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Drug Charges - Possessing Suspected Property - S10a Drugs Misuse Act

The following drug charge article was written by a practicing criminal lawyer with experience in drug charges. For information on other drugs charges, visit our Drug Charges home page.

What the law says

Section 9 of the Drug Misuse Act 1986 states:

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

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

  1. The accused had in his or her possession. Possession means physical control or custody. You do not possess a thing unless you have it or else can actually exercise dominion over it. Note that under section 129(1)(c) of the Drugs Misuse act 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 is conclusive poof that the drug was then in the person's possession unless the person shows he or she neither knew or had reason to suspect that the drug was in or on that place.
  2. It is a dangerous drug. Note however that under section 129 of the Drugs Misuse Act:
    • (a) it is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed; and
    • (b) that person shall be liable to be convicted as charged notwithstanding that the identity of the dangerous drug to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

Maximum penalties of imprisonment will depend on the type of drug you have and the quantities you have it in.

The Drugs Misuse Regulations 1987 divide Suspected Property- 10A into more serious Schedule 1 drugs (eg. Amphetamine, Cocaine, Heroin) and less serious schedule 2 drugs (eg Cannabis, Barbital). The regulations then set out specified quantities of the drugs in schedules 3 and 4.

The following table sets out maximum lengths of imprisonment:

Type of drug

Above those listed in Schedule 4

Above those listed in Schedule 3

Other Cases (lesser quantities)

Schedule 1

25 Years

25 Years

20 if drug dependant

Nb, must be below schedule 4 amounts

15 Years

Schedule 2

n/a

20 years

15 Years

Which court will hear the matter

Under section 13 of the Drugs Misuse Act 1986 certain (less serious with maximum penalties of less than 15 years) offences can be dealt with summarily in the Magistrates Court.  These will be possession charges of quantities of Suspected Property- 10A less than the amounts specified in schedule 3 of the Drugs Misuse Regulations.

Other (more serious) offences will be indictable and will be heard in the District Court.

Possible defences

The Drug Misuse Act provides a defence to the offence. Section 124(2) states:

A person is not criminally responsible for an offence defined in section 9 if the dangerous drug is one specified in the Drugs Misuse Regulation 1987, schedule 5 and if the person proves that--

  • (a) it was given to the person by a person to whom the person reasonably believed it had been prescribed by a medical practitioner for the same or a similar condition with which the person was suffering at the time it was given to the person; and
  • (b) the quantity received by the person was no greater than a single dosage prescribed for that person; and
  • (c) it was immediately consumed by the person in that person's presence.

Further restrictions on the defence apply.

Other possible defences to this offence include but are not limited to:

  1. Honestly and reasonably believing that the containers (etc) did not contain a dangerous drug;
  2. Not having control of the drug
  3. Having no knowledge of or reason to suspect the existence or nature of the drug
  4. Duress
  5. Necessity

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