In NSW the possession use and supply of Prohibited Drugs is
controlled by the Drug Misuse and Trafficking Act (NSW).
This Act gives the Police wide powers of stop, search and
detain as well as providing severe sanctions for any person
who is convicted of an offence under the Act.
WHAT DRUGS ARE AFFECTED BY THE ACT?
For a drug to come under the scope of the Act it must be
referred to in Schedule 1 of the Act. It is important to note
here that prescription drugs are regulated by the Poisons
Act.
Any offence relating to prescription drugs or the issue of
prescriptions would be dealt with under that Act. If a
particular drug is not referred to in schedule 1 of the Act
then the Drug Misuse and Trafficking Act will not apply.
The Drug Misuse and Trafficking Act also creates offences
for the Cultivation, Possession or Supply of a Prohibited
Plant. The Act then goes further to include a person who
"Takes Part In" the Cultivation or Supply of the Prohibited
Plant.
Prohibited Plants means:
- Cannabis Plants;
- A plant of the genus Erythroxylon;
- A plant the species Papaver Somniferum or Papaver
Orientale.
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OTHER OFFENCES
The Act also creates offences for Manufacturing and taking
part in the manufacture prohibited drugs. Other offences under
the Act include Conspiring to Supply, Manufacture or Cultivate
or who Aides and Abets and such offences.
The seriousness of the offence will be reflected by the
amount of the drug involved or the number of plants involved
in the offence.
The Act also creates offences for the possession of
utensils, other than syringes, and for the self administration
of a prohibited drug.
The Act creates both Summary and Indictable Offences and
has maximum penalties of up to Imprisonment for Life and
maximum fines of up to $550,000.00.
Convictions for major offences can also lead to Forfeiture
action by NSW Crime Commission who can forfeit assets of a
person engaged in serious offences under the Act.
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TAKE PART IN
A person takes part in an offence of cultivation, supply or
manufacture of a prohibited drug if the person:
- Participated in any step or causes any step to be taken
in the cultivation, supply or manufacture;
- Provides or arranges finance for any step in the
process; and
- Provides premises in which any step in the process is
taken or allows any step in the process to occur on premises
which the person owns, leases or occupies.
A person guilty of taking part in an offence is liable to
the same penalty as the person who is the principal
offender.
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SUMMARY OFFENCES
The Drug Misuse and Trafficking Act (The Act) creates a
number of summary offences. Summary matters are dealt with
summarily before a magistrate in the Local Court.
The maximum penalty that a magistrate can impose is
Imprisonment for 2 years and a fine of $2,200.00 for the
summary offences under Part 2 of The Act. The court could if
is so desired look at alternatives to a custodial sentence
such as bonds, community service orders etc.
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Possess Prohibited Drug
The mere possession of a prohibited drug is an offence in
NSW. For an offence to be proved the Crown would need to prove
that the accused had the substance was a drug and that the
drug was in the possession of the accused.
As to whether the substance is a drug or not will be
resolved by the Crown obtained a certificate from the
Analytical Laboratories who will analyse the substance and
determine what the substance is.
They then prepare a certificate that is admitted into
evidence as proof of what the substance is. As noted earlier,
to be a Prohibited Drug the substance must be a substance
referred to in Schedule one of the Act.
Possession has two elements. A physical and a mental
element. To have physical possession the person must have de
facto possession or exclusive physical control of the
substance.
The Crown need to prove that the accused either had:
- Sole Possession; or
- Joint Possession.
The Crown cannot allege both Sole and Joint Possession in
the Accused. So if the Crown was to allege sole possession,
the Crown must negative that there was joint possession of the
drug among a number of people.
For the mental element, the Crown must prove that the
accused had knowledge of the substance in his possession. This
would include showing that there was knowledge of the
substance and that it was a drug If the Crown fail in proving
the knowledge requirement then the charge must fail.
If the amount of drug on the person is so small that it is
not useable in the way contemplated then the Crown case for
possession would fail.
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Possession of Equipment to Administer a Prohibited
Drug
A person who has any item of equipment in their possession
for the use in administration of a prohibited drug is guilty
of an offence. For this charge to be successful the Crown must
prove that there is to be a future use of the impliment for
the administration of drugs. Past use will not satisfy the
criteria.
Normally this is proved by the equipment being located with
the drug to be administered or when the accused is found
administering the drug or if an admission is made to the
police.
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Sale, Supply and display of Water-pipes
This offence prohibits the sale or supply of a water pipe
(bong) unless the person satisfies the court that the sale or
supply was not for a commercial purpose.
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Administration of a Prohibited Drug
This offence prohibits the self administration or attempted
self administration of a prohibited drug by a person. There is
a defence if the administration of the prohibited drug which
had been lawfully prescribed for the person.
The Act also creates a summary offence for a person to
administer a prohibited drug to another person. Further, it is
also an offence by the person who allows another person to
administer a prohibited drug to them.
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Prescription
The Act also creates offences or Forging or presenting a
prescription to obtain a prohibited drug as well as obtaining
such a prescription by False Representations.
The Act also covers situations where a person attempts to
obtain a prohibited drug from a medical practitioner if the
person does not notify the medical practitioner of other
prohibited drugs or prescriptions the person has obtained from
other medical practitioners.
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Aiding and Abetting
The Act also creates offences for the aiding and abetting
any person to commit any of the above offences as well as
aiding and abetting offences outside of the State of New South
Wales.
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INDICTABLE OFFENCES
Indictable offences are offences which are dealt with to
finality in either the District or Supreme Courts before a
jury. Only rarely would an indictable matter be tried in the
Supreme Court.
