Possession of a dangerous drug is one of the most common offences that comes before Queensland Magistrates Courts. Drug possession charges can have a devastating effect on a person’s future from preventing them from being able to obtain certain work to being unable to travel overseas. Even a minor drug possession charge can result in a serious penalty. At Clarity Law we have experienced drug possession lawyers who know the best way to get the best outcome in any court in South East Queensland including Brisbane, the Gold Coast, the Sunshine Coast, Ipswich and Beenleigh.
There are often questions about whether or not a person actually possessed the drugs at the time of the offence. Engaging an experienced lawyer who understands a drug possession charge in Queensland is critical.
What drugs are illegal?
In Queensland illegal drugs are classified as either schedule one or schedule 2 drugs. Schedule 1 drugs are the most serious and include;
- methlyamphetamine (commonly known as ice, or crystal meth)
- lysergide (commonly known as LSD)
- methylenedioxymethamphetamine (MDMA, commonly known as ecstasy)
Schedule 2 are considered less serious and include;
- Psilocybin (Mushrooms)
The Drugs Misuse Regulation 1987 specifies how serious the possession charge is based on how much drugs the person possessed. For example possession of cocaine under 2g can be dealt with in the Magistrates Court while possession of over 2g must be dealt with in the Supreme Court.
What is the definition of possession of drugs?
All drug offences are defined in the Drugs Misuse Act in Queensland. However, bizarrely, the Drugs Misuse Act does not actually define what possession means. In order to understand the legal definition of possession, one must look to the Queensland Criminal Code Act 1899 that defines possession as including:
"Having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question."
So what does constitute possession of drugs?
Physical possession of drugs is broadly defined. It is the physical control or custody of a thing with the knowledge that you have that physical control or custody. You cannot possess a thing unless you know you have it or that you can exercise custody or control of that if it's not in your physical possession at the time. It is not however necessary to prove that a person knows the thing that they possess is actually drugs. Therefore, the situation could be that you could have physical possession of a bag that you consider to be say, for example, baking soda, but in fact, it turns out to be heroin. You, in those circumstances, can still be charged with possession of a dangerous drug.
Non-Physical possession of a dangerous drug
It is not necessary for the police to prove that you had physical possession of a dangerous drug at the time of the offence. Examples of this include you may have ordered drugs over the internet. You may have received notification from the post office that they are available for collection. In that case, you would have been deemed to have non-physical possession because you and you alone have the ability to collect the drugs from the post office.
Another example might be that the drugs were locked in a car glove box to which you had the only key. In that case, non-physical possession of a dangerous drug can be proven and you can be charged with possession of a dangerous drug. However, if it can be shown that although you knew the existence of the drugs, you had not yet decided to take control or custody of the drugs. For example, if drugs are left in a bottom drawer in your room by someone else and that you had no particular intention to do anything with the substance, even though you knew the substance was there, you would have a defence that you did not have control or non-physical possession of the dangerous drugs.
It is possible, and in fact is quite often the case, that people are charged with joint possession of a dangerous drug. Police often raid places where drugs are in plain sight being used by two or more people. In that case, those people can all be charged with possession of a dangerous drug, even though the actual owner of the drugs cannot be identified.
The Drugs Misuse Act provides that proof of a dangerous drug was at the material time in a place that the occupier owned, managed, or controlled is conclusive evidence that the drug was in that person's possession. This section essentially places criminal responsibility on those who are occupiers or concerned with the management or control of a place. This is often used where drugs are found in a house, say a shared flat in an open area, such as a living room, and where no one claims ownership of those drugs, then the owner or occupier of that house could be charged with possession of the drugs.
In that case, that owner occupier would have to prove that they neither knew nor had any reason to suspect that drugs would be present. This is known as a reversed onus of proof, in that it is the defendant having to prove that they did not know the drugs were there and had no reasonable suspicion that there would be drugs.
As to the definition of occupy, it is not enough that a person was simply present at a property. They have to have either legal occupation of the area or in some way have the ability to exclude other people from an area. This would be, for example, a person who physically owns a house or a person who has entered into a lease and has control of that house and has the ability to exclude other people.
A person can be charged with possession of a dangerous drug, even though they had control of the drugs for only a very short period of time. Some examples of this have been where the police have entered into a room, a person has slid a bag of drugs under a newspaper in an attempt to hide them from the police, and in that case, that person was deemed to be in possession of the dangerous drugs. Another example is where a person was sitting on a veranda. The police arrived and they threw drugs that belonged to someone else over the veranda. It was held that they had asserted control over the drugs, even for a short period of time, and thus were guilty of possession of those drugs.
