MJ Law in NSW

[syk613]

Drug Offences in NSW

 

Drug Legislation

 

Drug Misuse and Trafficking Act:

 

-In NSW drug use is regulated by state and federal laws. Most drug charges are laid under the Drug Misuse and Trafficking Act 1985 (NSW).

-There are offences in the act for use, possession, supply and trafficking (amount of drug determines seriousness of offence), aiding and abetting, and possession of drug-using implements.

-The drugs covered by this legislation are listed in schedule 1to the ACT. They include most street drugs-mj, heroin, speed, ecstasy, LSD, cocaine, and many others.

 

Customs Act:

 

-The customs Act 1901 is a federal law that is meant to prevent the import/export of prohibited drugs.

-A schedule to the customs act lists the drugs covered, and these include the substances listed above.

-The Customs Act include dealing with imported drugs after they have been imported into the country.

 

Drug Offences

 

Possession:

 

-Possession of a prohibited drug is an offence under the Drug Misuse and Trafficking Act 1985.

-To prove possession, the prosecuction must show beyond a shadow of a doubt that the person knew that illegal drugs were in their custody and contol.

-If a person knows drugs are in their house, but somebody else has control of them (ie do not own or have a right to use them), they are not guilty of possession

-A person can only be convicted if they have knowledge and custody and control.

-Knowledge but no control: (R v Solway (1984) 11 A Crim R449)

A guest leaves mj in a bathroom after a party, a little while later the house is raided and the drugs found. A resident tthen told the police they knew it was there but intended to dump it , HE was found not guilty becausehe had laid no claim to the drugs and had exercised no control over them. Knowledge that the drugs were there was not enough.

 

Just the beginning there is much more to come.

Edited November 26, 2003 by syk613

[syk613]

Part : 2

Custody and Control:

 

-Custody refers to immediate physical possession, eg in pockets/hands, Control refers to the right to do something with the drug eg keep it, use it or share it.

-Police need to prove the person had control over the drugs found before they can charge them for possession. Eg. If a person owns the a car or house (or rents) that does not necessarily mean they own the things that are in it. A person can be found guilty even if custody and control was for a few seconds eg passing a joint.

- A person is NOT considered to be in possession of drugs if they are merely holding someone else’s drugs for safe keeping and are going to return them. I know it does not make a lot of sense but it is here in black and white in front of me)

 

Knowledge:

 

-The prosecution must prove, the person charged knew the substance in their custody and control was, or was likely to be, a drug.

-The legal test for the prosection is not what a reasonable person might or should think but they must prove actual knowledge, but knowledge can be inferred from the circumstances they were found in. Eg if a person is caught with mj or it is in a private stash it is inferred you knew what you were carrying or stashing, respectively.

 

Shared Houses:

 

-When mj is found in a communal area of a share house eg bathroom it can not be inferred any1 person has possession because the mj could belong to any1 with access to the room. If a statement is not made about who owns the mj ie ratting out someone else or jamming yourself up, then in all likelihood NO ONE WILL BE CONVICTED (moral: keep your mouth shuy except for the phrase, I’ll have my lawyer now, thank you sir. I can not stress this enough: KEEP YOU MOUTH SHUT. Ok that’s my 2cents anyway).

[syk613]

Part 3:

 

Who Has Possession?

 

A man lived in a share house with several other pp and mj is found in the lounge room, a communal area of the house, The mans conviction was overturned on appeal because there was not enough proof the drugs were in his exclusive physical control since there was so many ppl with equal access to the room.(R v Fillipetti (1984) 13 A Crim R 335).

 

The prosecution must rule out all other reasonable explanations. If there are a number of ppl with access to the room the drugs were found in then this is reasonable doubt about whether the drugs were possessed by the accused. They could be someone else’s.

If a number of ppl are charge with possession, in this situation, then the prosecution must prove that each person had possession of the drugs. This can be difficult, the courts can not presume that all the ppl must have shared possession-each indiidual charged is presumed innocent. Without admissions (yeah I knew the dope was in the drwa..), it may be difficult to prove any one of the accuses is guilty of possession.

 

Medical cannabis: This information has changed or is about to, as NSW engages in a med cannabis trial, so please seek further information in regards to the medicinal trial in NSW and the laws that accompany the med use of cannabis. Follow this link for some further info http://www.aph.gov.au/library/pubs/rn/2003...3-04/04rn13.pdf

 

http://www.aph.gov.au/library/pubs/rn/2003...3-04/04rn13.htm

 

Here is the information I have however.

 The use of mj for med purposes is no defence, but it may be taken into account when sentencing.

 In 2000 Aug it was recommended to the NSW govt that a small amount of mj should be made legal for certain conditions (and their carers, and there have been signs of legislative change.

Edited December 10, 2003 by syk613

[Guest Wilderbud]

Hash would be better.

[dirty]

good info man, keep it coming

[syk613]

Part 4:

 

Use

 

 Under section 12 of the DM&TA (drug misuse and trafficking act) it is an offence to use an illegal drug.

 Charges are usually laid after an admission is made to the police. To prove U used a drug, that has already been completely consumed, it is impossible to determine use without a drug test of the blood which can only be done after the arrest, so again, if asked did U smoke: just say no!

 

Equipment:

 

 It is an offence to have equipment if the intent is to consume drugs (DM&TA s.11)

 This use must be future use evidence of past use is not relevant or sufficient to prove the charge (Erickson v Pittard 1976 2 NSWLR 528) (needles R an exception but this is not an IV drug users site so I have left out this and other irrelevant parts)

 The prosecution must show that the equipment was illegally possessed. (Like the law for possession there must be knowledge and custody and control. Also it is an offence to sell/supply/display bongs, its intended use is irrelevant

Edited December 23, 2003 by syk613

[syk613]

Part 5

 

Supply

 

 Supply includes (DM&TA s.3) selling, giving away, agreeing to supply drugs and deemed supply (DS). DS (more below on this) refers to particular amount of a drug that is deemed to be for the purpose of supply. For MJ 300 gm (leaf or head) is a trafficable quantity, a traffickable quantity of a drug is an amount deemed in the law to be in a persons possession for the purpose of supply.

 The police can charge a person who admits they were going to sell a drug, even a small amount, if they deliver drugs, or if they offer to supply a drug (even if they can not or have no intention of fulfilling the offer).

 If a person offers a substance and says it is a drug when it is not they are still guilty of supply (s.40)

 Police can legally give a reasonable direction to a person in a public place who they believe on reasonable grounds is supplying, or soliciting supply of, or purchasing prohibited drugs. The direction must be “reasonable in the circumstances for the purpose of stopping” the supply or purchase. It is an offence to not comply without a reasonable excuse (summary offences act s.28F).

 

Deemed Supply:

 

 A person is presumed to be supplying a drug if they R simply in possession of a particular quantity of the drug, known as the traffickable quantity. Anybody found with a traffickable quantity is presumed to be a supplier unless it can be proved otherwise (DM&TA s.29

Possession but not supply:

 Drugs were found and they were deemed supply amounts, however because she proved she was holding them for someone then she was found guilty of possession not supply because she was not going to sell the drugs. (R v Carey (1990) NSWLR 292).

Edited December 24, 2003 by syk613