FULegal provides factual information and conservative advice that might assist an average doper, grower, or dealer in their possible encounters with the police and the judiciary.

FULegal provides edited extracts from the same sources consulted by working lawyers and prosecutors. Issues considered include: What is possession? What is trafficking? What is hindering police or resisting arrest? Can the police come onto my property? What does that charge mean? What should I do if I am arrested? What should I say? Who should I turn to for help? etc etc

FULegal does not pretend to be, is not, and cannot be a substitute for good legal advice: so hustle until you hear it. Do not be satisfied with cookie-cutter justice. YOU must take control and INFORM YOURSELF - it�s your arse on the line! This book is my small attempt to inform the people who need to know. (Bong on Australia!)

FULegal is the hackwork of a single reactionary old leftie who is studying Law. It has been compiled using Halisbury�s �Laws of Australia� [HLoA], ThompsonReuters LegalOnline �Laws of Australia� [LOLoA] plus lots of coffee & weed, and plenty of bitter experience.

REMEMBER: The information contained within this manual is woefully incomplete, can only be used as a guide, and may even be wrong! DO NOT DEPEND ON THIS MANUAL FOR LEGAL ADVICE.

PART ONE - Surviving the Police

IF YOU CAN HELP IT - DON�T TALK TO THE POLICE!

Everyone runs into the coppers. Some of the worst bleary eyed mornings can be full of coppers asking all sorts of difficult questions. So what do you say? What do you do? How prepared are you for that inevitable confrontation?

Most Important: �Don�t talk to the nice Police Officer.�

The Australian Legal System manufactures grief not justice. It chews up and spits out entirely innocent smartarses like you every day. And Mr Policeman does not want to be your friend - he wants to bend you over and ream you up the backside in any number of astonishingly legal ways. So do not talk to the coppers - it will fuck up your life.

Every day in every way avoid talking to the Police (if you must talk to them then do so only in the presence of legal counsel).�

The police may ask questions of anyone; however, with certain exceptions, persons asked questions are not required by law to answer.

��It seems to me quite clear that though every citizen has a moral duty, or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority.�

Lord Parker in Rice v Connolly [1966] 2 QB 414

Strategies:

When you can: politely avoid the police.
When you can�t avoid talking to a copper: pause and think, and then be non-committal.
You are not obliged to say anything: so don�t! If asked, provide only your name - age - DOB - and address. Give this information grudgingly and only upon request. Never surrender extra information. Otherwise answer: �don�t know sir�, �don�t know them sir�, �didn�t see sir�, �wasn�t [t]here sir�. �Yes sir�. �No sir�.
Yes - be polite - but stay silent. Talking to Mr Policeman is always bad for your legal health. If in doubt: shut up! If not in doubt: shut up! In fact: just shut the fuck up!
If you have to say something then politely use a non-committal stock phrase like: �I don�t know sir� or �Maybe sir�. �Pretend you are stupid. (Polite but incredibly stupid and non-communicative.)

IF A POLICEMAN ARRESTS YOU.

DO NOT PANIC!

An arrest consists of three elements.

An act of arrest (touching you on the shoulder or grabbing your arm etc.).
Informing the arrestee that they are under arrest.
Informing the arrestee why they are under arrest.

FIGHT THE POLICE INSIDE A COURTHOUSE � NEVER IN A POLICE STATION

After arrest � give up. You won�t win an argument with the cops � it will simply inflame the situation and give the Police more ammunition to use against you. So, after arrest: settle down. DON�T ABUSE, RESIST, or HINDER the POLICE.� They will be happy to lay as many additional charges as possible.

Like �the trifecta�: offensive language - resisting arrest - assaulting a police officer.

hindering police �is an offence involving making a police officer's execution of his or her duty more difficult. To hinder police involves something less than actually preventing police officers in the execution of their duty. Inciting another to hinder police is the same offence. (see Crimes Act 1900 (NSW) s 546C).

resisting arrest �is the act of preventing apprehension by a police officer or other person exercising a power of arrest. Resistance implies the use of force to oppose a course of action. Resistance may be active or passive but must involve some positive action.� If an arrest is unlawful then resistance will not constitute an offence unless the force used is more than is necessary for the purposes of justifiable resistance.

assault while resisting apprehension or arrest� �is a separate and distinct offence (Crimes Act 1900 (NSW) s 58. Also see ss 60AA, 60, 60A, 60B, �assault a constable or other peace officer, custom-house officer, prison officer, sheriff�s officer or bailiff or any person aiding such officer in the execution of his or her duty, police officer, law enforcement officer or any person acting in aid of such an officer�).

offensive language �the police are easily offended. To save the world from indecency they often feel obliged to charge someone with the offence of �uttering offensive, threatening, indecent, obscene, or abusive language� (see Summary Offences Act 1988 (NSW) s 4A(1)). Getting busted for swearing? Fr�fucksakes!

