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7.6.3 - Possession of a Drug of Dependence

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Overview

  1. Possession of a drug of dependence is an offence contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the "Drugs Act").
  2. The offence has two elements that the prosecution must prove beyond reasonable doubt:
    1. That the substance in question was a "drug of dependence"; and
    2. That the accused "possessed" that substance.
  3. The second element can be met either by proving possession at common law, or by satisfying the requirements set out in s5 of the Drugs Act (R v Marabito (1990) 50 A Crim R 412).
  4. People who are authorized or licensed to possess a drug of dependence are excluded from the scope of the offence.

    Drug of Dependence

  5. The first element the prosecution must prove is that the substance in question was a "drug of dependence". This term is defined in s4 of the Drugs Act, to include:
  6. These substances fall within the definition of a "drug of dependence" even if they are contained in or mixed with another substance (except for the plants specified in Part 2 of Schedule Eleven).
  7. Unusable portions of a drug (such as the stems, roots and stalks of the cannabis plant) are still considered to be drugs of dependence, so long as they fit within the definition specified by s4 (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

    Proof of drug particulars by certificate

  8. A certificate purporting to be signed by an analyst with respect to any analysis or examination he or she has made is sufficient evidence of the identity of the substance analysed, of the result of the analysis and of the matters relevant to the proceedings as stated in the certificate (Drugs Act s120).
  9. A certificate purporting to be signed by a botanist is sufficient evidence of the identity of the substance examined. There is no need to provide proof that the person who signed the certificate is an analyst or botanist, nor to provide proof of their signature (Drugs Act s120).
  10. The provisions in s120 do not apply if the certificate was not served on the defence at least seven days before the hearing, or if the defence, at least three days before the hearing, gave notice in writing to the informant and the analyst or botanist that the analyst or botanist is required to attend as a witness (s120(2)).

    Possession

  11. The second element the prosecution must prove is that the accused possessed the drug. There are three ways the prosecution can do this (each of which is discussed in turn below):
    1. By relying on the common law definition of possession, and proving that the accused intentionally had the drug in his or her custody, or under his or her control (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185);
    2. By relying on the deeming provision in Drugs Act s5, and proving that the drug was on land or premises occupied by the accused; or
    3. By relying on the deeming provision in Drugs Act s5, and proving that the accused used, enjoyed or controlled the drug.
  12. The prosecution can put common law possession and s5 possession to the jury as alternatives (Marabito v R (1990) 50 A Crim R 412 (Vic CCA)).
  13. If the prosecution relies on the deeming provision in Drugs Act s5, the accused may seek to avoid conviction by proving that he or she did not possess the drug according to the common law definition of possession (see "Disputing Possession Under Section 5" below).

    Common law possession

  14. The first way in which the prosecution can prove that the accused "possessed" a drug of dependence is by relying on the common law definition of possession.
  15. At common law the definition of "possession" contains a conduct element (exercising custody or control) and a mental element (intending to possess) (He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281). These elements are discussed in turn below.

    The conduct element: custody or control

  16. The conduct element of common law possession requires the prosecution to prove that a drug of dependence was physically in the accused’s custody, or was under his or her control (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185).
  17. A person does not need to be carrying the drug, or to have it physically with him or her, to have custody or control over it (R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185).
  18. It is a question of fact whether an item is within a person’s custody or control. A person may have custody or control of an item:

    The mental element: intention to possess

  19. The mental element of common law possession requires the prosecution to prove that the accused intended to possess a drug of dependence (Saad v R (1987) 70 ALR 667; Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523).
  20. The prosecution does not need to prove that the accused intended to possess the particular drug in question. They only need to prove that the accused intended to possess a drug of dependence (He Kaw Teh v R (1985) 157 CLR 523).
  21. Although the intention to possess may be proved by an admission by the accused that he or she intended to possess a drug of dependence, in most cases it will be necessary to infer the requisite intention (Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523; R v Page [2008] VSCA 54).
  22. It will usually be possible to infer an intention to possess a drug of dependence from proof that the accused knew of the existence and nature of the substance at the time that it was possessed (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Saad v R (1987) 70 ALR 667; Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523).
  23. However, the prosecution does not need to prove that the accused knew of the existence and nature of the substance. It is possible for the requisite intent to be inferred from a lesser state of mind, such as:
  24. In some cases, it may also be possible to infer an intention to possess a drug of dependence from the fact that:
  25. However, such cases of "wilful blindness" will be rare, and judges should be cautious before charging the jury about this possibility. There must be evidence that the accused realised there was a risk that he or she possessed a drug of dependence, and deliberately chose to close his or her eyes to that risk so that he or she could later deny knowledge and avoid liability. In the absence of such evidence, it will be a misdirection to direct the jury about wilful blindness (R v Garlick (No.2) (2007) 15 VR 388).
  26. It should be noted that the analysis in this commentary of the way in which to approach the mental element (i.e., by drawing an inference of intention from the accused’s knowledge or awareness), which is drawn from cases such as Saad, Nguyen and Bui, differs from the approach formerly taken in cases such as R v Maio [1989] VR 281. That approach, which allowed the prosecution to establish the mental element without reference to inferences (e.g., by proving that the accused was aware of the significant likelihood that he or she had a drug of dependence in his or her custody or control, and intended to have custody or exercise control over the drug), no longer seems correct in light of these cases.

