(08) 9278 2575Deemed 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.
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
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.