AFTER YOU ARE ARRESTED

DON�T ARGUE.� BE POLITE.� DO AS YOU ARE ASKED.

This is not the time or place to fight or debate the charges! (that can be done at a later time inside a courthouse) and if you don�t handle yourself carefully inside the Police Station you can make matters considerably worse.

Let them take your fingerprints!

Yes you might cite Carr v The Queen (1973) 127 CLR 662 where Menzies J rules that in the absence consent being provided the taking of the fingerprints may "involv[e] a trespass to the person". But let�s face it � is the argument worth it? (Unless you�re the Riverside Strangler???)

Improperly obtained fingerprint evidence may be ruled inadmissible and the police involved could, if �force or threat of force� is used, be possibly subject to proceedings for assault: but is it worth an assault? Do you think you will ever get to lay such a complaint? Will it help your cause? �LOLoA�

Police are entitled to request a suspect to participate in a line-up or an identification parade.

If you want to you can make it difficult. They cannot force you to participate and there is no obligation for a suspect to participate in an identification parade. Again: is it worth it? An ID parade will still occur. The Police can take witnesses to view a suspect informally without the suspect's consent.

However, an informal identification under abnormal circumstances might be more prejudicial than probative (and so may be excluded).� �LOLoA (para)

photographing suspects?

Taking photographs of an accused person does not constitute an assault and it is lawful for police to take photographs of suspects in custody subsequent to their providing their agreement.

The decision on whether or not to photograph must be made in the individual case, but the circumstances of a particular criminal investigation may be to legitimise an instruction that all persons arrested in respect of a particular offence be photographed.

In R v McPhail (1988) 36 A Crim R 390 , Lee CJ held that there was nothing "oppressive" in photographing a suspect positioned between two police, in circumstances where "there was nothing deceitful about it" and it accorded "with good common sense when many persons had been arrested and were being brought into the police station one after another".� �LOLoA

INTERVIEW STRATEGIES.

You may be arrested, charged, and released, without an interview � but more often than not you will be thrown into a holding cell prior to being interviewed by one or more police officers. You may be interviewed a number of times before charges are laid. Your ambition is to survive these encounters in good legal health.

General strategies are to:

DEMAND LEGAL REPRESENTATION
BE POLITE
SIGN NOTHING
SAY NOTHING (except repeat 1).

The refusal to allow a suspect access to his or her lawyer has led on occasions to the exclusion of confessions or admissions that were made in the absence of the lawyer.

Always remember:

MOST CONVICTIONS ARE SECURED ON THE BASIS OF A SELF-SIGNED STATEMENT OF INTERVIEW.

So in an interview situation:

Sign no Statement or Document given to you. When being booked in you may have to sign a docket accounting for your possessions: print your name. Prior to release you may have to sign a recognizance or bail form. These should be the only documents you will sign.
Do not consent to even reading a document during the course of an interview (pretend you have no glasses, or cannot read, or simply but politely decline the offer).
Do not believe what the Police tell you! They will lie.
Everything you say (and often a whole lot that you don�t say) may be used against you: so say nothing.� Advise the police you will �make no statement until after talking to independent legal counsel�. Repeat this phrase, and only this phrase, as often as is required.
If you obtain legal counsel; let them speak on your behalf.

PART TWO � issues & questions

Police powers to search � notes.

If the coppers want to search your property or person they have wide ranging powers to do so. Even if you wish to deny them entry they will still probably find a way to search your property. (We haven�t got a Bill of Rights remember. Police have powers and we have diddley-squat except wits and legal precedent.)

If there are several residents living on the property and you are dopers, growers, or dealers, then you should devise and practice a �search plan� where the following suggestions are discussed as a group and a clear �search strategy� agreed upon.

