Deemed Possession for Drug Charges, Can You Fight It?
It’s clear under the criminal law of Western Australia that you can be convicted of a drug offence in Western Australia without being caught “red-handed” with the drugs in your pocket. The legal doctrine of ‘deemed possession’ means that a person can be convicted of possession of a prohibited drug with intent to sell or supply even if they weren’t physically holding the drugs.
The following paragraphs outline commonly charged drug offences in Western Australia, their penalties, how the doctrine of deemed possession applies to these offences, as well as the arguments that may arise by the defence to counter the doctrine.
Drug Offences in Western Australia
Drug offences in Western Australia are outlined under the Misuse of Drugs Act 1981 (WA) and carry serious criminal penalties, including imprisonment. These offences apply to ‘prohibited drugs’, including cannabis, heroin, cocaine, LSD, MDMA, methamphetamine and other commonly used illicit substances as well as ‘prohibited plants’ such as the cannabis plant or opium poppy, and “magic mushrooms”.
Under section 6(1) of the Act, it is a crime to possess, manufacture, sell or supply a ‘prohibited drug’ with intent to sell or supply. This offence carries a maximum penalty of life imprisonment if the prohibited drug is a trafficable quantity of methamphetamine, and a maximum penalty of a fine of $100,000 or 25-years imprisonment, or both, for other prohibited drugs, depending on the circumstances and quantities involved. Less serious penalties may apply to cannabis offences, whilst more serious penalties also apply if the offence involves selling or supplying to a child.
A simple offence is also outlined under section 6(2) if a person is in possession of a prohibited drug without an intention to sell or supply. This offence carries a maximum penalty of a fine of $2,000 or 2-years imprisonment, or both.
Under section 7(1) of the Act, it is an offence to possess or cultivate a prohibited plant with the intent to sell or supply it or a drug derived from it, or to sell or supply such a plant. This offence carries a maximum penalty of a fine of $100,000, or 25-years imprisonment or both.
A simple offence is also outlined under section 7(2) if a person is in possession of a prohibited plant without an intention to sell or supply it or a drug derived from it, or to sell or supply such a plant. This offence carries a maximum penalty of a fine of $2,000 or 2-years imprisonment, or both.
Importantly, under section 11 of the Act, a presumption that a person intends to sell or supply a prohibited drug or plant may apply if a person possesses a certain quantity of an illicit drug or plant. For example, a presumption of intent to sell or supply will apply if a person is found in possession of:
- 20 cannabis plants.
- 100 grams or more of cannabis leaf.
- 20 grams or more of cannabis resin.
- 2 grams or more of cocaine, MDMA, heroin or methamphetamine.
- 002 grams or more of LSD.
This presumption is rebuttable, meaning the accused can present evidence to prove that all of the drugs found in the accused's possession were for personal use only and no portion of the drugs were intended for sale or supply, despite the quantity being above the statutory threshold.
Deemed Drug Possession Under WA Criminal Law
Under Western Australian law, a person can be found guilty of drug possession if they knowingly have physical custody or dominion and control of a prohibited drug.
Possession of a drug can result from ‘actual possession’, where the drugs are physically on the person (for example, in their pocket, clothing or wallet) or ‘deemed possession’ where the drugs are not physically on the person, but they had knowledge of the drugs and held dominion and control of the drugs (for example, in their home, locker or shared property).
What constitutes sufficient ‘control’ of a premises or property is case-dependent but applies broadly encompassing circumstances such as being an occupier on the land in which drug activity occurs, being an owner or tenant of a house where drugs are found or being the owner or driver of a car containing drugs.
It’s important to note that possession of a prohibited drug or plant requires the prosecution to prove some knowledge or awareness of the existence of the drug in their possession, although the prosecution does not have to prove that that the accused knew the specific prohibited drug possessed.
Can You Fight a Deemed Drug Possession Charge?
Possible defence arguments against a deemed drug possession charge might include:
- That the prosecution cannot prove that the defendant had the requisite knowledge that the prohibited drugs were present on their premises or property. It may be, for example, that another person has stored or left drugs at the accused’s house without the accused’s knowledge.
- That the prosecution cannot prove that the accused held control over the premises or property in which the prohibited drugs were found. For example, there may be evidence showing that the accused was merely visiting the property where the drugs were found, had no knowledge of the drugs, and had no ongoing access to the property.
- That the drugs belonged to somebody else and the accused held no dominion or control over the drugs. For example, there may be evidence that another person had brought the drugs into the vehicle for their own personal use.
Frequently Asked Questions
"Deemed possession” of prohibited drugs is derived from circumstantial evidence that an accused person had possession of the drugs. So even if you were not caught "red-handed" with drugs in your “physical” possession, the evidence focuses on matters such as where the drugs were located and your relationship to that place.
The prosecution relies on circumstantial evidence, such as drugs being found in:
- A shared apartment or premises.
- A vehicle you own or were driving.
