be charged with manslaughter. The illegal administration of a drug includes incidents of drink spiking, in which a drug is ingested without the consent or knowledge of the victim.

In order to charge a person with drug use the police must prove that the substance consumed was in fact an illegal substance. This most often relies on the admission of drug use by the accused. Without admission the police may fail to prove that the substance used was illegal. A doctor can only conduct a blood test– identify which illegal substances have been consumed – in the event of an arrest.

The supply or ‘deemed supply’ of an illegal drug

The charge of supply broadly defines everything from selling or giving away drugs right through to agreeing to sell or give away drugs.

‘Deemed supply’ is when an individual is found with enough drugs in their possession so as to be deemed for the purpose of supplying them to others. The onus to prove that the drugs were not intended for supply will rest with the person found to have trafficable amount of drugs in their possession.

Any person selling or giving away a substance that they claim to be an illegal drug, whether it is or not, faces charges of supplying an illegal substance i.e., if you sell a bag of oregano claiming it is cannabis you will be charged with the selling and supply of an illegal drug.

What should I if I am questioned by the police about drug matters?

  • Seek legal representation.
  • Know that any admission of knowledge that a drug was a prohibited substance may be used against you.
  • Co-operate with police, but know that you are not obliged to answer their questions without first seeking legal representation.

Will I go to gaol or have a police record?

Sentencing, including a gaol time or a record of conviction will depend on the charges you are facing and any past criminal history you may have. Not every drug charge in which the defendant pleads guilty will result in a criminal conviction; what you do and how you plead should be a decision carefully considered by you and your criminal legal team. A drug charges conviction will result in a criminal record, which can impact upon your ability to travel to certain countries on your Australian passport and to attain work in some professions. Gaol time is also a possibility. Maximum penalties are generally reserved for serious offenders with a known criminal history.