In NSW the possession, use and supply of Prohibited Drugs is controlled by the Drug Misuse and Trafficking Act (NSW).

This Act gives the Police wide powers of stop, search and detain as well as providing severe sanctions for any person who is convicted of an offence under the Act. 

WHAT DRUGS ARE AFFECTED BY THE ACT?

For a drug to come under the scope of the Act it must be referred to in Schedule 1 of the Act. It is important to note here that prescription drugs are regulated by the Poisons Act.

Any offence relating to prescription drugs or the issue of prescriptions would be dealt with under that Act. If a particular drug is not referred to in schedule 1 of the Act then the Drug Misuse and Trafficking Act will not apply.

The Drug Misuse and Trafficking Act also creates offences for the Cultivation, Possession or Supply of a Prohibited Plant. The Act then goes further to include a person who "Takes Part In" the Cultivation or Supply of the Prohibited Plant.

Prohibited Plants means:

• Cannabis Plants;
• A plant of the genus Erythroxylon;
• A plant of the species Papaver Somniferum or Papaver Orientale.

OTHER OFFENCES

The Act also creates offences for Manufacturing and taking part in the manufacture of prohibited drugs. Other offences under the Act include Conspiring to Supply, Manufacture or Cultivate or who Aides and Abets and such offences.

The seriousness of the offence will be reflected by the amount of the drug involved or the number of plants involved in the offence.

The Act also creates offences for the possession of utensils, other than syringes, and for the self administration of a prohibited drug.

The Act creates both Summary and Indictable Offences and has maximum penalties of up to Imprisonment for Life and maximum fines of up to $550,000.00.

Convictions for major offences can also lead to Forfeiture action by NSW Crime Commission who can forfeit assets of a person engaged in serious offences under the Act. 

TAKE PART IN

A person takes part in an offence of cultivation, supply or manufacture of a prohibited drug if the person:

• Participated in any step or causes any step to be taken in the cultivation, supply or manufacture;
• Provides or arranges finance for any step in the process; and
• Provides premises in which any step in the process is taken or allows any step in the process to occur on premises which the person owns, leases or occupies.

A person guilty of taking part in an offence is liable to the same penalty as the person who is the principal offender. 

SUMMARY OFFENCES

The Drug Misuse and Trafficking Act (The Act) creates a number of summary offences. Summary matters are dealt with summarily before a magistrate in the Local Court.

The maximum penalty that a magistrate can impose is Imprisonment for 2 years and a fine of $2,200.00 for the summary offences under Part 2 of The Act. The court could if is so desired look at alternatives to a custodial sentence such as bonds, community service orders etc. 

Possess Prohibited Drug

The mere possession of a prohibited drug is an offence in NSW. For an offence to be proved the Crown would need to prove that the accused had the substance was a drug and that the drug was in the possession of the accused.

As to whether the substance is a drug or not will be resolved by the Crown obtained a certificate from the Analytical Laboratories who will analyse the substance and determine what the substance is.

They then prepare a certificate that is admitted into evidence as proof of what the substance is. As noted earlier, to be a Prohibited Drug the substance must be a substance referred to in Schedule one of the Act.

Possession has two elements. A physical and a mental element. To have physical possession the person must have de facto possession or exclusive physical control of the substance.

The Crown need to prove that the accused either had:

• Sole Possession; or
• Joint Possession.

The Crown cannot allege both Sole and Joint Possession in the Accused. So if the Crown was to allege sole possession, the Crown must negate that there was joint possession of the drug among a number of people.

For the mental element, the Crown must prove that the accused had knowledge of the substance in his possession. This would include showing that there was knowledge of the substance and that it was a drug. If the Crown fail in proving the knowledge requirement then the charge must fail.

If the amount of drug on the person is so small that it is not useable in the way contemplated then the Crown case for possession would fail. 

Possession of Equipment to Administer a Prohibited Drug

A person who has any item of equipment in their possession for the use in administration of a prohibited drug is guilty of an offence. For this charge to be successful the Crown must prove that there is to be a future use of the impliment for the administration of drugs. Past use will not satisfy the criteria.

Normally this is proved by the equipment being located with the drug to be administered or when the accused is found administering the drug or if an admission is made to the police. 

Sale, Supply and display of Waterpipes

This offence prohibits the sale or supply of a water pipe (bong) unless the person satisfies the court that the sale or supply was not for a commercial purpose. 

Administration of a Prohibited Drug

This offence prohibits the self administration or attempted self administration of a prohibited drug by a person. There is a defence if the administration of the prohibited drug which had been lawfully prescribed for the person.

The Act also creates a summary offence for a person to administer a prohibited drug to another person. Further, it is also an offence by the person who allows another person to administer a prohibited drug to them. 

Prescription

The Act also creates offences or Forging or presenting a prescription to obtain a prohibited drug as well as obtaining such a prescription by False Representations.

The Act also covers situations where a person attempts to obtain a prohibited drug from a medical practitioner if the person does not notify the medical practitioner of other prohibited drugs or prescriptions the person has obtained from other medical practitioners. 

Aiding and Abetting

The Act also creates offences for the aiding and abetting any person to commit any of the above offences as well as aiding and abetting offences outside of the State of New South Wales. 

