Possession of a drug of dependence is probably the most common offence. You possess a drug of dependence if you have physical control or custody of the drug. You can be charged with ‘possession’ if you know of the presence of a drug and you intend to possess it. However, in certain circumstances, even if you do not know of the presence a drug and you do not intend to possess it, you can still be charged with a criminal offence. For example, if:
- you are the occupier of a room in a motel where drugs are found
- you are the owner/driver of a car containing drugs
Being in possession of a substance entails a person being in physical control or custody of the drug to the exclusion of others not acting with the person. Possession can include having the drug on any land or premises occupied by the person, or used, enjoyed or controlled by the person in any place whatsoever.
Ways in which you might prove to the court that the drugs were not in fact in your possession are:
- you did not know of the existence of the drug;
- you knew of the existence of the drug but you did not intend to possess it;
- another person who actually possessed the drugs admits that they were in fact in ‘possession’;
- that you had no control over the drugs or the land or the premises on which drugs were found.
Possession laws are the domain of the states and territories and as such there are slight differences in the laws from state to state. If you want to know more about the drug laws in a particular state check out the State Drug Laws in this section.
*This fact sheet is for information only and should not be relied upon as legal advice.