Criminal Drug Defences in NSW

Defending a Drug Charge:

Just like with all criminal offences in New South Wales, there are a whole range of legal defences which can be applied and argued in Court for various drug offences.

Drug offences are considered serious criminal offences in our society due to the serious affects they have on peoples health and social being. However, just because a person has been charged by Police for certain drug offences does not automatically make that person guilty of such an offence. Often there can be a very reasonable explanation made to show that a person is not guilty of drug offences and other times it becomes apparent that Police have not followed very specific and particular procedures in carrying out their Police investigations or arrests. Police are human and are often prone to human error which can open up various defences that can be successfully argued in a Court of law.

There are a number of issues which could lead to a potential defence being raised in relation to certain drug offences or even circumstances where a charge may be withdrawn or a defender found not guilty, some of these include:

  • Insufficient evidence to prove beyond a reasonable doubt that you are guilty of the offence;
  • Inability to prove that you had possession of the drugs in question;
  • Inability to prove that you had or should have had knowledge of the possession of the drugs in question;
  • Police have carried out illegal or improper police procedures in the lead up to the arrest and charge;
  • Circumstances where a Police witness does not attend Court to give evidence;
  • Police may have charged you with the wrong criminal offence;
  • A known criminal defence has successfully be argued in Court;
  • Police agree to negotiate a withdrawal or reduction of the charges.

Any of the above issues could potentially raise questions for your defence lawyer to argue for you to be found not guilty in Court.

What legal drug defences exist in New South Wales?

Illegal Search:

Some of the most common circumstances where people are charged with drug offences is following a Police search which results in drugs being found by the Police and certain charges which follow.

What you need to understand is that the Police have very strict and specific procedures which they are obligated to carry out especially when it comes to Polices investigations and searches. Far too often we see human error occur when it comes to the carrying out of Police procedures, after all Police are humans and are often prone to human error.

One of the most common breaches of Police procedure occurs when the Police carry out “illegal searches” on defendants. Police have very specific procedures they must follow in order to search a person but one of the most important issues that the Police need to consider is whether they have “reasonable suspicion” that you are carrying drugs on you.

What is considered to be “Reasonable Suspicion”?

The basis upon performing a Police search needs to contain a certain level of “reasonable suspicion” based upon specific facts known to the Police. Police cannot just go around searching people randomly they must have “reasonable suspicion” that the person is carrying weapons or illegal drugs.

There are some very common situations which can raise the “reasonable suspicion” of a person to Police so of these may include:

  • Police observe a person who is possibly under the influence of an illicit drug;
  • Police smell a presence of a drug (usually cannabis) on a person;
  • Police witness behaviours usually associated with possession or supply of drugs such as money being exchange;
  • Police sniffer dogs indicate that a person may be carrying drugs on them.

There are various other circumstances which can obviously raise the reasonable suspicion of Police based on factual evidence that a person may be in possession of drugs.

Personal searches

Police do have the power of personal search under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 which provides Police with the power to “stop, search and detain” a person who they “reasonably suspect” may be in possession of drugs.

Vehicle Searches

In relation to vehicle searches Police have the power to search a vehicle under section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 but similar to personal searches Police must have a reasonable suspicion that there are drugs in the vehicle in question. 

Property searches

To search a persons private residence or other form of private property, without invitation or consent, it is important that Police obtain a search warrant (unless in emergency situations) to enter the private premises.

Obtaining a search warrant require Police to swear an oath to an authorised officer that there is “reasonable suspicion” of crimes being committed on the private premises in question. Police need to adhere to the laws outlined under section 47, 47A and 48 of the Law Enforcement (Powers and Responsibilities) Act 2002.

Evidence from illegal searches

Where the Police have not acted in accordance to the appropriate Police procedures then they may have obtained drugs or evidence by way of an “illegal search”.

It Police have conducted an illegal search and obtained drugs or evidence then this may be not be admissible as evidence when it comes to the Court hearing. The prosecution must establish the desirability of admitting the evidence under section 138 of the Evidence Act 1995, (NSW).

