My Web Stats

Research & Publications

Possession of Drugs & Possession with Intent

December 2010

Under the Australian Criminal Code and the Misuse of Drugs Act 1981 (WA) there are offences which relate to the import or export of border control drugs or plants, possession of such drugs or plants which were illegally imported and possession of such drugs or plants reasonably suspected of being illegally imported. The crown has to establish that the person imported a substance that it was a border controlled drug or plant and the amount was a commercial quantity.

With importation there must be proof and intention to import so there has to be knowledge of the drugs. The intention can be inferred from an awareness that what was being imported contained narcotic goods.

Under the Commonwealth Act there are a number of penalties which apply, including: life imprisonment where the amount of the drug is a commercial quantity; 25 years imprisonment where the quantity is a marketable quantity; 10 years where there is no intention to sell; and 2 years for importing less than a marketable quantity.

The Commonwealth Criminal Code has a schedule of penalties for importing particular drugs including amphetamines, cannibas, cannibas resin, cocaine, heroin, LSD and ecstasy. The primary focus is trafficable, marketable and commercial quantities of illegal drugs.

Supply includes buying a drug with pooled money and splitting the result. Providing mail order drugs amounts to supply. Having someone hold drugs for you is not supply. Interestingly you cannot be convicted of both possession and supply as they are mutually exclusively. Continuous supply attracts a penalty of 20 years imprisonment. An analyst certificate is prima facie evidence of a quantity of the drug. The manufacture or production of a prohibited drug is an offence.

Many cases focus on possession as well as supply. Possession of a minute amount of drug does not constitute possession where there are other persons who share the accommodation or particular items. For possession there has to be exclusive physical control. The prosecution has to provide knowledge of the existence of the drug, mere knowledge and their location in premises does not amount to possession.

Where a person is found entering or leaving drug premises then this can amount to an offence unless they are doing it with a lawful purpose or lawful excuse. It is up to the prosecution to prove that the premises are drug premises and the court has to be satisfied that they were being used for the manufacture and supply of a prohibited drug at the relevant time. Possession is one thing, but the courts take an extremely poor view of supply. It is an offence to supply or take part in the actual supply of a prohibited drug. A person who has in his possession a trafficable quantity of a drug is deemed to have it in his possession for the purpose of supply unless he proves otherwise. Possession of plastic bags, pistols and scales are admissible to show propensity.

There are also severe penalties for supply of prohibited drugs on an ongoing basis. The crown must prove that the accused knew that the relevant amount of drugs was involved. Manufacture is another area where severe penalties apply and the act makes it an offence where a person manufacturers or produces or who knowingly takes part in the manufacture or production of a prohibited drug. Drug offences are all about quantity and deal with small quantity, trafficable quantity, indictable quantity, commercial quantity and large commercial quantity. Where a person supplies more than a large commercial quantity then the maximum penalty is life imprisonment and a fine of $550,000 (except in the case of cannabis where it is 20 years but the fine is the same.)

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances".

Conduct of Criminal Proceedings and Summary Trials

November 2010

In Western Australia, the Magistrate’s Court has summary jurisdiction over certain criminal offences. Broadly speaking, there are two classes of criminal offences, indictable and summary offences. Indictable offences are offences that carry the right to trial by jury. By contrast, a summary offence is an offence where the right to trial by jury has been removed by law, and the matter is dealt with in the Magistrate’s Court. However, many Indictable offences can be dealt with in the Magistrate’s Court depending on the offence, and if the prosecution or the defendant or both elect for the matter to be dealt with that way.

Generally speaking, less serious offences are dealt with summarily in the Magistrate’s Court, and the more serious offences are dealt with by the District Court or the Supreme Court.

Often a defendant will choose to have the matter dealt with in the Magistrate’s Court as it involves significantly less legal costs, and if the defendant pleads guilty or the charge(s) are proved against the defendant, then the maximum penalty that can be imposed by a Magistrate is often considerably less than the District Court or Supreme Court. Although there may be good reason why a defendant may want a matter heard before a jury.

When the matter proceeds summarily in the Magistrate’s Court, the defendant will plead "guilty" or "not guilty". If the defendant pleads "not guilty", then the matter will be set down at a later date for a "Committal Hearing" or also commonly known as 'Summary Hearing". The defendant will usually be presented with a copy of all the evidence that the prosecution propose to present before the court, including any statements of witnesses.

The defendant is presumed to be innocent until proved guilty. It is for the prosecution to prove beyond reasonable doubt the defendant is guilty of the charges before the court. In Western Australia the Committal Hearing is purely administrative, in a sense there is no need for the prosecution to prove a prima facie case.

At the Committal hearing, the prosecution will need to show proof that all disclosure material has been sent to the defence/accused. Sometimes, the prosecution may not be able to have all the evidence available and as such the disclosure materials have not been provided to the defence, the Magistrates may adjourn the matter to another Committal hearing date. Of course in the event that the prosecution do not provide the disclosure material, the Judge / Magistrate will ultimately decide whether the matter proceeds further or whether to dismiss the charge(s).

If any charges proceed further, the defendant will then decide whether to call any evidence in defence, including the decision to give evidence himself or herself. This later decision can be significant as it allows the prosecution to cross-examine the defendant, and can be pivotal in determining the finding of guilt or otherwise of the defendant.

At the conclusion of the evidence presented, both the prosecution and the defence will have the opportunity to address the magistrate about the evidence. The magistrate will determine whether the evidence proves the commission of the offence(s) beyond reasonable doubt, ie, whether the defendant is guilty or not.

If the magistrate finds the defendant guilty, the magistrate will then hear submissions from the prosecution and defence regarding sentence. The magistrate may pass sentence on the defendant immediately, or may adjourn the sentence to a later date.

Alternatively, if the magistrate finds that the charge(s) are not proved beyond reasonable doubt, then the defendant is discharged

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances