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Prohibited Drugs Offences
Here are some basics of drug possession and what is needed to prove the offence
Section 10 of the Drugs Misuse and Trafficking Act 1985 NSW provides an
offence for the possession of prohibited drugs. Schedule one of the act lists the names of drugs that are prohibited. There are almost 250 prohibited drugs listed in that schedule. Some of these are easily identifiable, for example, cannabis, cocaine, and heroin. Others are far more complicated and refer to their chemical name such as 3,4-Methylenedioxymethylamphetamine (known as ecstasy).
If you have been charged with this offence the police must prove the substance is a prohibited drug and that you were in possession of it.
To Prove Prohibited Drug
If you choose to plead not guilty the police must prove the drug was prohibited and give evidence of weight. The police do this by having the drug analysed by an expert and tendering a certificate under the act. The
processes and procedures in relation to this can be complicated. You need the Local Court Lawyers to make sure that the chain of evidence requirements have been complied with. If they have not, then the certificate may be inadmissible and their case may fail.
It should also be noted that by the time the drug is analysed, particularly with cannabis, the weight of the drug has often reduced. This can have implications with sentencing and deem supply matters.
Where cannabis plants are involved the police will use an agronomist. This expert will generally attend the police station where the substance is stored and prepare a certificate there and then. The issue of continuity however, is still relevant.
Proving Possession
While possession can be an actual possession or joint possession, proving possession is not as easy as it sounds. For example, what if you share a house with friends and the police find prohibited drugs? How do they know who is in possession of the drugs?
Proving that somebody had knowledge of the presence of a drug is not enough. The drug must be in one’s custody or under one’s physical control to establish the element of possession. In a circumstance where drugs are found in a common area of shared premises police have to prove one occupant had possession of the drugs to the exclusion of all others or, if they are alleging joint possession, they must prove that several occupants ‘jointly possessed’ the prohibited drugs. If there is any doubt about who had possession then the prosecution case will fail.
Power to Search
For evidence of the prohibited drugs to be admitted to the Local Court, any search has to be legal. The Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) gives police powers to search people, their vehicles, their belongings and to use drug detection dogs to detect drug offences. The police must have a reasonable ground to suspect that you have drugs in your possession for a physical search. In relation to search warrants the warrant also has to be issued lawfully. The processes and procedures involved in these matters can be complicated. The Local Court Lawyers will make sure that any search that produces prohibited drugs was conducted legally.
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