Charges commonly prosecuted under the Misuse of Drugs Act:
Drug offences are one of the most commonly prosecuted matters in Western Australia and constitute a large percentage of cases in the Magistrates, District and Supreme courts. Andrew Williams has years of experience in defending clients against all types of drug charges under commonwealth and state law. This has involved the representation of clients charged with offences that include drug possession, possession with intent to sell or supply, trafficking, sale and distribution, manufacturing, cultivation, cultivation with intent to sell or supply, and conspiring with another to sell or supply. Andrew Williams has represented clients on countless occasions in respect of matters involving but not limited to methylamphetamine, cocaine cannabis, synthetic cannabis, heroin, ecstasy (MDMA), LSD, and Oxycodone.
Possession of a Prohibited Drug with intent to sell or supply
One of the most common drug related charges that comes before our courts in Western Australia is the charge of possession of a prohibited drug with intent to sell or supply. This offence is the subject of many trials that come before a judge and empanelled jury in the District Court. The following paragraphs aim to provide some insight into the content and meaning of the charge, what the prosecution are required to prove in a trial and where your matter is likely to be heard and determined.
What elements are the prosecution required to prove for a charge of possession of a prohibited drug with intent to sell or supply?
The elements that the prosecution must prove are as follows:
- The substance the subject of the charge is a prohibited drug;
- The accused had in her or his possession the prohibited drug;
- The accused had the intention to sell or supply to another all or part of the prohibited drug that was in his possession.
What constitutes being in possession of a prohibited drug?
You can possess a prohibited drug by having either actual physical custody of the drug or by having control or dominion over the drug. You can therefore be found to possess a prohibited drug by physically holding it, that is, actually having it on your person. But you can also be found to possess a prohibited drug without physically holding it provided you had control or dominion over the drug.
For possession of a prohibited drug to be established there must be proof of an intention to possess a drug within the ordinary meaning of that word. You cannot be found to possess a prohibited drug if you do not intend to possess a drug.
Is it necessary for the prosecution to prove that you knew that what was in your possession was a prohibited drug?
It is not actually necessary for the prosecution to prove that you intended to possess a drug which is illegal to possess. In order for an offence of possession of a prohibited drug to be made out the prosecution need only prove that you intended to possess a drug within the ordinary meaning of that word.
Take for example a situation where the charge relates to the drug methylamphetamine. The prosecution need not prove that you knew that the drug that you were in possession of was in fact methylamphetamine. Nor need the prosecution prove that you knew the precise quantity of the methylamphetamine that you were in possession of. The prosecution need only prove that you possessed a drug within the ordinary meaning of that word. So, for example, if you possessed a drug which you believed to be cocaine but which in fact turned out to be methylamphetamine, you would still be found guilty of being in possession of the prohibited drug methylamphetamine.
Can I be jointly charged with another for possession of a prohibited drug?
Yes. The prosecution often charge more than one person with the same offence of possession of a prohibited drug. Possession does not have to be exclusive to one person. Two or more persons can jointly possess the one quantity of a drug at the same time, although the nature of their possession may be different.
For example, one person may possess a drug by reason of having intentional custody of it while another may be in possession of that same quantity of drug by having intentional control or dominion over the drug even though the drug is in the physical custody of the first person. Two or more people can also jointly possess the one quantity of a drug at the same time by reason of them both having intentional control or dominion over the drug.
What does having an “Intent to sell or supply” mean?
The word “sell” carries its ordinary meaning of exchanging the prohibited drug for money. The word supply includes to give, deliver, dispense, distribute, forward, make available, provide, return, or send.
If the prosecution prove that you possessed the prohibited drug and the weight of the drug reaches a particular amount specified by the Misuse of Drugs Act then you are deemed to have in your possession a prohibited drug with intent to sell or supply it to another. In this limited circumstance the law places an onus on you to prove on the balance of probabilities that you did not intend to sell or supply all or part of the prohibited drug to another.
Sometimes the particular circumstances of the case may create a difficult task for you to prove that there was not an intention to sell or supply the prohibited drug. These circumstances may include situations where there are multiple clip seal bags present, scales are located, the existence of large sums of cash, and lists of monies owing by people.
Is there anything else I need to know?
If you are charged with the offence of possession of a prohibited drug with intent to sell or supply there are a number of very important questions that need to be asked:
- What weight of the drug gives rise to a legal presumption of an intention to sell or supply?
- What court will hear and determine my matter?
- Will I be subject to an automatic trafficking declaration if I am convicted?
The following table sets out particular drugs and the threshold amounts under the Misuse of Drugs Act WA that provide an answer to the above questions:
|Prohibited Drug||Amount giving rise to an intention to sell / supply||Amount determining court of jurisdiction||Amount giving rise to a trafficking declaration|
|Methyl amphetamine||2 grams||4 grams or more is indictable and proceeds to the District Court||28 grams|
|Cocaine||2 grams||4 grams or more is indictable and proceeds to the District Court||28 grams|
|MDMA||2 grams||4 grams or more is indictable and proceeds to the District Court||28 grams|
|Cannabis||100 grams||500 grams or more is indictable and proceeds to the District Court||3 kilograms|
|Cannabis Plants||10 plants||20 plants or more is indictable proceeds to the District Court||20 plants|
We can help
Drug charges are serious matters and carry tough penalties upon conviction in our state. Andrew Williams is an experienced and passionate criminal lawyer who will fight to protect your interests. Have you recently been charged with a drug offence? If so, contact the Law Offices of Andrew Williams today. You can reach us on (08) 9278 2575.