Possession, use and supply

Some of the most common drug offences are for possession, use and supply of prohibited drugs.

Each drug offence has specific legal ‘elements’ which the prosecution must prove beyond reasonable doubt.

Possession

Possession of a prohibited drug is an offence under section 10 of the NSW Drug Misuse and Trafficking Act 1985 (NSW). To prove possession, the prosecution must show beyond reasonable doubt that:

• an illegal drug was in a person’s ‘custody’ or ‘control’, and
• the person knew that they had custody or control of a prohibited drug.

Proving custody or control

The police must prove that the person actually had control over drugs found, for example, in their car or house. The fact that a person owns a car, or owns or rents a house, does not necessarily mean that they own things in it. If a person knows that there are drugs in their house, but someone else has control of them (that is, the person does not own the drugs or have any right to use them), they are not guilty of possession.

What is custody or control?

Custody means immediate physical possession, such as a person having something in their pockets. Control refers to the right to do something with the drug— for example, to keep, consume or share it.

Momentary custody and control

A person can be found guilty even if their custody and control was only momentary: for example, by taking a joint passed to them.

Proving knowledge

The prosecution must prove that the person knew they had something in their physical custody and control that was, or was likely to be, a prohibited drug.

The legal test for the prosecution is not ‘what a reasonable person might or should think in the circumstances’. The actual knowledge of the accused person must be proved. Knowledge can be inferred from the circumstances in which the drugs were discovered.

If someone is apprehended with drugs on them, a court would probably reasonably infer that they had knowledge and control of those drugs. It is difficult for someone in this situation to escape the inference that they knew what was in their bag or sock or pockets. Similarly, where drugs are stored in a part of a house that is private (say, in a person’s bedroom) it is open to be inferred that they had possession of those drugs.

Charges against several persons

If a number of people are charged with possession in this situation, the prosecution must prove in each case that the person charged had possession of the drugs.

This can be difficult. Courts are not allowed to presume that all the people must have shared possession—each individual accused is presumed innocent. Without admissions (‘Yeah, I knew the weed was in the cupboard…’), it may be difficult to prove that any one of the accused is guilty of possession.

Medicinal cannabis

The law around medicinal cannabis is subject to change.

In 2016, the Commonwealth passed amendments to the Narcotic Drugs Act 1967. The aim of the changes is to provide a pathway of legally-grown cannabis for the manufacture of suitable medicinal cannabis products in Australia while still meeting international obligations under the Single Convention on Narcotic Drugs. It also sets up a national regulator to track cannabis products for medicinal use from cultivation to supply. However these amendments do not actually legalise medicinal uses of cannabis.  They just create a framework for States to legalise medicinal use.

From August 2016, the NSW Government has established a process where medicinal cannabis can be prescribed by a doctor, but there are many practical hurdles. The doctor (who is expected to be a specialist) must obtain approval to prescribe the cannabis product from a panel of experts appointed by NSW Health, proving that all other treatment options have been exhausted. If approved by the NSW panel, the doctor must then get permission from the Commonwealth Therapeutic Goods Administration (TGA).  The medicinal cannabis product must be imported (there are no local products which have TGA approval) and cannot be in raw plant form.

Otherwise, the use of cannabis for medicinal reasons officially remains prohibited in NSW. It is not a defence to a charge of possession of cannabis (or self-administration or cultivation of cannabis) that the person used the cannabis for a legitimate medical reason. However, evidence of a significant illness or medical condition can be a relevant issue to be taken into account in sentencing. 

NSW has been conducting clinical trials with medicinal cannabis. The three trials have been for terminally ill patients (see Medicinal Cannabis Compassionate Use Scheme); children with severe epilepsy; and for severe nausea and vomiting in patients undergoing chemotherapy. The drug can be administered without the psychoactive effects of smoking cannabis.

Many cannabis preparations designed for medicinal applications will have a higher proportion of cannabidinol (CBD) and less tetrahydrocannabinol (THC) than other cannabis.

