Published by Geoff Harrison | 5 July 2023
The offence of possess prohibited drug is set out in section 10 of the Drug Misuse and Trafficking Act 1985. This offence is prosecuted in the Local Court and carries a maximum penalty of a fine of $2,200 and/or 2 years imprisonment. One of the main cases that sets to the principles relating to possession is the case of: He Kaw The v R  HCA 43. This case sets out that an essential aspect of possession is knowledge of the item in one's possession. The suggested jury trial direction is set out below which encapsulates this notion of knowledge along with the notion of joint possession. Where the Crown asserts individual possession of drugs, the Crown must exclude the possibility of the drugs being in the exclusive possession of somone else: see R v Filippetti (1978) 13 A Criminal R 335.
Forgotten possession or forgetting about having possessed an item, for example forgetting about or leaving drugs in a wallet or handbag is not a defence, see R v Martindale  1 WLR 1042 at 1044. However, there is a defence if the amount of drug located is minuscule, see William v R  HCA 49. In Williams, Murphy J stated at :
In my opinion, this is a case for the application of the principle that the law is not concerned with trifles (de minimis non curat lex). This principle has been recognized throughout legal history and is often applied to avoid imposition of punishment after a finding of guilt where an offence is trivial. This application of the principle is expressed in various State Acts of general application (and in s.19B of the Crimes Act 1914 (Cth), as amended). The de minimis principle is also applied to avoid hysterical or oppressive law enforcement; cases in which a finding of guilt would tend to bring the law or the judicial system into ridicule or contempt because of triviality. This is such a case. Even if there were no other basis for treating the conviction as bad, it should be set aside on this ground. ...
Offences related to deemed supply will be discussed separately under the heading of Supply Prohibited Drug along wit the Carey Defence ie. possession of drugs with an intention to return to the actual owner.
Suggested Jury Direction:
A dictionary would tell you that to possess something means to have that thing. I need to clarify that concept of possession as it is recognised by the law in the present context.
The essence of the concept of possession in law is that, at the relevant time, you intentionally have control over the object in question. You may have this control alone or jointly with some other person or persons. You and those persons (if any) must have the right to exclude other people from it. If these conditions are fulfilled, then you may be said to have possession of that object, whether it is your own sole possession or whether it is a joint possession with somebody else.
It is not necessary for you to have something in your hand, pocket, wallet or purse before the law says that you have it in your possession. Further, you do not need to own something in order to possess it. You can possess something temporarily, or for some limited purpose. You can possess something jointly with one or more other persons.
I will give you some examples. Some of you probably have a television set in your home. Even though you are now physically here in this courtroom and the television set is back in your home, the law would regard you nonetheless as being in possession of it.
You and your spouse might have bought it jointly, and you might accordingly both own it. The law would regard you, as well as your spouse, as being in possession of it.
Perhaps you have not bought the set but are renting it from a rental company. You do not own it. Nonetheless, the law would regard you, but not the rental company, as being in possession of it.
Perhaps you have not bought it and are not renting it but a friend has left it with you to mind for a few weeks whilst he or she is away on holidays. For the time being, you are in possession of it and your friend is not.
In defining possession earlier, I used the phrase “intentionally have control”. This is to make clear that if something has been, for example, slipped into your suitcase unknown to you, you are not regarded as having possession of it in law, even though the case that you are carrying could be said to be under your control.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 10
10 POSSESSION OF PROHIBITED DRUGS
(1) A person who has a prohibited drug in his or her possession is guilty of an offence.
(2) Nothing in this section renders unlawful the possession of a prohibited drug by--
(a) a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966 , (a1) a person acting under a poppy licence under the Poppy Industry Act 2016 , (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, (b1) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q, (c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or (d) a person who-- (i) has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and (ii) has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.
DRUG MISUSE AND TRAFFICKING ACT 1985 - SECT 21
The penalty for an offence under this Division is a fine of 20 penalty units or imprisonment for a term of 2 years, or both, except as otherwise expressly provided by this Division.