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

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This charge can be used where it is alleged that the accused possessed a drug of dependence, the prosecution relied on the deeming provision in s5 of the Drugs, Poisons and Controlled Substances Act, and alleged that the accused occupied the land or premises on which the drug was found.

If the prosecution relied on the deeming provision in s5 and alleged that the accused used, enjoyed or controlled the drug, use Charge: Possession of a Drug of Dependence (Section 5 Possession – Use, Enjoyment or Control).

If the prosecution relied on the common law definition of possession, use Charge: Possession of a Drug of Dependence (Common Law Possession).

 

I must now direct you about the crime of possessing a drug of dependence. To prove this crime, the prosecution must prove the following 2 elements beyond reasonable doubt:

One - that the substance in question was a drug of dependence; and

Two - that the accused possessed that substance.

I will now explain these matters in more detail.

Drug of Dependence

The first element that the prosecution must prove beyond reasonable doubt is that the substance in question was a drug of dependence.

The substance in question here was [identify relevant material, e.g "the substance in the three plastic bags tendered as Exhibit X and analysed in the certificate of analysis, Exhibit Y"].

In this case, [describe the evidence and arguments (or concession) about the identification of the substance as a particular drug].

The law says that [insert name of drug] is a drug of dependence. So if you are satisfied beyond reasonable doubt that the substance in question was or included [insert name of drug], then this element will be satisfied, and you should go on to consider the second element.

Possession

The second element that the prosecution must prove is that the accused possessed the substance in question.

In this case the prosecution seeks to prove this element by relying on a law that says that a substance is deemed to be in the possession of a person if it is upon any land or premises occupied by him or her, unless the person satisfies the court to the contrary. This requires the prosecution to prove two things beyond reasonable doubt.

Occupation

First, the prosecution must prove that NOA occupied the [land / premises] in question – in this case the [insert precise details of what it is alleged the accused occupied – e.g. the house, the garage, the whole of a plot of land or a specific part of that land].

For a person to "occupy" a property, s/he must be in practical control of that property. It is not sufficient for him/her to have simply been present at that location when the drug was found, or to have gone there occasionally. S/he must, for example, be able to control access to the property.

This does not mean that a person always has to be present at a property to be in occupation. For example, a person will still occupy his/her house even when s/he is away on holidays. This is because s/he has the right to occupy that house, even if s/he is temporarily absent.

It is also not necessary for a person to own a property to be in occupation. For example, a person who rents the house where s/he lives occupies that house. In fact, the owner of a house that is leased out no longer occupies that house, because s/he is no longer in practical control of it. S/he is not, for example, able to come and go as s/he pleases. It is the tenant who is in occupation of that house during the period of the lease.

The evidence was [summarise evidence and arguments concerning occupation, addressing detail only if in issue.]

Drug of dependence in that location

The second part of this element requires the prosecution to prove that the drug of dependence was [on that land / in those premises].

The evidence was [summarise evidence and arguments concerning the location and chain of custody in respect of the substance, addressing detail only if in issue.]

Defences

[This section addresses three possible ways the defence may contest the offence: by establishing that the accused did not have custody or control of the drug; by establishing the accused did not intend to possess the drug; or by establishing that the accused was authorised or licensed to possess the drug. Judges will need to adapt these parts of the charge if the defence contests the offence on multiple grounds.]

The accused did not have custody or control of the drug

[If the defence argued that the accused did not have custody or control of the drug, add the following shaded section]

Even if you are satisfied that NOA occupied [land/premises] where police located a drug of dependence, you must find him/her not guilty of this offence if the defence satisfies you that s/he did not have custody or control of that drug.

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – the defence must prove this matter on the balance of probabilities. That is, the defence must satisfy you that it is more likely than not that NOA did not have custody or control of the drug.

[If it is alleged that the accused maintained custody or control of a drug from a distance, add the following darker shaded section]

The law says that a person can have custody or control of a substance even if he or she is not carrying or watching over it. A person can have custody or control of a substance if s/he has it in a place where s/he [has the power / asserts the right] to place his/her hands on it when s/he wishes.

This means that it is not sufficient for the defence to prove that the accused did not have the drug physically with or near him/her when it was found. To prove that the accused did not have custody or control of the substance in question here, the defence must prove that s/he did not have it in a place where s/he [had the power / asserted the right] to place his/her hands on it when s/he wished.

[If there is evidence that others had custody or control over the drug, add the darker shaded section]

It is possible for more than one person to possess an item. This means that it is not enough for the accused to prove that someone else shared custody or control of the item in question here. The accused must prove that s/he did not also have custody or control of that item.

