In NSW, Drug offences are governed by the Drug Misuse and Trafficking Act 1985 (Hereafter referring to this legislation as the ‘DMTA 1985’). The offence of possession of a prohibited drug is contained in section 10 of the ‘DMTA 1985’ and in this article, we will be discussing the maximum penalty for this type of offence as well as the elements which the prosecution must prove beyond a reasonable doubt to find a person guilty of this offence.
First and foremost, in the ‘DMTA 1985’, there is a list ‘Restricted substances’ which include drugs that a person can obtain but only by way of a prescription (this includes prescription drugs such as as Xanax, antibiotics) etc.
As you already know, there also appears to be an extensive list of drugs, which are deemed to be illegal to possess. The offence of possessing a prohibited drug carries a maximum Penalty of 2 years imprisonment.
In relation to the court process, when a person is charged with the offence of ‘Possession of Prohibited Drug’ this offence begins in the Local Court and it is usually finalised and disposed of in the Local Court. It should be noted that if this type of offence is not finalised in the Local Court, it is usually because the defendant has other charge(s) which can only be dealt with by a higher court and this offence happens to be part of the charges on indictment.
Elements, which must be proven by the Prosecution:
The prosecution must prove the each and every one of the following three elements Beyond a Reasonable Doubt for there to be a finding of guilt in relation to this offence and these elements include the following:
<![if !supportLists]>i. <![endif]>That the person possessed a substance; and
<![if !supportLists]>ii. <![endif]>That the substance was a prohibited Drug; and
<![if !supportLists]>iii. <![endif]>That they knew they were in possession of that substance
If the prosecution fails to prove any of the above elements, then the defendant will then be found not guilty of this offence.
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