Possession of Prohibited Drugs

In New South Wales (NSW), the offence of possessing a prohibited drug can result in a maximum penalty of 2 years in prison and/or a fine of $2,200. However, the maximum penalty is usually reserved for the most serious cases.
In most instances, if a person pleads guilty, they may receive a fine or a good behavior bond, which is a promise to adhere to certain conditions for a specified period of time determined by the court.
There is a possibility to completely avoid a criminal conviction for drug possession.

For the police to prove someone guilty of drug possession, they must establish three key points beyond reasonable doubt in court:

1.The person had the substance in their possession.
2.The substance was a prohibited drug.
3.The person knew they had the drug and lacked a valid excuse for possessing it.

If the police can’t prove each of these elements, the court cannot find the person guilty of possessing a prohibited drug. Let’s delve into some of these elements more closely.
What does “possession” mean legally?

The legal definition of possession goes beyond everyday usage. In cases of drug possession, a person is considered to possess the drug if:

1.The prohibited drug was physically held by the person (immediate physical possession), like in a pocket or bag.

2.The prohibited drug was under the person’s control (they could manage it exclusively, except for those acting with the person); and

3.The person was aware they had control over the prohibited drug

Knowledge of drug possession: To be considered guilty of drug possession, a person must be aware that they have a prohibited drug in their possession or control. For instance, if someone puts a prohibited drug in another person’s bag without their knowledge, the unknowing person is not responsible for drug possession.

Legal Excuses to drug possession: The only recognised legal excuse for drug possession is related to medicinal cannabis. If a person has cannabis due to a doctor’s prescription, they are not considered guilty of drug possession.

Commonly, people are charged with drug possession when they are searched by the police and the drug is found on them. This can include drugs in clothing, pockets, bags, or other personal items.

However, physical possession isn’t the only way someone can be deemed guilty of drug possession. Another aspect is possession through control. A person can also be guilty of drug possession if they can control the drug, even if they’re not physically holding it. For instance, if someone has access to a drug in a shared space and can control it, they could be considered in possession.

Furthermore, even a brief period of possession can lead to guilt. For instance, holding a bag of cannabis for just a few seconds is sufficient for a person to be charged with drug possession.

If drugs are found in a shared area like a living room, kitchen, or bathroom used by many people, proving someone’s guilt for possessing the drugs is hard. Without strong evidence connecting the drugs to a specific person, it’s unlikely anyone can be found guilty of drug possession. This is because it’s not clear who the drugs belong to among those who share the space.
The idea of “exclusive possession” is key. When many people can access an area, it’s tough to show that one person had complete control of the drugs. If there’s no clear proof that a specific person owned or knew about the drugs, it’s difficult for the prosecution to prove their case and secure a conviction.
In short, when there’s no direct link between the drugs and a specific person in a shared area, it becomes less likely for the prosecution to successfully prove drug possession. The legal principle of reasonable doubt requires proving guilt without reasonable uncertainty. Without a clear connection to a specific individual, the foundation for a conviction becomes weaker.

A comprehensive array of prohibited drugs exists in NSW, outlined in Schedule 1 of the Drug Misuse and Trafficking Act 1985 NSW. Some frequently encountered prohibited substances include:

• Cannabis
• Cocaine
• Ecstasy
• Amphetamines (including ice)
• Heroin
• LSD
• GHB

No longer is it mandatory for police to initiate court proceedings. A change introduced in 2019 grants police officers the discretion to issue on-the-spot fines for drug possession rather than pursuing court action. Despite this legal amendment, court appearances still transpire in many instances.

The Cannabis Caution Scheme solely pertains to cannabis. It empowers police officers to administer cautions to individuals instead of pressing charges for cannabis possession.

Under this scheme, cannabis possession of 15 grams or less is applicable, and it can only be implemented once for an individual. Those previously convicted of drug possession are ineligible for participation.

The Cannabis Caution Scheme authorises police officers to factor in the legal and health consequences of an individual’s cannabis use, considering the overall insignificance of the situation.

Possession means having physical control or custody over a prohibited drug. It can include having the drug on your person, in your belongings, or in a location where you have control.

Penalties for drug possession in NSW can vary based on the type and quantity of the drug. They may include fines, good behavior bonds, and, in some cases, imprisonment.