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

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When To Use This Charge

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 used, enjoyed or controlled the drug.

If the prosecution relied on the deeming provision in s5 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).

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 the 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 used, enjoyed or controlled by him or her, unless the person satisfies the court to the contrary.

The prosecution alleges here that the accused [used or enjoyed / controlled] the drug.

[If it is necessary to define the term "use", add the following shaded section.]

The phrase “used or enjoyed” is a legal phrase that, in the context of this case, simply means “used” You must determine whether the accused [describe the alleged basis for finding that the accused “used” the drug of dependence in question].

It is a question of fact for you whether the accused [used or enjoyed / controlled] the substance in question here. The evidence was [summarise evidence and arguments concerning use, enjoyment and control, addressing detail only if in issue.]

Defences

[This section addresses three possible ways the defence may contest the offence, even if the elements outlined above have been proven: 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 [used or enjoyed] 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.

[If the prosecution sought to prove that the accused “controlled” the drug, add the darker shaded section]

Clearly, the defence will not be able to do this if the prosecution has satisfied you beyond reasonable doubt that the accused had control of the drug in question. So you will only need to consider this defence if you are satisfied beyond reasonable doubt that the accused used or enjoyed that drug, but you are not satisfied beyond reasonable doubt that s/he had control of it.

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.[1]

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.

To establish this defence, the accused says [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 [used or enjoyed / controlled] 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.

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.

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.

This will require you to decide if you can draw a conclusion 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 conclusion that NOA did not have the requisite intention, such as “NOA did not know, and was not aware of the likelihood, that the drug was in the car” of “NOA did not know, and was not aware of the likelihood, that the substance was a drug of dependence”]. They argued that you can conclude 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 car”], and whether to conclude 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 a conclusion that the defence 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 conclusion that is reasonably open in the circumstances. You can conclude 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 [was using or enjoying/ had in his/her control] 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].[2]

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 [used or enjoyed by/ in the control of] the accused.

If you find that the prosecution has not proven 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] - If it is necessary in the circumstances of the case to direct the jury on non-manual or joint custody, see Charge: Section 5 Possession (Occupation).

[2] - 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

7.6.3.1 - 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)

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

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