Cannabis oil is defend in the Drug Misuse and Trafficking Act 1985 to mean any liquid containing THC, so it would not be an offence to possess or supply a cannabis preparation with zero THC.

Medicinal cannabis will be legal in Victoria from 2017, for people in exceptional circumstances who are authorised by a medical specialist under the Access to Medicinal Cannabis Act 2016 (Vic). 

Medicinal Cannabis Compassionate Use Scheme 

People with terminal illnesses and their carers can register on the Medicinal Cannabis Compassionate Use Scheme (previously the Terminal Illness Cannabis Scheme). The register is maintained by the NSW Police. The registration process requires a doctor to certify that the person has a terminal illness, which is defend to mean an illness which in reasonable medical judgement, in the normal course and in the absence of extraordinary measures, will likely result in the person’s death.

A person listed on the register or their carer will not be prosecuted for possession of up to 15 grams of cannabis or 2.5 grams of cannabis resin (hashish). Being on the register is not a defence to a charge of cultivation or supply or driving under the influence of a drug or driving with the presence of THC in saliva.

Synthetic drugs

‘Synthetic’ drugs are, or are at least marketed as, chemically different from but with similar effects to better known illicit drugs. The possession, manufacture, production or supply of ‘synthetic’ drugs is criminalised by a combination of the Poisons and Therapeutic Goods Act 1966 (NSW) and the Drugs Misuse and Trafficking Act 1985 (NSW). A number of synthetic drugs are listed by their market names on Schedule 9 of the Poisons Standard. The Poisons Standard is a list of poisons and other substances, gazetted by the Poisons Advisory Committee, whose members are appointed under the Poisons and Therapeutic Goods Act 1966 (NSW). It is an offence under the Drug Misuse and Trafficking Act 1985 (NSW) to possess, manufacture, produce or supply a substance listed on Schedule 9 of the Poisons Standard.

‘Psychoactive substances’

In addition, the Drug Misuse and Trafficking Act 1985 creates offences for dealings with ‘psychoactive substances’, which may include synthetic drugs not included on Schedule 9 of the Poisons Standard. 

A psychoactive substance is defend as a substance that, when ‘consumed’, has the capacity to induce a psychoactive effect. ‘Psychoactive effect’ is broadly defend to include any stimulation or depression of the central nervous system, hallucination or significant disturbance or change to perception. 

It is an offence to manufacture or supply a psychoactive substance for human consumption, either knowingly or recklessly in relation to the intended supply. There is no offence of possession of a psychoactive substance.

It is an offence to publish or display any form of advertising which, knowingly or recklessly, promotes the consumption, sale or supply of a substance for its psychoactive effect, or provides information on how or where a psychoactive substance may be acquired. 

There are no categories of offence based on quantity. 

Use

Using an illegal drug (also known as ‘self-administration’) is an offence under section 12 of the Drug Misuse and Trafficking Act. The police must prove that the substance consumed was a prohibited drug. Obviously they cannot analyse the substance if it has been completely consumed, and blood tests can only be taken by a doctor after arrest. So for most convictions they must rely on admissions made by the accused.

Intoxication as a defence to criminal charges

Self-induced intoxication with illegal drugs does not generally provide defence to criminal charges.

Prescription drugs

It is legal to possess and use some drugs, like methadone and the benzodiazepines (such as Serapax and Valium), if they have been prescribed by a doctor. It is only an offence to possess or use these drugs without a prescription.

Injecting methadone

It is an offence to inject methadone, even by someone on a methadone program. Methadone is legally prescribed subject to conditions on quantity and the ‘purpose’ of the prescription, which must be according to ‘recognised therapeutic standards’ (NSW Poisons and Therapeutic Goods Regulation 2002). The ‘purpose’ specified in methadone prescriptions is oral dose. Administration by any other method means the methadone is not lawfully prescribed and is illegal.

Administering drugs to others

It is also an offence to administer a drug to someone else, for example by injecting them, or to allow someone to administer drugs. It is an offence even if the person consents to the drug being administered to them.

