Possessing Dangerous Drugs

Published: 11 January 2021
Published: 11 January 2021
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Possessing Dangerous Drugs – Queensland

Drug possession, or ‘possessing dangerous drugs’ as the offence is described in Queensland, is a serious criminal offence, which, although in minor cases can result in drug diversion orders, can also be punishable by lengthy terms of imprisonment.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of possessing dangerous drugs.

If you face a charge of possessing a dangerous drug, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 9 Drugs Misuse Act (Qld)

Section 9(1) of the Drugs Misuse Act (Qld) makes possessing dangerous drugs an offence in Queensland. The law states:

9 Possessing dangerous drugs

(1) A person who unlawfully has possession a dangerous drug is guilty of a crime.

Circumstances of Aggravation

In Queensland, criminal charges can carry ‘circumstances of aggravation’ that, if proved, lead to an increase in the possible maximum penalty or the imposition of a minimum penalty. With respect to possessing dangerous drug charges in Queensland, circumstances of aggravation relate to the quantities of drugs possessed.

Definition: Unlawfully

The meaning of the word ‘unlawfully’ is defined in section 4 of the Drugs Misuse Act (Qld):

unlawfully means without authorisation, justification or excuse by law.

Meaning: Possess

Unlike terms like ‘supply’ or ‘produce’, which are defined in the Drugs Misuse Act (Qld), there is no definition for the word ‘possess’. Over time, courts have come to different conclusions about the type or level of knowledge required in order for ‘possession’ to be proved by the prosecution. However, the resolution of the issue has come through the effect of the reverse onus provisions the Drugs Misuse Act (Qld), which were originally in section 57 but are now contained in section 129. In Clare v R [1993] QCA 558, the then President of the Court of Appeal stated:

“the clear tenor of the evidentiary provisions in s 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of a thing or substance which is a dangerous drug to prove that his or her ‘possession’ is innocent”

In Tabe v The Queen [2005] HCA 59, the majority of the High Court of Australia upheld the view that it is not necessary for the prosecution to prove that the defendant knew that the property in their possession was a dangerous drug. All that is required is to prove that the defendant knew they were in possession of the particular article or container in which the drugs were stored or found. For this reason, the following represents a standard judicial direction for drug posssession in Queensland:

“Possession denotes a physical control or custody of a thing with knowledge that you have it in your control or custody. You do not possess a thing unless you know you have it or else can actually exercise dominion over it.

It is for the prosecution to prove, beyond reasonable doubt, the defendant’s knowledge of (here insert fact, eg. presence of the things containing the drugs). However, it is not necessary for the prosecution to establish that the defendant knew that the substance was (describe drug). In other words, the prosecution does not bear the burden of showing that the defendant knew the nature of the substance in his control or custody. It is enough for the crown to prove, directly or by inference, that the defendant knowingly possessed a thing or substance or object which was in fact a dangerous drug.”

In cases where it is shown a defendant was an occupier of, or a person concerned in the management or control of, the place where the drugs were found, section 129(1)(c) of the Drugs Misuse Act (Qld) states as follows with respect to possession:

“proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place…”

The effect of section 129(1)(c) of the Drugs Misuse Act (Qld) is to reverse the onus so that the defendant must prove that it is more probable than not the he or she did not know about nor had reason to suspect the presence of the drug.

Definition: Dangerous Drug

Section 4 of the Drugs Misuse Act (Qld) defines ‘dangerous drug’ to mean:

dangerous drug means—

(a) a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(b) any part of a plant that is a thing stated in the Drugs Misuse Regulation 1987, schedule 1 or 2; or

(c) a derivative or stereo-isomer of a thing mentioned in paragraph (a) or (b); or

(d) a salt of a thing mentioned in any of paragraphs (a) to (c); or

(e) an analogue of a thing mentioned in any of paragraphs (a) to (d); or

(f) a thing that has, or is intended to have, a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e); or

Note— See also section 4BA for when a thing is intended to have a pharmacological effect of a thing mentioned in any of paragraphs (a) to (e).

(g) a thing mentioned in any of paragraphs (a) to (f) that is contained in—

(i) a natural substance; or

(ii) a preparation, solution or admixture.

Drug Possession: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond a reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

For a drug possession case in Queensland, the prosecution sets out to prove that (1) the person charged (2) unlawfully (4) possessed (5) a dangerous drug. It is also necessary to prove any circumstances of aggravation that may be alleged (ie, a particular quantity of drugs for drug possession charges). Whether one or more of these elements is a real issue in a trial will depend on the circumstances of the case. For instance, a prosecution case based only on circumstantial evidence may involve no question of identity, but it may be disputed that the person charged was actually in possession of a dangerous drug at any time. In other cases, there may be no dispute that the person charged was in possession of certain items, however the person charged asserts that they honestly and reasonably, but mistakenly, believed the dangerous drugs were some other, legal substance.

One matter the prosecution does not need to prove is the particular dangerous drug in respect of which the offence is alleged to have been committed. Section 129(1)(b) of the Drugs Misuse Act (Qld) allows a person to be convicted as charged provided there is sufficient proof that “the thing to which the charge relates was at the material time a dangerous drug”. This allows the police and prosecutors to bring drug possession cases on circumstantial evidence alone without the need to specify that the possession concerned ‘heroin’, ‘methylamphetamine’, ‘cannabis’, or some other dangerous drug.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they aided or encouraged another person in an offence of possessing dangerous drugs.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as possessing a dangerous drug, they generally thinking about what makes them ‘not guilty’ of the offence. Because of the presumption of innocence, whenever a person faces a charge of possessing dangerous drugs in Queensland, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. What that means in practical terms is that it is for the prosecution to disprove any defences that may be raised on the evidence.