This may be the most important plan you ever devise!

When the Police search premises where a warrant has not been issued:

If the Police turn up on your doorstep and ask for permission to enter and �look around� say �no�. Do not provide consent for them to enter or search the premises. Be polite but do not debate the issue.

The Police may enter and search regardless. If you read further you will note the Police have wide ranging legal powers of entry that do allow them access to private premises under almost any conceivable circumstance. The most that you can do, on the day, is politely say that you don�t want them on the property and that they have no permission to be there.

Never resist the Police if they assert right of entry. If you interfere physically you may be charged with Hindering Police (see Crimes Act 1900 (NSW) s 546C).

If a warrant has been issued:

Ask to see the warrant and note down all of the details it contains.

While the Police undertake their search, if possible, each Policeman should be individually watched. Do not interfere with the movement or access of the officers but do not answer their questions or engage in conversation.
As they undertake a search the Police will try to divide and conquer, they will attempt to interview each resident individually and find the weakest link as they search. A single spokesman should be nominated at the outset to say �no comment�.
If any resident is asked to comment on �who owns what� - say nothing. Each resident should keep written note(s) of where the police search and what they ask. In response to any questioning say �no comment� and refer them back to the nominated spokesman.
If the Police find nothing they often become verbally aggressive. It is essential that every resident understand that they must remain non-communicative but polite, calm, and co-operative.
If any contraband item is found legal advice should be sought immediately.
The same passive resistance (say nothing, sign nothing, seek legal counsel) strategies outlined earlier should be practiced by all residents at all times in their interactions with the Police.

REMEMBER: Finding illegal substances is only one element in the legal equation. A possession charge requires more than just proof of proximity (being physically near). [See the section devoted to possession for more details.]

Police powers to search - index.

search warrant must be in possession of Police undertaking an authorised search and must be produced on demand. 5

Search Warrants Act.1985 (NSW) 5

executing a search warrant - police officer is conferred certain rights - is also subject to various obligations. 5

search of individual who has been arrested - evidence and safety searches. 6

search of individual who has been arrested - different forms of searches. 6

search of individual - reasonable force only. 6

search of individual need not be conducted by an investigating officer of similar gender. 6

search warrant authorising an ordinary search or a frisk search of a person not under arrest can be issued.. 6

search warrant applied for when believing that certain prostitution offences are being committed. 6

search warrant applied for when believing provisions of the Indecent Articles and Classified Publications Act 1975 (NSW) are being contravened. 7

search warrant not required for Police to stop and search vessels and vehicles reasonably suspected of carrying persons in possession of prohibited poisons and drugs. 7

search warrant not required for Senior Police to Act under the Police Offences Act 1901 (NSW), who have additional powers of search and seizure on premises, vehicles and vessels in some circumstances. 7

search warrant not required under the provisions of the Poisons Act 1966 (NSW) 7

search warrant not required under the Gaming and Betting Act 1912 (NSW) 7

search warrant not required to inspect motor traders premises. 7

search warrant not required when domestic violence suspected within a dwelling house. 8

search warrant not required to search vehicles and vessels in a broad range of circumstances. 8

search warrants can be issued by the State Drug Crime Commission Act 1985 (NSW). 8

Police powers to search - full text.

search warrant must be in possession of Police undertaking an authorised search and must be produced on demand. �

A "warrant" is a document issued by a person with authority to do so "authorising the doing of an act which would otherwise be illegal".

At common law a police officer executing a warrant was obliged to have the warrant in his or her possession at the time of search and to produce it if required.� ��LOLoA

Search Warrants Act.1985 (NSW)

Under the Search Warrants Act 1985 (NSW), the most important legislation providing for police powers of search and seizure in New South Wales, a police officer may apply to an authorised justice for a search warrant if the officer has reasonable grounds for believing that there is or, within 72 hours, will be in or on any premises a thing connected with a particular indictable offence, firearms offence or narcotics offence, or a thing stolen or otherwise unlawfully obtained.

Application for such warrants must be in writing in the form prescribed by the regulations and they must not be issued unless the information given by the applicant in connection with the application is verified on oath (or affirmation) or by affidavit.�� LOLoA

executing a search warrant - police officer is conferred certain rights - is also subject to various obligations. �

A police officer may seize a thing mentioned in the warrant, and also any other thing that he or she finds in the course of the search and which the officer has reasonable grounds for believing is "connected with any offence".