Defences to possession charges
As you read earlier, it is not an element of a possession charge that the drugs are actually drugs. In the cases where people have had possession of items that they assumed to be drugs that in fact turned out not to be, that is not actually a defence under the law. However, in those circumstances, negotiations with police prosecutors are often carried out to try and have them drop the charge on the basis that it was not a dangerous drug and that it would not be fair to prosecute this matter through the courts. We have an article on negotiating with a police prosecutor here.
One defence that may be available is that even if a person had possession and control of the drugs, they can defend it on the basis that they believed honestly and reasonably that say, for example, containers of a substance did not contain a dangerous drug.
Another example of a defence is where an occupier is charged with possessing a dangerous drug say, for example, cannabis. A defence would argue that they did not know or have reason to suspect the presence of that cannabis. This defence relies on the occupier proving not only that they did not know that the drugs were there, but perhaps more importantly, they had no reasonable suspicion that the drugs would be there. A person might not know that drugs are in the living room, but if their living room is regularly used for the smoking of cannabis, then they might have a hard time convincing a court that they had no reasonable belief that drugs would be present.
Penalties for drug possession in Queensland
The penalty for possessing drugs depends on a number of factors including;
- Amount of drugs possessed
- Purity of the drugs
- Whether the drugs were for personal or commercial use
- Whether a person has a criminal history
- The circumstances of the possession charge
- If you were addicted to drugs
For lower level drug possession charges the police have the option of using drug diversion without charging a person. Where a person is charged and the court considers it a minor charge the court can also refer a person to complete a drug diversion program and if completed no conviction is recorded.
As it can be seen, the laws in regards to possession of the drugs are quite complex. This article is not designed to try and replace legal advice. It is a summary of some of the general principles of the law. If you are charged with possession of a dangerous drug, you should always contact an experienced criminal lawyer to get advice. Possession of drugs and the recording of a conviction for possession of a drug can hurt a person's ability to obtain employment and almost certainly will prevent them from being able to travel to certain countries in the world.
Engaging Clarity Law to act for you
Engaging us gives you the best chance at obtaining the lowest penalty or avoiding a jail sentence if the offence is serious or this is not your first offence. We are one of the leading criminal law firms in South East Queensland. We appear every week in the courts with people charged with drug offences, it is this experience that allows us to get the best result for clients. Other law firms simply don’t have the experience that we do and don’t know the judges like we do. Just some of the benefits of us acting for you include;
- we know the judges and what they want to hear to give you the best outcome
- we have good relationships with the Police prosecutors and the DPP
- we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
- engaging us shows the court you are taking your charges seriously
- your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
- you will be fully informed of what is to happen in court and what this means for you after court
- unlike the police or the Judge, we are there to look after you, your privacy and your interests
If you are charged with any drug offence we can assist you.
What courts do you appear in?
We appear in every court in South East Queensland. Just some of the courts we appear in for drug offences are;
For a full list of Courts we appear in click here.
Will I need to come into the office to see you?
We have offices in Brisbane, Maroochydore, Southport, Ipswich and Beenleigh but in most cases we can handle everything by email and the phone without you ever having to come into our office. We are also open outside normal business hours for your convenience.
If I’m going to engage a Lawyer why should I engage Clarity Law?
At Clarity Law we are experts in Queensland criminal law. We are in the court every single day helping people with criminal charges. We have handled hundreds of drug possession charges.
We are also a no pressure firm which means feel free to ring, we can give initial advice and help but you aren’t pressured to engage us but of course we are more than happy if you do.
We cover all courts in South East Queensland from Southport to Gympie and out to Toowoomba. We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.
We have offices at;
- Sunshine Coast
- Gold Coast
What do you charge?
We charge a flat upfront fee for our services that means no hidden charges or unexpected bills.
We are also upfront with our fees, if you look at other law firms few, if any, clearly list how much they are going to charge you. Clarity Law on the other hand are happy to list our prices as we are sure no other South East Queensland law firm can match our prices and experience. Our prices for a guilty plea include;
- full preparation for court including checking for defences and devising strategy to minimise penalty
- negotiations with the police prosecution unit including obtaining criminal history and charge documents
- drafting submissions for the court
- all telephone calls, faxes emails and meetings with you
- detailed information to you on the likely penalty and information on what will happen at court and afterwards
- appearing in the court with you to conduct your guilty plea
To see what we will for a guilty plea on a drug charge click here. For more serious drug charges and those that cannot be determined in the Magistrates Court or where you are pleading not guilty then contact us and we will provide a fixed price quote.
Other articles that may be of interest
- Supplying dangerous drugs
- Your right to silence
- Negotiating with a Prosecutor in Queensland
- Court character references
- The difference between a conviction and non-conviction
- Declining a police interview
How do I get more information or engage you to act for me?
If you want to engage us or just need further information or advice then you can either;