What is the law behind the offence?
What the prosecution has to prove, what beyond reasonable doubt means, where a real argument exists and where it does not.
8.1The prosecution has to prove this. You do not.
Burden
You are not required to prove you are innocent. You are not required to explain anything. The prosecution has to prove every element of the charge, and it has to prove each one beyond reasonable doubt. If it fails on any one element, you are not guilty, whatever the others show. This is not a technicality. It is the structure of the whole system and it is the reason a not guilty plea is sometimes the right call even for a person who knows perfectly well what was in their pocket.
Beyond reasonable doubt does not mean beyond any doubt. It means that after considering all the evidence, the Judge is left without a doubt that a reasonable person would hold. Fanciful possibilities do not count. A real gap in the evidence does. The question in every possession hearing is whether the prosecution's evidence closes every gap, and the three elements below are where the gaps are.
Legal basis: Woolmington v DPP [1935] AC 462 (burden of proof); Evidence Act 1995 (NSW) s 141 (criminal standard of proof). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
8.2Element one: it was a prohibited drug
Proof of the substance
The substance has to be one listed in Schedule 1 of the Drug Misuse and Trafficking Act. Police prove this in one of three ways. A certificate of analysis from the Forensic and Analytical Science Service, which is conclusive unless challenged. The officer's own evidence of what the substance looked and smelled like, which is enough for cannabis and is routinely accepted. Or your admission, at the scene or in an interview, that it was what police say it was.
The gap here is small but it exists. If the substance was never analysed, police rely on appearance and your admission. If you made no admission and the substance is not cannabis, the prosecution may have difficulty proving what it was. This is one of the things Lesson 5 said a lawyer might raise in representations. It rarely arises in practice because most people say "yes that's mine, it's coke" at the scene, and once that is on the body-worn camera, the element is proved.
Quantity also matters at the margin. A trace, residue in a bag or on a pipe, may be too small to constitute possession of a drug in the legal sense. Whether it does depends on whether the quantity is capable of being identified as the drug and used, and the cases on this are technical. If your matter involves residue only, it is a matter for advice.
Legal basis: Drug Misuse and Trafficking Act 1985 (NSW) Schedule 1; s 43 (certificate evidence); Williams v The Queen (1978) 140 CLR 591 (minute quantities). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
8.3Element two: you possessed it, and the defences that turn on it
Possession
Possession is where nearly every genuine argument on this charge lives. In law it has two parts. First, physical custody or control: the drug was on you, in something you were carrying, or in a place you controlled. Second, knowledge: you knew the drug was there, and you knew it was a drug or were aware it was likely to be. Both parts must be proved, and knowledge is the part police cannot see.
Where the drug was in your pocket, your wallet or your hand, possession is straightforward and the argument is not worth making. Where the drug was somewhere else, the questions begin.
Shared spaces. A drug found in the glovebox of a car with three people in it, in the kitchen drawer of a share house, or in a bag on the floor between two people at a festival. The prosecution has to prove that you, and not somebody else, had control of it and knew it was there. If the space was genuinely shared and nobody claimed the drug, the prosecution's case may rest on nothing more than proximity, and proximity is not possession. This is the argument that most often succeeds.
Someone else's bag or jacket. If you were carrying it for a friend, or borrowed it, the question is whether you knew what was inside. If the facts sheet says you told police "I didn't know that was in there", that sentence is the beginning of a defence, and you should read Lesson 11 carefully before you plead.
Premises you occupy. A drug found in your bedroom, in a house you rent alone, is very difficult to argue about. A drug found in the common area of a house you share is a different matter.
The thing to understand is that these arguments are about the evidence, not about fairness. "It wasn't mine" is a defence only if the prosecution cannot prove it was. If you admitted it at the scene, the argument has usually already been lost.
Legal basis: He Kaw Teh v The Queen (1985) 157 CLR 523 (knowledge); Filippetti (1978) 13 A Crim R 335 (exclusive possession in shared premises); Drug Misuse and Trafficking Act 1985 (NSW) s 7 (definition of possession). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
8.4Element three: no lawful authority
Rarely in issue
The prosecution must show you were not authorised to possess the drug. For prescription medication in someone else's name this can matter. For cannabis, MDMA, cocaine and methylamphetamine it never does. If you hold a prescription for the substance on your CAN, that changes everything, and it is a matter for representations under Lesson 5 rather than a plea.
