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Possessing Controlled Drugs

What the law says

Sections 308.1 of the Commonwealth Criminal Code states:

(1)   A person commits an offence if:

(a)   the person possesses a substance; and

(b)   the substance is a controlled drug; and

(2)   The fault element for paragraph (1)(b) is recklessness.

(3)   If:

(a)   a person is charged with, or convicted of, an offence against subsection (1); and

(b)   the offence is alleged to have been, or was, committed in a State or Territory;

the person may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described)

Note: Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and territory laws.

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 possessed a substance; and

2. The substance is a controlled substance,

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

The Maximum penalty for the offence of Possessing Controlled Drugs is 2 years imprisonment or 400 penalty units or both.

Section (4) of the Act states: A person punished under subsection (3) must not be:

(a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or

(b) fined an amount that exceeds the amount set out in subsection (1).

Section (5) states Subsection (3) does not limit:

(a) Part 1B of the Crimes Act 1914; or

(b) Section 68 or 79 of the Judiciary Act of 1903; or

(c) Any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction.

Which court will hear the matter

This matter is Commonwealth Offence which means it is dealt with in the Supreme Court.

Possible defences

Possible defences to this offence include but are not limited to

  1. The accused did not possess a substance.
  2. The substance was not a controlled substance
 

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