- Any location over which you had a right of access (e.g., you possessed the keys).
To secure a conviction for possession of prohibited drugs the prosecution are required to prove that you had knowledge or awareness of the drug’s existence, that you had an intention to possess the drugs, and that you held dominion and control over the drugs.
Defending a possession of drugs charge may focus on challenging the strength of the circumstantial evidence and undermining the prosecution's allegation of the accused’s knowledge and control over the drugs.
Yes. This is the essence of "deemed possession". The law does not require "actual physical possession" (drugs in your physical custody, such as in your pocket). Instead, police and prosecutors can lay a charge based on circumstantial evidence that you had knowledge and dominion and control over the prohibited substance or the location where it was found.
The defence's immediate focus in these cases is to consider the strength of the circumstantial evidence of the link between you and the drugs.
Since knowledge is a state of mind, the police must rely entirely on circumstantial evidence to ask the court to draw a reasonable inference that you were aware of the drugs' existence.
The prosecution attempts to prove your knowledge through evidence like:
- Physical Proximity: Arguing the drugs were found in plain view, mixed in with your personal belongings (wallet, sock drawer), or located directly next to drug paraphernalia.
- Your Actions: Using any statements you made to police, telephone intercept recordings, attempts to flee or conceal the drugs, or suspicious behaviour during the search.
- Digital Evidence: Seizing mobile phones and other devices and analysing text messages or financial records.
Importantly the prosecution does not have to prove you knew the specific type of drug, only that you had knowledge or awareness of the illicit drug.
A defence strategy might focus on negating this “knowledge” element by showing the court there is a reasonable alternative explanation for the drugs' presence, such as another person having stored or left the drugs without your awareness.
In a “deemed possession” case, dominion and control is a legal element and fundamental requirement of the concept of possession. Dominion and control mean you had the power or authority to influence or deal with the prohibited substance. Dominion and control may not necessarily be exclusive to one person.
The defence may argue that the mere presence of drugs in a place you occupy does not automatically establish your dominion or control over the drugs.
Yes, it is possible to be charged in these circumstances. Because the drugs were discovered in a location under your legal authority (your house, apartment, or vehicle), the police may rely on the principle of deemed possession to lay the charge against you, the occupier.
However, the prosecution must prove that you were aware or consented to the drugs being left at your premises by a third party.
In order to prove “deemed possession”, the prosecution must prove your knowledge of the existence of the drug and that you held dominion or control over the drug. If you share a house with other people and the drugs are located in a room of the home not occupied by you, an allegation that you held the requisite knowledge, dominion and control over the drug would not hold up with as much strength as it would if you shared the room with another. That is because in circumstances where you don’t occupy the room where the drugs were located, a reasonable doubt is raised as to your knowledge, dominion and control of the drug.
Similarly, if you borrow someone’s vehicle and drugs are located by the police within that vehicle, the prosecution are required to prove that you held the requisite knowledge of the existence of the drug, that you intended to possess the drug, and that you held dominion or control over the drug.
A deemed possession charge is defendable, but whether you are successful will likely depend upon the circumstances of the case and whether there are circumstances that cast a doubt on the prosecution’s allegation that you were in possession of the drugs.
For example, in circumstances where the location of the drugs is shared or under the equal control of others, this may undermine the prosecution's case that you held the requisite knowledge of the existence of the drugs and that you had the requisite authority over the drugs.
The defence might also, in these cases, investigate the police procedure. If the drugs were obtained through an unlawful search or a breach of your legal rights, that evidence may be excluded from the trial, which may, in turn, lead to a weakening of the prosecution's case and, consequently, the dismissal of the entire charge.
Penalties vary significantly based on the type and quantity of the drug, and whether the charge is simple possession or possession with intent to sell or supply.
- Maximum Penalty for Simple Possession: For small quantities meant only for personal use, the maximum penalty in the Magistrates Court is a $2,000 fine and/or two years imprisonment.
- Maximum Penalty for Intent to Sell/Supply: This is a crime with far more serious consequences, carrying a maximum penalty of a $100,000 fine and/or 25 years imprisonment.
The court will also consider whether you are a first-time offender and your demonstrated commitment to rehabilitation.
Most convictions for a drug offence involving an intent to sell or supply will result in a criminal record. There is scope for a spent conviction being made in relation to a simple possession charge. However, if the court does not grant a spent conviction, you may be left with a permanent mark on your criminal history.
Yes. Contact an expert criminal lawyer immediately. Any statement you make may inadvertently be used to prove the legal elements of Knowledge and Dominion and Control against you.
Never speak to the police without advice or representation. Your right to silence is your strongest defence. Speaking with the police and answering questions may have the impact of compromising your case.
The Importance of Legal Representation
If you are facing drug charges made on the basis of deemed possession, it is crucial that you get legal advice and representation from an experienced criminal lawyer.
Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation to drug offences in Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.
Call Now: (08) 9278 2575
Author Andrew Williams
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
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