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

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This charge can be used where it is alleged that the accused possessed a drug of dependence, and the prosecution relied on the common law definition of possession.

If 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, use Charge: Possession of a Drug of Dependence (Section 5 Possession – Occupation).

 

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

Two - the accused possessed that substance.

I will now explain these elements 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 this substance. This requires the prosecution to prove two things beyond reasonable doubt.

Custody or Control

First, the prosecution must prove that NOA had the substance physically in his or her custody or otherwise under his or her control.

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

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

The law says that a person can have custody or control of a thing even if he or she is not carrying or watching over it. You may therefore find that the accused had custody or control of the substance in issue here if the prosecution satisfies you that it was in a place where the accused [had the power / had the right] to place his/her hands on it when s/he wished.

Intention to Possess

The second part of this element requires the prosecution to prove that the accused intended to possess a drug of dependence.

The prosecution does not need to prove that the accused intended to possess the specific drug named in the indictment – in this case [insert name of drug]. This part of the second element will be satisfied as long as the prosecution proves that accused intended to possess any drug of dependence.

In determining whether or not the accused intended to possess a drug of dependence, you will need to decide if you can draw an inference from all of the evidence in the case that s/he had this intention. [1] You will remember what I have told you about inferences.

You may be able to draw this inference if you find that the accused knew or believed that it was a prohibited drug, such as [insert name of drug], over which s/he had custody or control.

However, you do not need to find that the accused actually knew s/he had custody or control over a prohibited drug in order to draw this inference. Proof that the accused was aware that there was a significant and real chance that s/he had custody or control over a prohibited drug is also capable of sustaining the inference that s/he intended to possess a drug of dependence.

This means that, if you find that the accused was aware of the likelihood that the substance over which s/he had custody or control was a drug of dependence, you may draw the inference that s/he had an intention to possess such a drug. That is, you may infer that because the accused was aware that there was a significant and real chance that s/he had custody or control over a prohibited drug, s/he must have intended to possess that drug.

[If "wilful blindness" as to the nature of the substance arises as an issue, consider the shaded section]

["Wilful blindness" may be relevant if there is evidence that the accused realised there was a risk that s/he possessed a drug of dependence, and deliberately chose to close his/her eyes to that risk so that s/he could later deny knowledge and avoid liability.]

You could also draw an inference that NOA intended to possess a drug of dependence if you find that, given the circumstances, s/he would have suspected the nature of the substance s/he possessed, and deliberately failed to make further inquiries for fear of learning the truth. That is, s/he was aware that there was a risk that s/he possessed a drug of dependence, but deliberately closed his/her eyes to that risk to avoid possible liability. In such a situation, you may conclude that although NOA did not positively know that s/he possessed a drug of dependence, s/he nevertheless intended to do so. [2]

It is for you to determine whether to infer, from all of the facts and circumstances of the case, that the accused intended to possess a drug of dependence. However, it is important that you do not draw such an inference unless you are satisfied that it is the only inference that is reasonably open in the circumstances. If any other reasonable explanation is available, then the prosecution will not have proved this part of the second element beyond reasonable doubt.

In this case [summarise evidence and arguments concerning the accused’s intention to possess the drug. The jury must be directed about the evidence that is capable of sustaining the inference of intention].

[If the accused denied this intention due to ignorance of the drug’s existence or nature, consider the following section]

In this case the defence alleged that NOA did not know, or was not aware of the likelihood, that it was a drug of dependence that s/he possessed. [Insert relevant evidence and arguments].

It is important to remember that it is the prosecution who must prove, beyond reasonable doubt, that the accused had the relevant intention. So if you are not satisfied that accused knew or believed or was aware of the likelihood that it was a drug of dependence that s/he possessed, and there is no other basis from which you can infer that the accused intended to possess a drug of dependence, then this second element will not be met.

Joint Possession

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

It is possible for more than one person to possess an item. This means that the prosecution does not have to prove that no one else shared custody or control of the substance in question here. They only need to prove that, regardless of any involvement that others such as [identify relevant alternative possessor] may have had with that substance, the accused also had custody or control of it, and intended to possess it.

Authorisation and licensing

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

A person who is [authorised/licensed] to possess a drug of dependence will not be guilty of possession. 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]. [3]

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 also proven all of the elements of the offence, 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 NOA possessed that drug; that is, s/he had custody or control of that drug, and intended to possess it.

If you find that either of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of possession of a drug of dependence.

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

However, even if you decide that these elements have been proven, NOA will not be guilty if the defence has proven, on the balance of probabilities, that s/he was [authorised/licensed] by law to possess a drug of dependence.

 

Notes

[1] If it is alleged that the accused admitted having such an intention, this part of the charge will need to be modified accordingly.

[2] Such cases of "wilful blindness" will be rare, and judges should be cautious before charging the jury about this possibility: R v Garlick (No.2) (2007) 15 VR 388; [2007] VSCA 23.

[3] 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: 3 December 2012

See Also

7.6.3 - Possession of a Drug of Dependence

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)

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