Drug Possession and the Law

In Victoria, the most common charge relating to possession of drugs is possession of a ‘drug of dependence’. The legislation differentiates between types and amounts of drugs, providing several other categories of offences, relating to possession, use, production and trafficking. In this article, we examine the law relating to possession of a drug of dependence and pinpoint defences that may be available to you.

Elements of the Drug Possession Offence

In order to establish the offence of ‘Possession of a drug of dependence’ there are two things the Police must establish, that:

1. The substance meets the definition of a drug of dependence; and
2. You possessed a substance;

There are separate offences relating to cultivation and trafficking, which are outside the scope of this article.

Drug of Dependence

The law defines a ‘drug of dependence’ as:

• A drug, or any part of a plant (such as a Marijuana plant); or
• Natural or synthetic, salts, analogues, derivatives and isomers of that drug and any salt of those analogues, derivatives and isomers. [1]

There is a list provided by legislation, which categorises certain types of drugs including (but not limited to) Cannabis, Cocaine, Methylampetamine and Pseudoephedrine.[2]

Possession

Possession under Victorian legislation means to have used, enjoyed or controlled a drug of dependence.[3] The term ‘use’ relating to a drug of dependence means to smoke, inhale the fumes of or introduce to the body. [4] Possession can also be deemed where drugs are found on land or premises occupied by the accused, or in property over which the accused exercises practical control including access.[5]

The Police can also rely on a common law definition of possession, requiring the establishment of both a conduct element and mental element.[6] This means proving that you exercised control over, and intended to control a drug of dependence.[7] ‘Control’ means having within one’s reach or the power to have within one’s reach.[8] The Police are also required to establish that you intended to possess a drug of dependence.[9]

Further, it is worth noting the Police need only establish the elements of drug possession on the ‘balance of probabilities’, meaning that it was more likely than not.[10]

Possible Penalty

The maximum penalty for possession of a small quantity of Cannabis or Tetrahydrocannabinol is 1-year imprisonment or a maximum of 5 years for possession of other drugs. [11] For use of a drug of dependence, the maximum penalty is 1-year imprisonment.[12]

There are lesser penalties where the charge relates to only a small quantity, or it can be agreed the drug was not held for the purpose of trafficking.[13]

Drug Possession Defences

If you have been charged with a drug possession offence, it is important to seek legal advice so that you can raise a defence that is best suited to your individual case. Some options you have include to argue that you did not commit the offence (e.g. mistaken identity). You can also raise that the substance found in your possession was not a ‘drug of dependence’. Further, you can argue that a drug of dependence does not meet the elements of possession, or was not under your control. It is also a defence, in some circumstances, to argue that you did not intend to possess a drug of dependence. You can also raise a defence if you were authorised or licenced to carry the drugs found in your possession.

[1] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 4.
[2] Drugs, Poisons and Controlled Substances Act 1981 (Vic) Schedule 11, Part 2; Schedule 11 Part 3.
[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5.
[4] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.
[5] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5; s 73(1); R v Clarke and Johnston [1986] VR 643;
[6] R v Maio [1989] VR 281; He Kaw The v R (1985) CLR 523.
[7] Ibid.
[8] Moors v Burke (1919) 26 CLR 265.
[9] He Kaw The v R (1985) 157 CLR 523.
[10] R v Momcilovic (2010) 25 VR 436; S 73(1)(a).
[11] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b)(c).
[12] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 75(b).
[13] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(a)(b).