Previous Topic

Next Topic

Book Contents

Book Index

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

Click here to obtain a Word version of this document for adaptation.

 

When to Use this Checklist

This checklist can be used in possession cases in which:

  • The prosecution relied on the section 5 definition of possession; and
  • The prosecution alleged that the accused occupied the land or premises on which the drug was found; and
  • The defence submitted that the accused did not have custody or control of the drug, did not intend to possess the drug, or was authorised or licensed to possess the drug.

    Alternative Checklists

If the prosecution relied on the accused’s occupation of the relevant land or premises, but the defence did not make any of the submissions outlined above, use Checklist: Posssession of a Drug of Dependence (Section 5 - Occupation - Simple).

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

The Elements

Two elements the prosecution must prove beyond reasonable doubt:

  1. The substance in question was a drug of dependence; and
  2. The accused possessed that substance.

 

A Drug of Dependence

1. Was the substance in question a "drug of dependence"?

Consider – [Insert name of drug] is a "drug of dependence".

If Yes, then go to 2

If No, then the Accused is Not Guilty of
Possession of a Drug of Dependence

Possession of a Drug

2. Did the accused possess the substance in question?

2.1 Did the accused occupy the [land / premises] in question?

Consider – Was the accused in practical control of that property?

If Yes, then go to 2.2

If No, then the Accused is Not Guilty of
Possession of a Drug of Dependence

2.2 Was the substance in question found [on that land / in those premises]?

If Yes, then go to 3

If No, then the Accused is Not Guilty of
Possession of a Drug of Dependence

Defences

[Judges should delete whichever of these defences is not relevant in the circumstances of the case. If multiple defences are in issue, the numbering will need to be modified.]

Even if you are satisfied that the prosecution has proven the two elements outlined above, you must find the accused not guilty if the defence has proven, on the balance of probabilities, that the accused [did not have custody or control of the substance / did not intend to possess a drug of dependence / was authorised or licensed to possess the drug].

Lack of Custody or Control

3. Was it more likely than not that the accused did not have custody or control of the substance?

If Yes, then the Accused is Not Guilty of
Possession of a Drug of Dependence

If No, then the Accused is Guilty of Possession of a
Drug of Dependence (as long as you also answered
Yes to questions 1, 2.1 and 2.2)

No Intention to Possess

4. Was it more likely than not that the accused did not intend to possess a drug of dependence?

Consider – Can you infer from all of the evidence that the accused did not intend to have custody or control of a drug of dependence?

If Yes, then the Accused is Not Guilty of
Possession of a Drug of Dependence

If No, then the Accused is Guilty of
Possession of a Drug of Dependence (as long as you also answered
Yes to questions 1, 2.1 and 2.2)

Authority or License

5. Was it more likely than not that the accused was authorised or licensed to possess the drug?

If Yes, then the Accused is Not Guilty of
Possession of a Drug of Dependence

If No, then the Accused is Guilty of Possession of a
Drug of Dependence (as long as you also answered
Yes to questions 1, 2.1 and 2.2)

 

Last updated: 11 May 2010

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)

7.6.3.4 - 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)