A police officer executing a search warrant may also search a person found in or on the premises whom the officer reasonably suspects of having a thing mentioned in the warrant.

In addition, a police officer who for the time being is lawfully in any premises may seize and detain any dangerous article which she or he finds in the premises and in respect of which the officer suspects on reasonable grounds that an indictable or other specified offence is being or has been committed.

One of the persons executing the search warrant must, prior to entry, announce that he or she is authorised by the warrant to enter the premises and give any person on the premises an opportunity to allow entry into or onto the premises.

This obligation does not have to be complied with if the person executing the warrant believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the "effective execution of the search warrant is not frustrated".

The major scenario contemplated is the danger of removal or destruction of items subject to the warrant. Such force as is reasonably necessary to execute the warrant may be employed. The warrant may be executed by day but not by night, unless the authorised justice specifically authorises its night time execution. Such authorisation may not be given unless the justice is satisfied that there are reasonable grounds for its being granted. Attempt is made by the legislation to balance the rights of the police to investigate effectively with the right of the suspect and those associated with her or him to undisturbed enjoyment of their premises. Reasonable grounds include: that the execution of the warrant is unlikely to be successful because, for example, it is issued to search for a thing which is likely to be on the premises only at night, or other relevant circumstances will only exist at night; there is likely to be less risk to the safety of any person if it is executed at night; or an occupier is likely to be on the premises only at night to allow entry without the use of force.

After an item is seized pursuant to the Search Warrants Act 1985 (NSW), and it has been produced in evidence, or when it is not required as evidence, it "shall be disposed of as a court or magistrate may direct".�� LOLoA

search of individual who has been arrested - evidence and safety searches

A search of a person may be justified to locate and seize items which may afford evidence of the commission of the offence with which an arrested person has been charged, or which might be used to cause harm to him or herself or others, or for the purpose of facilitating escape.

These rights to search are often described as "evidence and safety searches". It is the responsibility of a police officer with a prisoner lawfully in her or his charge to: [T]ake all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. �LOLoA

search of individual who has been arrested - different forms of searches. �

These may involve frisk searches, searches involving removal of outer garments, strip searches and internal body cavity searches. It may be that police on arrest have a right at common law to search, but not to strip or to wash.

� A "full search" envisages the removal and examination of clothing, including contact with the subject's body by the searching members: "[i]t should not involve physical examination of body cavities by touching a person's body".

It is also stipulated in the Procedures that a full search is appropriate "when there are reasonable grounds to believe that a suspect or prisoner has material which might not be found by an initial 'pat-down' search, eg small quantities of drugs".

It can only be conducted with the formal approval of an officer or (in circumstances of urgency in a police gaol) sub-officer.

�as the criterion for propriety in conducting searches of persons in custody is one of reasonableness in all the circumstances, it may be that a search of a person is only justified to the extent necessary in the particular case.� �LOLoA

search of individual - reasonable force only. �

If police exceed what is reasonable in all the circumstances, they are committing the criminal offence of assault, legitimise the employment of resistance and may be liable for a civil action of trespass to the person.� ��LOLoA

search of individual need not be conducted by an investigating officer of similar gender.

�the propriety of males being searched by females has not been addressed by either common law or statute but it is likely that the courts would regard it generally as being inappropriate for a male to be searched by a female, particularly if the search is more than a frisk search.�� LOLoA

search warrant authorising an ordinary search or a frisk search of a person not under arrest can be issued

Such a warrant may be issued if the issuing officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours, any evidential material.� The search warrant authorises the executing officer, or constable assisting, to search the person as specified in the warrant, as well as things found in her or his possession or a recently used conveyance, for things of the kind specified in the warrant. The officer executing the warrant may obtain such assistance as is necessary and reasonable in the circumstances. He or she may also use such force against persons and things as is necessary and reasonable in the circumstances. It is expressly provided that a warrant cannot authorise a strip search or a search of a person's body cavities. �A search warrant in relation to premises may also authorise the executing officer to conduct an ordinary search or a frisk search of a person at or near the premises if the officer suspects on reasonable grounds that the person has any evidential material or seizable items in their possession.�� LOLoA

search warrant applied for when believing that certain prostitution offences are being committed.

