A person is guilty of the offence of using if he or she knowingly uses one of the many substances listed in the Drugs, Poisons and Controlled Substances Act.
These substances include Cannabis, Ecstasy, LSD, Heroin, Cocaine. as well as a number of substances which could be prescribed by a medical practitioner, but which, in the case of the defendant, have not been prescribed.
As with all crimes the burden of proof is with the prosecution to prove beyond a reasonable doubt that:
The substance involved was prohibited under the Act;
The accused used the substance; and
The accused used the substance knowingly.
Are you authorised to use?
The police will always ask you in the record of interview whether or not you are authorised to use the particular substance in question. In the case of the common street drugs people are clearly not authorised, and cannot be authorised,to use these. However, it is possible in the case of various prescribed medications to be authorised to use them.
In the case of medicinal use of cannabis, it is not possible, at this stage in Victoria, to obtain an authorisation from a medical practitioner to use cannabis, either for the relief of glaucoma or for the relief of the nauseating consequences of chemotherapy.
It is a defence to use a drug of dependence if you are authorised medically to do so, For instance if the drug is prescribed by a medical practitioner.
The only other defence is that there was no use of the drug and that the Prosecution is mistaken in the assertions that either:
it was you who were using, or
it was a drug that you were using.
Using a drug of dependence carries with it a range of penalties depending on the drug and depending on the extent of the use.
Possession is loosely defined as when a person is exercising control over a particular prohibited drug. A charge of possession assumes that the drug is in the possession of the person for personal use only. As with all crimes the burden of proof is with the prosecution to prove beyond a reasonable doubt that:
The substance involved was a prohibited substance under the Act;
The accused was in possession of the drug;
The accused knew he or she was in possession of the drug.
Knowledge of possession
It is a defence to a charge you with possession if you did not know the drug was in your possession. An explanation has to be provided as to how you are in possession of the drug unknowingly.
If a drug is found in a person's car, for instance, and he or she is charged with possession, he or she must provide to the court a reasonable explanation of how that drug came to be in the car without his or her knowledge.
This might be that a friend or relative put it there without the person's knowledge or that the car is new and the drugs were left there by the previous owner.
Broadly speaking, it is possible to possess a drug in a range of quantities and the seriousness of the offence rises according to the quantity of the drugs in a person's possession. For instance, it is a minor offence for a person to possess a 'small' quantity of a drug. A more serious offence to possess a'trafficable' quantity of a drug.
The problem is that there is a presumption that more than a certain quantity of drugs in a person's possession will be for sale. So if you are in possession of a small quantity of a drug there is an assumption that it is for personal use.
If you are in possession of a large quantity of drugs then there is an assumption that it is to sell and you would be charged with the more serious crime of trafficking instead of possession unless you can prove that the drugs are for personal use.
There are various cut-off points proscribed by the Act setting out various categories of quantity. The cut-offs vary depending on the drug.
In the case of cannabis a small quantity would be an amount less 50 grams.People who are found in possession of a 'small' quantity of cannabis are entitled on the first occasion to give an undertaking to be of good behaviour.No matter how many times they come before the court they can receive no more than a $500 fine with conviction.
In the case of any other drug, possession of an amount less than the 'trafficable'quantity would be a 'small' quantity. This means that it will be presumed that the drug was for the person's own personal use and accordingly the penalty range is significantly less.
If a person is found in possession of a trafficable quantity of a drug of dependence then this is prima facie evidence of trafficking. In this case the person is not likely to be charged with possession, but with the more serious offence of trafficking. This would place the burden of proof on the defendant to establish that the drug was not in his or her possession for the purposes of sale.
The law in relation to this is complicated and, of course, any person who is charged with possession of an amount greater than the trafficable quantity should seek legal advice urgently.
If a defendant is found in possession of an amount much greater than the trafficable quantity this is called a 'commercial' quantity (if it is greater in amount than described in the schedule to the Act).
If you are found in possession of a commercial quantity of a drug of dependency you should immediately seek legal advice. The law in relation to this area once again is complicated, but the penalties which apply are extremely severe.
Penalties for possession vary widely depending on the amount of the drug possessed and the drug itself. At the other end of the range possession of a kilogram of heroin will be treated very seriously by the Courts and could well result in a significant jail sentence.