Drink spiking

The offence of administering a prohibited drug includes drink spiking, where a prohibited drug is added to someone’s alcoholic drink, and the person is not aware and does not consent to the administration of the drug.

If someone dies

A person who injects someone else with a drug that causes their death may be charged with manslaughter. Manslaughter means causing an unlawful death where the intention was not to kill or inflict a serious injury, but to inflict a minor injury or commit some other criminal offence.

Getting medical help

If an overdose or other emergency situation involving drug use occurs, you should call an ambulance or seek other suitable medical help. It is obviously the best medical option for the person who has overdosed.

The ambulance service does not notify the police when it attends a drug overdose. Hospitals and doctors also do not notify the police if you go to them requesting medical attention.

Police sometimes do attend overdose scenes. But police guidelines are designed to encourage people to seek medical help when necessary. So police are directed not to arrest an overdose victim or their friends, or any other people who are present at an overdose and may have also consumed drugs or be in possession of drugs.

Injecting rooms

The NSW government has licensed one medically supervised injecting centre, in Kings Cross. The injecting centre's licence is issued under the Drug Misuse and Trafficking Act.

It is lawful for a person to use or possess a small quantity of a prohibited drug while in the injecting centre. Police guidelines also encourage the exercise of discretion to not arrest or charge a person who is on their way to or from, or in the vicinity of, the injecting centre with possession offences. Supply offences in or near the injecting centre are policed.

It is an offence for anyone except the operators of the licensed injecting centre to ‘advertise or hold out in any way’ that their premises are available for the administration of a prohibited drug.

Harm reduction

Supply

Supply is very broadly defined to include not only selling or giving away drugs but also simply agreeing to supply them.

Supply also includes ‘deemed supply’—possessing certain quantities of drugs which are deemed to be for the purpose of supply.

A person can be charged with supply if they tell police they intended to sell even a small quantity of drugs found in their possession, or if they deliver drugs to a friend.

They are also guilty of supply if they simply offer to supply a drug, even if they have no hope, or no intention, of fulfilling the offer.

What if it isn’t really a drug?

If a person offers a substance to someone and says that it is a drug to persuade that person to buy or take it, they are guilty of supplying the drug whether the substance is actually the drug or not. For example, a person who offers to supply someone with heroin when all they have is icing sugar is considered guilty of supplying heroin.

This is the case whether they have made a genuine mistake or are deliberately attempting to cheat the buyer.

For possession and use offences the court must be satisfied that the substance is in fact a prohibited drug.

Deemed supply

A person will be presumed to be supplying a drug if they are simply in possession of a particular quantity of the drug, known as the traffickable quantity. This amount varies from one drug to another, and in many cases is not especially large.

If the police can prove that a person is in possession of a traffickable quantity of a drug, the person then has the onus of proving that the possession was not for the purpose of supply. A traffickable quantity of a drug is an amount deemed in law to be in a person’s possession for the purpose of supply.

Purity does not matter—only weight. Under NSW law, one gram of a powder that is 10% heroin and 90% glucose is treated as one gram of pure heroin. Anybody found in possession of a traffickable quantity is presumed to be a supplier unless they can prove otherwise—for example, that the drug was intended for personal use, or disposal.

Ongoing dealing

Ongoing dealing involves the supply of a prohibited drug (except cannabis) on three separate occasions within a 30-day period. The acts of supply must be for some financial or other material reward. They do not all have to involve the same drug.

A charge of ongoing dealing could be laid where an undercover police officer buys drugs from the same street dealer on three different days. The police are not obliged to arrest the dealer immediately after the first sale.

Large scale supply

Higher penalties apply for charges involving the supply of larger amounts of drugs. The Act divides trafficking offences into:

• indictable quantities
• commercial quantities
• large commercial quantities.

As with deemed supply, proof of possession of the relevant quantity is sufficient to establish that a person is guilty of that particular trafficking offence, unless the person can prove that the possession was for a reason other than supply (which is obviously more difficult the larger the quantity).