Section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act)  makes it an offence to be in possession of a drug of dependence.  A drug of dependence can include, but is not limited to:

  • Ice
  • Heroin
  • Cocaine
  • Cannabis
  • Synthetic Cannabis

Possession at Common Law

You will be found to be in possession of a drug if

  1. you have physical control of the drug
  2. you have custody of the drug

Police must prove beyond reasonable doubt that you knew the drug was there and you intention of possessing the drug. Whilst also keeping this in mind, possession can also be deemed positive if the drugs are

  • on any land occupied by you
  • used, enjoyed or controlled by you

Unless you can prove otherwise. This further expansion of the definition of possession was made possible pursuant to Section 5 of the DPCS Act.

The Statutory Burden of Proof

Therefore police must prove, that you occupied the premises or land upon which the drugs were found or that you were using, controlling or enjoying the drugs in any place. If this is proven beyond reasonable doubt then it becomes up to you or your legal counsel to satisfy to the court otherwise.  That is, to prove on the balance of probabilities, you were not in common law possession of the drug.

There then becomes a shift of the burden of proof, and is important to note that the burden shifts to the accused on a balance of probabilities instead of the higher burden of beyond reasonable doubt.

Furthermore, in the case of  Fox v Warde [1978] VR 362, the principle that was established was that mere use of the premises is insufficient for police to prove possession.

Deemed Possession

There are some situations where you will satisfy the possession requirement of the offence and they include

  1. If you are the occupier of land where cannabis is grown
  2. If you are the husband or wife in a house where drugs are found
  3. If you occupy a room in a motel where drugs are found
  4. If you are the owner or driver of a car where drugs are found (R v Burt [1989] VicSC 130)

The burden of proof becomes on you and your legal counsel to prove that you did not know the drug was there or even if you did that you did not have the intention to possess it.

If you would like any more information or would like one of our expert lawyers to assist you please contact us anytime on 0403 297 655.