For drug possession charges, the prosecution must not only prove the elements of the offence beyond reasonable doubt, it must also disprove all defences that may apply beyond reasonable doubt. However, as is outlined below, the Drugs Misuse Act (Qld) does create some modifications as to the onus of proof for some defences, which can impact how a particular defence may be established.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act under a mistaken belief as to a relevant fact. The prosecution has an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘possessing a dangerous drug’

The law requires the prosecution to prove that the charge was committed ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty.

Some defences available under the Criminal Code (Qld) do not apply to drug possession, and others, such as compulsion or extraordinary emergency, may only arise in exceptional circumstances. A common issue in cases involving drug charges is whether the person charged had an honest and reasonable but mistaken fact about the thing found in their possession. Such issues possibly give rise to a defence of ‘mistake of fact’ under section 24 of the Criminal Code (noting that defence is modified by s. 129(1)(d) of the Drugs Misuse Act). The Queensland Court of Appeal in R v Duong [2015] QCA 170 determined that for a mistake of fact defence to apply, it cannot be a belief that the person charged was simply dealing with a different, potentially less serious form of, dangerous drug. That is, it is only if a person establishes a belief that they were not dealing with any dangerous drug that they may be acquitted due to a defence of ‘mistake of fact’.

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of drug possession should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Penalties & Sentences

Maximum Penalty

The maximum penalty for possessing dangerous drugs in Queensland is between 15 years’ and 25 years’ imprisonment, depending on the nature of the drug possessed and whether any circumstances of aggravation apply. In certain circumstances, a lesser maximum penalty applies if the judge is satisfied that the person convicted was a “drug dependent person”. The term ‘drug dependent person’ is defined in section 4 of the Drugs Misuse Act (Qld) as meaning the following:

drug dependent person means a person—

(a) who, as a result of repeated administration to the person of dangerous drugs—

(i) demonstrates impaired control; or

(ii) exhibits drug-seeking behaviour that suggests impaired control;

over the person’s continued use of dangerous drugs; and

(b) who, when the administration to the person of dangerous drugs ceases, suffers or is likely to suffer mental or physical distress or disorder.

Minimum Penalty

While some drug offences under Queensland law can carry mandatory minimum sentences, drug possession does not have any mandatory minimum penalty.

Sentencing in Queensland

For a charge of possessing a dangerous drug, the Penalties and Sentences Act (Qld) sets out a range of relevant sentencing considerations. For a drug offence, the law states that the court must have regard to the following considerations:

(a) principles that—

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

(b) the maximum and any minimum penalty prescribed for the offence; and

(c) the nature of the offence and how serious the offence was, including—

(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under section 179K; and

(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and

(d) the extent to which the offender is to blame for the offence; and

(e) any damage, injury or loss caused by the offender; and

(f) the offender’s character, age and intellectual capacity; and

(g) the presence of any aggravating or mitigating factor concerning the offender; and (ga) without limiting paragraph (g), whether the offender was a participant in a criminal organisation—

(i) at the time the offence was committed; or

(ii) at any time during the course of the commission of the offence; and

(h) the prevalence of the offence; and

(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(j) time spent in custody by the offender for the offence before being sentenced; and

(k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(l) sentences already imposed on the offender that have not been served; and

(m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and

(n) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and

(o) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender’s successful completion of the program or course; and

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

(i) the offender’s relationship to the offender’s community; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and

(q) anything else prescribed by this Act to which the court must have regard; and

(r) any other relevant circumstance.

Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

The possible penalty outcomes for drug possession charges are wide, ranging from recognisance orders and fines through to actual imprisonment. The significant issues that affect the sentencing outcome relates to the nature of the drug, the quantity or quantities possessed, as well as the motivations driving the possession. For instance, a person who possesses a small amount of cannabis for personal use may possibly be eligible for drug diversion or a drug and alcohol assessment referral. On the other hand, a person who possesses a large amount of methylamphetamine for a commercial purpose may involve a lengthy term of imprisonment.

Significant Cases

The charge of possessing dangerous drugs has involved a number of significant legal decisions over time, including in the High Court of Australia and Queensland Court of Appeal. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with drug possession.

High Court of Australia

In Tabe v The Queen [2005] HCA 59, the High Court of Australia dealt with an appeal that concerned the level of knowledge required for the element of ‘possession’ for a charge of possessing dangerous drugs under section 9 of the Drugs Misuse Act (Qld). The decision remains significant as it confirmed that it is unnecessary for the prosecution to prove that a defendant knew that the person in their possession was a dangerous drug.

Queensland Court of Appeal

In Donnelly v Rose [1993] QCA 223, the Court of Appeal considered whether a minute quantity of a drug (heroin) – the quantity being so small it could not be determined on by an analyst – was sufficient for a charge of possession of a dangerous drug under section 9 of the Drugs Misuse Act (Qld). In allowing the appeal, the Court said a “common sense and reality” test was necessary for a drug possession charge. Applying the High Court decision of Williams v The Queen [1973] HCA 49, the Court stated:

If it appears that the amount of heroin found would, if extracted, not be visible to the naked eye, then no offence has been committed. But it does not follow that proof that a minute speck would then be visible results in a conviction. It is our opinion that for a prosecution of this kind to succeed it must be proved that there was “possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession”

The following drug offences are possible charges that may be substituted for, or charged in addition to, a charge of possessing a dangerous drug:

Drug Possession - Criminal Law Expertise