8.5The defences, listed
Defences
Drawing the three elements together, these are the defences that can arise on a possession charge. Each one is a reason the prosecution cannot prove an element, or a reason the law excuses the possession. Each one depends entirely on the evidence in your matter, and none of them is something you can assess reliably from a description in a course.
| Defence | What it means | Where it usually arises |
|---|---|---|
| The substance was not a prohibited drug | Police cannot prove the substance was one listed in Schedule 1 | No analysis, no admission, substance not visually obvious |
| You were not in possession or control | Physical custody or control not proved; someone else had it | Shared cars, share houses, someone else's bag |
| You did not know | Knowledge of the drug's presence or nature not proved | Borrowed clothing or bags; items left in your space by others |
| A section 10(2) exception applies | Lawful authority: prescription, licence, carer administering to a patient | Prescription medication in another name; rare for street drugs |
| The search was unlawful | Evidence excluded because police lacked a lawful basis to search | No dog indication, no stated reason, vague facts sheet |
| Minute quantity | Residue too small to amount to possession of a drug in law | Traces on a pipe or in an empty bag |
What this table is and is not
It is a map of where arguments live. It is not a diagnosis. Whether any of these is available to you depends on what is in the brief of evidence, on what you said to police, and on case law that this course summarises rather than states. If you think one applies, the next step is Lesson 11 and the consultation, not a not guilty plea entered on the strength of a table.
8.6Arguments that are not defences
Where no argument exists
Self-represented people often arrive at a hearing with an argument that belongs at sentence, not at trial. None of the following is a defence to possession, and running a hearing on any of them means losing the hearing and losing the discount for an early plea.
That the quantity was small. That it was for personal use. That you did not know it was illegal. That everyone at the festival had some. That police were rude to you. That you have never been in trouble before. That you have a drug problem. Every one of these is a matter the Judge will weigh at sentence, and Module 3 shows you how to present each of them. None of them goes to the elements.
8.7When how the evidence was found matters
Unlawful searches
Police can search you without a warrant if they have a reasonable suspicion that you have a prohibited drug on you. A reasonable suspicion needs something behind it: a drug dog indication, something they saw, something you said, a known location, the way you behaved. A search without a proper basis is unlawful, and evidence found in an unlawful search can be excluded from your hearing. If it is excluded, the prosecution usually has no case.
This is a real defence and it succeeds in the right circumstances. It is also the hardest thing on this page for a self-represented person to run, because it requires cross-examining the officer about their state of mind, knowing the case law on what counts as reasonable suspicion, and making a legal argument about why the evidence should be excluded. A drug dog sitting next to you at a station is generally accepted as a basis for a search. A search because you "looked nervous" is generally not.
Signs the search may be an issue
You were searched without a dog indication and without having said or done anything. Police could not tell you why you were being searched. You were searched at a location with no obvious drug connection. The facts sheet is vague about the reason for the search. If any of these fit, do not plead guilty until you have had advice.
Legal basis: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 148 to 150; Evidence Act 1995 (NSW) s 138 (exclusion of improperly obtained evidence); R v Rondo (2001) 126 A Crim R 562 (reasonable suspicion). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
8.8What to take from this lesson
Summary
If the drug was on your person and you admitted it, the elements are proved and your work is at sentence. If the drug was in a shared space, in something that was not yours, or was found in a search you cannot see the reason for, an argument exists and Lesson 11 is where you decide what to do with it.
Write one sentence for each element: how would the prosecution prove it in your case? If any sentence is hard to write, mark it. That mark is the whole of your not-guilty case, and you will need it in Lesson 11.
If an argument exists
A shared-space possession argument, a knowledge argument, or an unlawful search argument is a defended hearing with cross-examination of police and a legal submission at the end. Some self-represented people win these. More lose them and lose the plea discount as well. If you have marked an element as hard to prove, a consultation with the lawyers who built Standard before you plead is the single highest-value hour in your matter.
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