    Directing the jury about the mental element

  27. Even though the issue of intent may not be a live issue in a trial, and may not have been raised by the defence, as it is an element of the offence a judge is required to direct the jury about it, unless the defence has conceded that a direction is not required (R v Bui [2005] VSCA 300).
  28. While it will usually be possible to infer the requisite intention from the states of mind outlined above (other than wilful blindness), this will not always be the case. A judge should therefore not instruct the jury that they may convict simply because, for example, the prosecution established that the accused was aware that there was a significant or real chance that he or she possessed a prohibited drug (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).
  29. The jury should instead be directed that proof that the accused was aware of the likelihood that it was a drug of dependence that was possessed is capable of sustaining the inference that the accused intended to possess a drug of dependence. At the same time, the judge should make clear to the jury that it is for them to determine whether that inference should be drawn, based on all of the facts and circumstances (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).
  30. In charging the jury on this issue, judges should follow as nearly as possible the language used in R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to ensure that the phrase "is capable of sustaining the inference" is used whenever reference is made in this context to proof of belief "in a significant or real chance" (R v Page [2008] VSCA 54).
  31. The jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only inference that is reasonably open in the circumstances of the case (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 54).
  32. Where intention is to be proved by inference, the judge should direct the jury about the evidence that is capable of sustaining that inference (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Page [2008] VSCA 54).
  33. A judge should not attempt to explain the meaning of the expression "significant or real chance", other than to tell the jury that the words have their ordinary meaning and that it is a question for them to decide (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).

    No need to prove exclusive possession

  34. Despite authority to the contrary, it is not necessary for the prosecution to prove "exclusive possession" (i.e., the right of the accused to exclude everyone else, other than those with whom he or she was acting in concert, from interfering with the drug). The accused can "possess" a drug at common law even if there is a reasonable possibility that someone else also possessed that drug (R v Tran (2007) 16 VR 673. See also R v Dibb (1991) 52 A Crim R 64 (NSW CCA); R v Cumming (1995) 86 A Crim R 156 (WA CCA) but c.f. Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78 CLR 521)).

    Deemed possession: occupation of land or premises

  35. The second way in which the prosecution can prove that the accused "possessed" a drug of dependence is by relying on the deeming provision in s5 of the Drugs Act, and proving that a drug of dependence was on land or premises occupied by the accused (R v Clarke and Johnston [1986] VR 643).
  36. It is not necessary for the prosecution to prove that the accused intended to possess the drug (cf. common law possession). Once the prosecution has proven that the accused was in occupation of the land or premises upon which the drug was found, the accused will be deemed to have been in possession of it (unless the court is satisfied to the contrary: see below) (R v Momcilovic (2010) 25 VR 436; R v Clarke and Johnston [1986] VR 643; Marabito v R (1990) 50 A Crim R 412 (Vic CCA); R v Tran [2007] VSCA 19).

    When does a person "occupy" land or premises?