MANUFACTURING AND CULTIVATION
These are generally extremely serious offences, although regarded less seriously in the case of cultivation of cannabis, where the amount grown is relatively small. However, the offences can be punished severely and a person should immediately seek legal advice if they have been charged with such an offence.
Manufacturing a drug of dependence means precisely what the plain English definition of the word manufacturing means. Namely producing, mixing elements together to create a substance production etc.
Manufacturing can take place anywhere on a very small scale or a very large scale. Huge factories manufacture drugs in some areas of the world. On the other hand people often try to manufacture illegal drugs in their back shed.
Manufacturing a drug of dependence or cultivating one is a serious offence.But the range of penalties is extreme and depends very much on the quantity of the drug being manufactured or the type of drug. One cannabis plant is likely to be punished with a small fine or a Good Behaviour Bond. On the other hand a small factory which produces twenty kilograms of amphetamine is likely to be punished with a substantial jail sentence. There are a range of penalties in between.
The definition of trafficking in a drug of dependence is broad. A person is guilty of trafficking in a drug of dependence if:
they sell it,
possess it for sale,
attempt to sell it, or
offer it for sale.
There are many different types of prohibited imports. Every drug that has been discussed in the pages above is included amongst the prohibited imports, as well as most other drugs for which one is required to have a prescription in Australia.
The maximum penalty for trafficking in a trafficable quantity of a drug of dependence is 15 years imprisonment. The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years imprisonment.
If one is found in possession of a trafficable quantity of drugs it is possible to persuade the tribunal or the court that it is not in ones possession for the purposes of sale, but for personal use and then a different, less stringent penalty section applies.
The burden of proof is with the prosecution to prove beyond reasonable doubt that:
The import is a prohibited import;
The accused was in possession of the prohibited import;
The accused was aware that it was a prohibited import.
And that he/she was in possession of it.
There is a range of defences to such a charge. However legal advice should be sought immediately if a charge under the Customs Act applies. It is the Customs Office and the Customs officers with the assistance of the Australian Federal Police who generally charge people with the offence of importation. They do so because importing into Australia is a federal offence.
As with all criminal offences the mental element of intention is important.The Prosecution has to prove that the accused knew that they had in their possession a prohibited import or were importing a prohibited import or that they were in a position where they really should have known that is what was happening.
The importation of a prohibited import is an extremely serious offence and attracts extremely long jail sentences. A person importing some pieces of dried pork meat in a plastic bag is likely to get a fine but probably still a conviction.
A person importing a large quantity of heroin is likely to face a jail sentence of up to twenty-five years.
It is not unusual for drug traffickers to get sentences between ten and twenty years depending on the quantity of drug that they are importing.
BEING INTERVIEWED BY THE POLICE
Police cannot hold suspects or witnesses against their will merely to question them. Police may ask suspects or witnesses to co-operate voluntarily.Generally Police will have to arrest you to ask you questions. They can only arrest someone if they have a reasonable belief they have committed an offence.
With searches of property and persons statute and the common law bind the police. Under the Common law police may search the person or premises of a person so long as that person is under arrest. A search of this nature may only be undertaken for evidence in relation to the offences charged. However if the police find evidence of another offence they are entitled to take it.
Should the Police be granted a warrant to search premises, the warrant need not give particulars as to the name of the person alleged to have committed the crime. However the warrant must be particular as to the premises to be searched and to list the types or category of items the searchers have been warranted to find and seize.
Search warrants, except in certain circumstances, are only valid for one search. Generally a new warrant ought to be sought by the Police should they wish to search a premises again. Police with a lawful warrant are allowed to use reasonable force to enter premises that is the subject of the warrant.
This Information Outline is provided courtesy of Brendan Wilkinson Barrister & Solicitor who is experienced in this area of law. He is located at 1st Floor, 11-19 Bank Place MELBOURNE VIC 3000 or phone him on (03) 9670 1987 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.
Brendan Wilkinson: I deal with all clients personally and you will not be put into the hands of junior solicitors. Your first interview is free on the basis that I believe clients should be given the opportunity to see a specialist lawyer. Clients need the opportunity to have their case assessed by a specialist in the required field and be given the opportunity to assess the specialist as to his suitability from the client's viewpoint. Fees are negotiable on a case by case basis. I am willing to appear in all Courts on your behalf and I am also admitted to practice in New South Wales. I can be contacted 24 hours a day, 7 days a week.