INDICTABLE OFFENCES

Indictable offences are offences which are dealt with to finality in either the District or Supreme Courts before a jury. Only rarely would an indictable matter be tried in the Supreme Court.

However, many indictable offences can now be dealt with summarily in the Local Court before a magistrate. Different rules will apply depending upon the weight or amount of the drug or number of plants in question. 

Offences with respect to Prohibited Plants

The Act creates offences for:

• Cultivating, or Knowingly Taking Part In Cultivating a Prohibited Plant;
• Supplying or knowingly takes part in the supply of a prohibited plant;
• Possessing a prohibited plant.

With regard to these offences it is open to the jury to find on the balance of probabilities that the number of plants was less than the amount charged and to find the accused guilty of the offence for the lesser number of plants.

There are defences created in the Act for persons acting in accordance with directions under the Department of Health or in accordance with a direction given by the Commissioner of Police. 

Manufacture and Production of Prohibited Drugs

A person who manufactures or knowingly takes part in the manufacture of a prohibited drug is guilty of an offence. Such offences can relate to the production of amphetamines, heroin etc.

Supply of Prohibited Drug

Supplying a prohibited drug is one of the most serious offences under the Act. The courts look upon suppliers generally as people profiting off the misery of others. The superior courts have on numerous occasions indicated that the courts must first consider a gaol sentence for a person convicted of such an offence.

Supply is defined as including selling, distributing, agreeing to supply, offering to supply, keeping or having in possession for supply, sending or forwarding, delivering or receiving for supply or authorising direction causing suffering permitting or attempting any of those acts. In the Act the charge also includes any person who takes part in the supply of a prohibited drug.

Again the penalty and mode of trial will be determined by the weight of the drug. The jury can also in this case find the accused guilty of a lesser amount of drug supplied and the accused would be dealt with accordingly.

The maximum penalty for supply is Life Imprisonment and a fine of $550,000.00.

The Act was amended in 1998 to make provision for a new offence of a person who supplies a prohibited drug on an on-going basis. In this case the Crown would need to prove that there was more than three occasions the accused supplied a prohibited drug, other than cannabis, within 30 days for a financial reward. A person convicted of this offence is liable to a fine of $385,000 and 20 years imprisonment. 

Conspiring

Conspiring is where two or more people make an agreement to commit a criminal act. The Act provides a specific offence of any person who conspires to commit one of the above offences. Further, the Act also provides a penalty for any person who Aids Abets the commission of any of the above offences. A person so convicted is liable to the same penalty to the principal offender. 

CHARGING PROCESS AND COURT PROCEDURE

Charging Process

If an offence is committed against the act the Police may commence proceedings. This can be done by the police by charging, issuing a Court Attendance Notice (CAN) or Field Court Attendance Notice (FCAN) and by the issue of a summons.

To charge or issue a CAN the police officer will normally arrest the suspect. The suspect will be taken to a police station where they will be entered into custody. The officer will normally want to conduct a record of interview or to take a statement off the suspect.

Once the interview process is finished the suspect should either be released or taken to the charge room to be charged or to be issued with a CAN. If a person is charged then the authorised officer will need to consider the issue of bail. Bail can be granted unconditionally, subject to certain conditions or refused.

If bail is refused then the accused is required to be taken before the next available court to have the bail decision of the suspect (now accused) reviewed by the court. This is a Local Court constituted by a magistrate or by an authorised justice.

If the accused is given unconditional bail or a conditional bail then the authorised officer will specify a date of the bail form, Form 5, the date which the accused is to attend court. With all matters the first court is the Local Court whether the matter is summary or indictable.

If the accused is granted a FCAN then the officer will hand to the accused, generally at the location where the accused came under notice, a document informing the accused of what the allegation is and also the date the accused is to attend court and at what court.

If the accused is arrested and issued a CAN at the police station a procedure similar to the charging process is carried out. The only difference is that the accused is not required to be given a bail undertaking. The CAN will notify the accused of the allegation and the time and place the accused is to attend court.

The last method of bringing an accused to court is for the officer to swear an information and issue a summons. A summons has no effect until it is served on the accused. It also has no bail conditions, however, a magistrate at court could impose bail if the magistrate so desired. 

Court Procedure

If the matter charged is a summary matter then the matter will remain in the Local Court through to completion. This will include situations where a plea of guilty is entered or whether the matter is defended and a hearing is conducted.

The matter can only be referred to a higher court in these circumstances  if an appeal is lodged against the decision of the magistrate. If the appeal is that the magistrate applied the wrong law or applied the law incorrectly, then the appeal will lie to the Supreme Court. If the appeal is that the accused is not guilty or that the penalty is too severe, then the appeal will lie to the District Court.

After the Committal Proceedings, if the magistrate was satisfied there is a case to answer, the matter will be committed to the District Court. If the plea of Not Guilty is continued in the District Court then a trial date will be set.

When a trial is conducted it is normally conducted before a jury of 12 people from the community. In the trial the judge will instruct the jury as to the law that should be applied and the jury acting on those instructions will determine if the accused is guilty of the offence or not guilty.

Any appeal from a direction of decision given by the judge can be subject to an appeal before the Court of Criminal Appeal. This court is generally constituted by three appeal judges in the N.S.W. Supreme Court. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.