  37. The meaning of "occupation" in relation to s5 is not to be determined by reference to indicia of occupancy applicable in other contexts. Its meaning is to be determined by looking at the "mischief" against which the legislation is concerned – the possession of a drug of dependence (R v Phung [2003] VSCA 32).
  38. In this context, occupation means more than merely being present at a location at the relevant time. An occupier must be in practical control of the land or premises (R v Phung [2003] VSCA 32; R v Tran [2007] VSCA 19).
  39. The ability to control access to land or premises is crucial to determining whether a person is in occupation of that land or premises (R v Phung [2003] VSCA 32; R v Tran [2007] VSCA 19).
  40. "Occupation" includes the right to possess premises. It is not necessary for an occupier to be always present at those premises. A person who is temporarily absent from premises they own or lease remains the occupier when absent on holidays, whilst working or living elsewhere, or whilst briefly separated from their spouse (R v Dang [2004] VSCA 38).
  41. An owner who furnishes a house and keeps it ready for habitation whenever they want to go will be in occupation, even if they only reside there one day a year (R v Clarke and Johnston [1986] VR 643; Shire of Poowong and Jeetho v Gillen [1907] VLR 37).
  42. However, merely attending premises at various times, or leaving property there with the owner’s permission, is not "occupation" for the purposes of s5 (see, e.g., R v Pisano [1997] 2 VR 342).
  43. Section 5 can apply to joint possession. It is not necessary for the prosecution to prove that the accused was the sole occupier of the relevant land or premises (R v Doan (2001) 3 VR 349).
  44. Whether the accused’s connection with premises falls within the definition of occupation is a matter of fact for the jury to determine (R v Phung [2003] VSCA 32; R v Dang [2004] VSCA 38).
  45. As the word "occupation" is capable of a number of meanings depending on the context in which it is used, it is unhelpful to direct the jury that the word is to be given its ordinary English meaning (R v Phung [2003] VSCA 32).

    Deemed possession: use, enjoyment or control

  46. The third way in which the prosecution can prove that the accused "possessed" a drug of dependence is by relying on the deeming provision in s5 of the Drugs Act, and proving that the accused used, enjoyed or controlled a drug of dependence (R v Clarke and Johnston [1986] VR 643).
  47. It is not necessary for the prosecution to prove that the accused intended to possess the drug (cf. common law possession). Once the prosecution has proven that the accused used, enjoyed or controlled a drug, he or she will be deemed to have been in possession of it (unless the court is satisfied to the contrary: see below) (R v Momcilovic (2010) 25 VR 436; R v Clarke and Johnston [1986] VR 643; Marabito v R (1990) 50 A Crim R 412 (Vic CCA); R v Tran [2007] VSCA 19).

    When does a person "use, enjoy or control" a drug?

  48. The word "use" is defined in s70(1) of the Drugs Act to mean:
  49. In this context, the term "enjoy" does not have any separate meaning from the term "use" and should not be put forward as an independent basis for deeming possession.
  50. A person has been held to "control" drugs for the purposes of s5 where those drugs were concealed in their car (R v Burr 6/4/1989 Vic CCA).
  51. It is not necessary for the purposes of s5 for the prosecution to prove that the accused was "knowingly" in control of the drug. This means that the prosecution can prove that the accused "controlled" a drug without proving that the accused knew of the presence or nature of the drug (R v Burr 6/4/1989 Vic CCA).
  52. Section 5 can apply to joint possession or direct control exercised jointly. It is not necessary for the prosecution to prove that the accused was the only person who used, enjoyed or controlled the drug (R v Doan (2001) 3 VR 349).

    Disputing Possession Under Section 5

  53. Once the prosecution has proved that a prohibited drug was used, enjoyed or controlled by the accused, or that the accused was in occupation of the land or premises upon which the drug was found, the accused will be deemed to be in possession of that drug unless he or she can "satisfy the court to the contrary" (Drugs Act s5).
  54. This requires the accused to prove that he or she did not possess the drug according to the common law definition of "possession" (Marabito v R (1990) 50 A Crim R 412 (Vic CCA); R v Clarke and Johnston [1986] VR 643; R v Tran [2007] VSCA 19).
  55. The accused must prove this on the balance of probabilities. This is a legal burden rather than a mere evidentiary burden (R v Momcilovic (2010) 25 VR 436).
  56. The accused can meet this burden by establishing, on the balance of probabilities, that despite the requirements of s5 being satisfied:
  57. Depending on the circumstances, the accused may be able to disprove the mental element by establishing, on the balance of probabilities, that he or she:
  58. However, the precise nature of what the accused must prove will depend on all the circumstances of the case. For example, it will not be sufficient to establish that the accused did not know, or was not aware of the likelihood, that the substance was a drug of dependence, if it is possible to infer an intention to possess from the fact that the accused would have been suspicious about the nature of the substance possessed, but deliberately failed to make inquiries for fear of learning the truth (see, e.g., R v Garlick (No.2) (2007) 15 VR 388). In such cases, the accused will also need to prove that he or she did not deliberately choose to close his or her eyes to the risk that he or she possessed a drug of dependence.
  59. The judge is only required to direct the jury about whichever issues (if any) arise on the evidence. For example, if the only issue which arises on the evidence is whether the accused knew of the drug’s presence, there is no need to direct the jury about the accused’s intention to exercise control over the drug (R v Tran [2007] VSCA 19; R v Clarke and Johnstone [1986] VR 643; R v Mateiasevici [1999] 3 VR 185; R v Momcilovic (2010) 25 VR 436).
  60. The Court of Appeal has declared that s5 of the Drugs Act cannot be interpreted consistently with the presumption of innocence under s25(1) of the Charter of Human Rights and Responsibilities Act 2006. The declaration does not affect the validity or operation of s5, or any trial which relies upon s5.