If the defence cannot prove this to you, and the prosecution has proven the two elements I have described, then you should find the accused guilty of possession of a drug of dependence.

The evidence was [summarise evidence and arguments concerning custody or control of the drug, addressing detail only if in issue.]

The accused did not intend to possess the drug

[If the defence argued that the accused did not intend to possess the drug, add the following shaded section]

Even if you are satisfied that NOA occupied [land/premises] where police located a drug of dependence, you must find the accused not guilty of this offence if the defence satisfies you that NOA did not intend to have a drug of dependence in his/her custody or under his/her control.

It is not enough for the accused to prove that s/he did not know that the substance in his/her custody or control was the specific drug named in the indictment – in this case [insert name of drug]. To prove this matter, the defence must prove that the accused did not intend to have custody or control of any drug of dependence.

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – the defence must prove this matter on the balance of probabilities. That is, the defence must satisfy you that it is more likely than not that NOA did not intend to have a drug of dependence in his/her custody or control.

This is a matter that must be proved by inferences. You will need to decide if you can infer from all of the evidence in the case that NOA did not intend to have custody or control of a drug of dependence.

In this case, the defence argued that [insert basis for the inference that NOA did not have the requisite intention, such as "NOA did not know, or was not aware of the likelihood, that the drug was in the house" of "NOA did not know, or was not aware of the likelihood, that the substance was a drug of dependence"]. They argued that you can infer from this fact that NOA did not intend to have a drug of dependence in his/her custody or control. [Summarise defence arguments and evidence.] By contrast, the prosecution argued [insert prosecution arguments and evidence].

It is for you to determine whether [repeat basis for the defence inference stated above, e.g., "NOA did not know, or was not aware of the likelihood, that the drug was in the house"], and whether to infer from that fact, and all of the circumstances of the case, that NOA did not intend to have custody or control of a drug of dependence.

Because this is not an inference that the prosecution is asking you to draw, it does not need to be proven beyond reasonable doubt. It only needs to be proven on the balance of probabilities. This means that you do not need to be satisfied that it is the only inference that is reasonably open in the circumstances. You can infer that the accused did not intend to have a drug of dependence in his/her custody or control if you are satisfied that that is more likely than not to have been the case.

If you find that, on the balance of probabilities, NOA did not intend to have custody or control of a drug of dependence, then you must find him/her not guilty of this offence. However, if the defence cannot prove this to you, and the prosecution has proven the two elements I have described, then you should find the accused guilty of possession of a drug of dependence.

The accused was authorised or licensed to possess the drug

[If it is alleged that the accused was authorised or licensed to possess a drug of dependence, add the following shaded section]

Even if you are satisfied that NOA occupied [land/premises] where police located a drug of dependence, you must find the accused not guilty of this offence if the defence satisfies you that NOA was [authorised / licensed] to possess a drug of dependence.

In this case, the defence alleged that NOA was [authorised/licensed] to do so by virtue of [insert relevant evidence]. The prosecution disputed this, submitting that [insert relevant evidence]. [1]

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – this is a matter which the defence must prove on the balance of probabilities. That is, you must be satisfied by the defence that it is more likely than not that NOA was [authorised/licensed] to possess a drug of dependence.

If the defence cannot prove this to you, and the prosecution has proven the two elements I have described, then you should find the accused guilty of possession of a drug of dependence.

 

Summary

To summarise, before you can find NOA guilty of possession of a drug of dependence, the prosecution must prove to you beyond reasonable doubt:

One – that the substance in question was a drug of dependence; and

Two – that the accused possessed that substance. This will be the case if the substance was found on land or premises occupied by the accused.

If you find that the prosecution has not proved both of these matters beyond reasonable doubt, then you must find NOA not guilty of possession of a drug of dependence.

Defences

[If the accused contested the offence, despite the elements being satisfied, add the following shaded section]

However, even if you decide that these elements have been proven, NOA will not be guilty of this offence if the defence has proven, on the balance of probabilities, that s/he [did not have custody or control of a drug of dependence / did not intend to have a drug of dependence in his/her custody or under his/her control / was authorised or licensed by law to possess a drug of dependence].

 

Notes

[1] Provisions concerning authorisation and licensing are contained in Divisions 2 and 4 of the Drugs, Poisons and Controlled Substances Act 1981. See also ss118 and 119 of that Act for evidentiary provisions that may be of assistance in relation to such matters.

 

Last updated: 27 March 2019

See Also

7.6.3 - Possession of a Drug of Dependence

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)