Lack of Knowledge:

Possession of a prohibited drug is an offence under section 10 of the 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

In order for the prosecution to find a defendant guilty of a drug possession offence they must prove beyond a reasonable doubt that the defendant had actual control of the drugs that were ceased from their immediate possession, house or vehicle. Just because someone owns a vehicle or premises in which drugs were located does not automatically mean that they had actual control over the drugs.

What is custody or control?

The term “custody” refers to the 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

It is possible for a person to be found guilty of drug possession if they were only had momentary custody and control of the drugs in question. Take for example being at a party and someone takes a puff of a cannabis joint and then passes it on then it is possible for that person to be found guilty of possession despite only the short period in which they maintained custody and control of the illegal drugs.

Lack of Knowledge:

It will be up to the police prosecution to prove that the defendant had actual knowledge that they had physical custody and control of the drugs, not just to prove this beyond a reasonable doubt.

The test for the prosecution is to prove “actual knowledge” not just that the defendant had or should have had knowledge “beyond a reasonable doubt”. Of course it can be inferred due to other evidence that the defendant had knowledge of the custody and control of drugs. Take for example if Police conduct a legal search and find a person to be in possession of drugs then a Court would reasonably “infer” that the defendant had “actual knowledge” and control over the drugs.

In such a scenario where a person is found to be in custody of drugs then it would be hard to prove against the inference that the person had actual knowledge of the drugs. This would be the same if drugs were found in a part of a private residence where it could be shown that only the defendant had access to the area where the drugs were found, such as a bedside drawer.

Insufficient Evidence:

As with any criminal offence the police prosecution needs to prove that a defendant is guilty of the particular offence “beyond a reasonable doubt”. The “beyond a reasonable doubt” is the test that criminal Courts need to apply and basically this means that the prosecution needs to show the Court that the defendant is guilty generally by proving through evidence tendered to the Court that the defendant is guilty beyond a reasonable doubt.

You see in the Australian criminal system an offender is considered innocent until proven guilty by a Court.

So in some cases we see the defendant has been charged with certain drug offences yet the Police have insufficient evidence to prove that the defendant is guilty beyond a reasonable doubt. Where the evidence is insufficient we can enter into negotiations with Police to have the charges withdrawn or reduced to a lesser charge.

Common Defences used in Drug Matters

Where you had Drugs for Personal Use and Not for Supply

A common situation often comes up where a person has been charged under section 29 of the Drug Misuse and Trafficking Act 1985, which provides that if a person has a quantity of drugs more than the trafficable quantity then they are deemed to have it in their possession for the purpose of supply. This is known as “deemed supply” and can carry far more serious consequences that the more minor charges of possession.

It is therefore up to the defendant to prove that it did not have the trafficable quantity of drugs in their possession for the purpose of supplying it but rather for the purpose of their own personal use. Section 29(a) of the Drug Misuse and Trafficking Act 1985 is the section that deals with situations where an offender should not be deemed to have the drugs in their possession for supply or deemed supply.

The critical issue here is to show that the drugs found were for personal use only. Such circumstances where weight scales, sealable drug bags and other paraphernalia related to supply have been found by Police then this obviously makes it harder to prove that the drugs were only for personal consumption.

Police Cannot Prove that you Possessed the Drugs

As discussed above the issues surrounding possession can often raise questions over whether or not the defendant had custody and control of the drugs found. Far too often we see that people have been charged with drug possession when drugs have been found in a vehicle or house that is either owned or rented by the defendant. But the reality is that the prosecution must prove that the defendant had actual knowledge of the existence of the drugs. Often when it can be show that the property or vehicle in which the drugs were found is frequented by many different people then it can be hard for the prosecution to prove that the defendant had actual knowledge of the existence of the drugs.

This is definitely a common defence that can be raised in order to seek out a not guilty verdict in Court or to negotiate the withdrawal of charges prior to the matter going to trial.

Duress – Forced to Sell Drugs

A defendant in specific circumstances can raise the defence of “duress” which basically occurs when a person threatens another person with death or injury to them or someone they know. Due to the specificity of the circumstances involved this type of defence is rarely used in Court.


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Sydney Drug Lawyer NSW

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Sydney NSW
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If you need further advice or assistance in relation to any of the above NSW Drug Law Defences please contact us on the above details.