    Authorisation and Licensing

  61. Section 73 specifies that a person will be guilty if they are in possession of a drug of dependence, "without being authorized by or licensed under this Act or the regulations to do so".
  62. It has been held that the question of authorisation or licensing is a matter of "exception" or "qualification" for the purposes of s104 of the Drugs Act. That section states that the burden of proving any "matter of exception qualification or defence" is on the accused.
  63. It is therefore for the accused to prove, on the balance of probabilities, that he or she was appropriately authorised or licensed – rather than being for the prosecution to disprove beyond reasonable doubt (R v Ibrahim (1987) 27 A Crim R 460; Horman v Bingham [1972] VR 29).
  64. Provisions concerning authorisation and licensing are contained in Divisions 2 and 4 of the Act respectively.
  65. Sections 118 and 119 of the Act contain evidentiary provisions that may be of assistance in cases where there is a dispute about authorization or licensing.

    Trafficking, Cultivation and Possession

  66. If the accused is charged with trafficking or cultivation as well as possession, and the relevant acts of trafficking, cultivation and/or possession completely overlap, a conviction should only be recorded in relation to one of the offences (R v Langdon (2004) 11 VR 18; R v Mason [2006] VSCA 55; R v Nguyen [2006] VSCA 158; R v Nunno [2008] VSCA 31; R v Filipovic [2008] VSCA 14). See Trafficking in a Drug of Dependence for further information.

    Attempted Possession

  67. Section 73 of the Drugs Act makes it an offence to have in possession or "attempt to have in possession" a drug of dependence. A person can therefore be charged with attempted possession directly under s73, rather than having to rely on s321M of the Crimes Act 1958.
  68. A person charged with attempted possession under s73 will be subject to the same penalties as a person charged with possession. In contrast, a person who is charged with attempted possession under s321M of the Crimes Act 1958 will be subject to the lesser penalties set out in s321P of that Act.
  69. Section 321N of the Crimes Act 1958 sets out the conduct that will constitute an attempt. This section applies to a person charged with attempted possession under the provisions of the Drugs Act by virtue of s321R of the Crimes Act 1958.
  70. For more information about attempts see Attempt.

    Mitigating Circumstances

  71. Section 73 of the Drugs Act states that a person who possesses a drug of dependence will be subject to the penalty set out in s73(1)(c), unless he or she can satisfy the court, on the balance of probabilities, of one of the following mitigating circumstances:
  72. As these are mitigating circumstances, rather than elements of the offence, their existence is for the judge to determine when sentencing the accused, rather than for the jury to decide when determining the accused’s guilt (R v Pantorno [1988] VR 195, overruling R v Bridges (1986) 20 A Crim R 271. See R v Wyllie [1989] VR 21 for guidance on sentencing in possession cases).

 

Last updated: 5 May 2010

In This Section

7.6.3.1 - Charge: Possession of a Drug of Dependence (Section 5 Possession - Occupation)

7.6.3.2 - Checklist: Possession of a Drug of Dependence (Section 5 - Occupation - Simple)

7.6.3.3 - Checklist: Possession of a Drug of Dependence (Section 5 - Occupation - Disputed)

7.6.3.4 - Charge: Possession of a Drug of Dependence (Section 5 Possession – Use, Enjoyment or Control)

7.6.3.5 - Charge: Possession of a Drug of Dependence (Common Law Possession)

7.6.3.6 - Checklist: Possession of a Drug of Dependence (Common Law Possession)

See Also

7.6 - Drug Offences

7.6.1 - Trafficking in a Drug of Dependence

7.6.2 - Cultivation of Narcotic Plants