However, many indictable offences can now be dealt with
summarily in the Local Court before a magistrate. Different
rules will apply depending upon the weight or amount of the
drug or number of plants in question.
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Offences with respect to Prohibited Plants
The Act creates offences for:
- Cultivating, or Knowing Take Part In Cultivating a
Prohibited Plant;
- Supplying or knowingly takes part in the supply of a
prohibited plant;
- Possessing a prohibited plant.
With regard to these offences it is open to the jury to
find on the balance of probabilities that the number of plants
was less than the amount charged and to find the accused
guilty of the offence for the lesser number of plants.
There are defences created in the Act for persons acting in
accordance with directions under the Department of Health or
in accordance with a direction given by the Commissioner of
Police.
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Manufacture and Production of Prohibited Drugs
A person who manufactures or knowingly takes part in the
manufacture of a prohibited drug is guilty of an offence. Such
offences can relate to the production of amphetamines, heroin
etc.
Again, the mode of trial and the penalties that can be
imposed with depend upon the amount of drug manufactured. This
offence also allows for a finding that the jury can find that
a lesser amount of drug was produces and find the accused
guilty accordingly. The maximum penalty is Imprisonment for
Life and a fine of $550,000.00
.
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Supply of Prohibited Drug
Supplying a prohibited drug is one of the most serious
offences under the Act. The courts look upon suppliers
generally as people profiting off the misery of others. The
superior courts have on numerous occasions indicated that the
courts must first consider a gaol sentence for a person
convicted of such an offence.
Supply is defined as including sell, distribute, agreeing
to supply, offering to supply, keeping or having in possession
for supply, sending or forwarding, delivering or receiving for
supply or authorising direction causing suffering permitting
or attempting any of those acts. In the Act the charge also
includes any person to takes part in the supply of a
prohibited drug.
Again the penalty and mode of trial will be determined by
the weight of the drug. The jury can also in this case find
the accused guilty of a lesser amount of drug supplied and the
accused would be dealt with accordingly.
The maximum penalty for supply is Life Imprisonment and a
fine of $550,000.00.
The Act was amened in 1998 to make provision for a new
offence of a person who supplies a prohibited drug on an
on-going basis. In this case the Crown would need to prove
that there was more than three occasions the accused supplied
a prohibited drug, other than cannabis, within 30 days for a
financial reward. A person convicted of this offence is liable
to a fine of $385,000 and 20 years imprisonment.
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Conspiring
Conspiring is where two or more people make an agreement to
commit a criminal act. The Act provides a specific offence of
any person who conspires to commit one of the above offences.
Further, the Act also provides a penalty for any person who
Aids Abets the commission of any of the above offences. A
person so convicted is liable to the same penalty to the
principal offender.
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CHARGING PROCESS AND COURT PROCEDURE
Charging Process
If an offence is committed against the act the Police may
commence proceedings. This can be done by the police by
charging, issuing a Court Attendance Notice (CAN) or Field
Court Attendance Notice (FCAN) and by the issue of a
summons.
To charge or issue a CAN the police officer will normally
arrest the suspect. The suspect will be taken to a police
station where they will be entered into custody. The officer
will normally want to conduct a record of interview or to take
a statement off the suspect.
Once the interview process is finished the suspect should
either be released or taken to the charge room to be charged
or to be issued with a CAN. If a person is charged then the
authorised officer will need to consider the issue of bail.
Bail can be granted unconditionally, subject to certain
conditions or refused.
If bail is refused then the accused is required to be taken
before the next available court to have the bail decision of
the suspect ( now accused) reviewed by the court. This is a
Local Court constituted by a magistrate or by an authorised
justice.
If the accused is given unconditional bail or a conditional
bail then the authorised officer will specify a date of the
bail form, Form 5, the date which the accused is to attend
court. With all matters the first court is the Local Court
whether the matter is summary or indictable.
If the accused is granted a FCAN then the officer will hand
to the accused, generally at the location where the accused
came under notice, a document informing the accused of what
the allegation is and also the date the accused is to attend
court and at what court.
If the accused is arrested and issued a CAN at the police
station a procedure similar to the charging process is carried
out. The only difference is that the accused is not required
to be given a bail undertaking. The CAN will notify the
accused of the allegation and the time and place the accused
is to attend court.
The last method of bring an accused to court is for the
officer to swear an information and issue a summons. A summons
has no effect until it is served on the accused. It also has
no bail conditions, however, a magistrate at court could
impose bail if the magistrate so desired.
Court Procedure
If the matter charged is a summary matter then the matter
will remain in the Local Court through to completion. This
will include situations where a plea of guilty is entered or
whether the matter is defended and a hearing is conducted.
The matter can only be referred to a higher court in these
circumstances only if an appeal is lodged against the decision
of the magistrate. If the appeal is that the magistrate
applied the wrong law or applied the law incorrectly, then the
appeal will lie to the Supreme Court. If the appeal is that
the accused is not guilty or that the penalty is too severe,
then the appeal will lie to the District Court.
After the Committal Proceedings, if the magistrate was
satisfied there is a case to answer, the matter will be
committed to the District Court. If the plea of Not Guilty is
continued in the District Court the a trial date will be
set.
When a trial is conducted it is normally conducted before a
jury of 12 people from the community. In the trial the judge
will instruct the jury as to the law that should be applied
and the jury acting on those instructions will determine if
the accused is guilty of the offence or not guilty.
Any appeal from a direction of decision given by the judge
can be subject to an appeal before the Court of Criminal
Appeal. This court is generally constituted by three appeal
judges in the N.S.W. Supreme Court.
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