An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force to enter and search the premises, to search for and bring before a justice a person who is or appears to be contravening ss 16 and 17 of the Summary Offences Act 1988 (NSW), and to seize any article which may be direct evidence of such contravention.

The Search Warrants Act 1985 (NSW), Pt 3 applies to a search warrant issued for these purposes.� ��LOLoA

search warrant applied for when believing provisions of the Indecent Articles and Classified Publications Act 1975 (NSW) are being contravened. �

If an officer believes on reasonable grounds that "prohibited publications" or an article that may reasonably be suspected of being an indecent article is kept on any premises for the purposes of being published, or that such an article has been published in, on or from any premises, he or she may apply to an authorised justice for a search warrant. An authorised justice may issue a warrant authorising any police officer to enter and search such premises and [O]n the premises or elsewhere, to produce by means of any suitable apparatus (whether found in or on the premises or not) a sound or picture from any record found in or on the premises. �LOLoA

search warrant not required for Police to stop and search vessels and vehicles reasonably suspected of carrying persons in possession of prohibited poisons and drugs. �

A police officer of or above the rank of sergeant, or in charge of a police station or police vessel, may at any time, stop and detain any vessel or aircraft in which he or she reasonably suspects that there is any prescribed restricted substance in the possession or control of any person, and which contravenes the Poisons Act 1966 (NSW), or is any prohibited plant or drug in contravention of the Drug Misuse and Trafficking Act 1985 (NSW). The officer may then enter into any part of the vessel or aircraft and search and inspect it for those items.

A member of the police may also stop, search and detain any person in whose possession or under whose control she or he reasonably suspects there is such a substance in contravention of the Acts; or any vehicle in the possession or under the control of any such person.

Any cannabis plant, resin, oil or heroin or 6-monoacetylmorphine, or any other acetylated derivatives of morphine in the possession of any person may be seized by the police, and any plant or drug so seized shall be forfeited to the Crown. ��LOLoA

search warrant not required for Senior Police to Act under the Police Offences Act 1901 (NSW), who have additional powers of search and seizure on premises, vehicles and vessels in some circumstances �

Senior police are empowered by the Police Offences Act 1901 (NSW) to enter on any ship or vessel at any time to direct any constable on board and observe the conduct of those on board in loading and unloading. In addition, they may take all necessary measures for preventing accidents, preserving peace and good order on board and for preventing any felonies or misdemeanours.

Similarly, senior police are empowered to enter a vessel or ship at all times if they have just cause to suspect that a felony has been or is about to be committed, and are empowered to take all necessary measures to prevent or detect such felony. If information is given to a justice that there is reasonable cause for suspecting that anything stolen or unlawfully obtained is concealed or lodged in a dwelling house or other place, the justice may issue a warrant for search and seizure of items on such premises, with the use of force if necessary.

Items seized must be conveyed to a justice, guarded until offenders are taken before the justice, or disposed of in some place of safety. A constable may also stop, search and detain any vessel, boat or vehicle in or on which there is reason to suspect that anything stolen or unlawfully obtained may be found.�� LOLoA

search warrant not required under the provisions of the Poisons Act 1966 (NSW) �

The premises of a person who supplies or has in his or her possession any substance specified in any Schedule of the Poisons List, or who carries on the business of a producer, manufacturer or distributor of any such substance, may be searched.

While on the premises, an officer may require the production of any stocks of such substance in or about the premises, and may inspect them. She or he may also require the production of any records relating to any form of dealing with the substance. An officer may make copies or take extracts from such records and may inspect them. She or he may also seize, detain and remove any substance found on the premises with respect to which the officer has reasonable grounds to believe are in contravention of the Act.� ��LOLoA

search warrant not required under the Gaming and Betting Act 1912 (NSW) �

On a complaint on oath before an authorised justice under s 17B of the Gaming and Betting Act 1912 (NSW) a justice may authorise a member of the police force to enter and search premises where there is reasonable cause to believe that a person has a prohibited amusement device in their possession, or has permitted the use or operation of such a device. Such a warrant also enables seizure of any money in a seized device.

�A police officer may also apply to an authorised justice for a search warrant if the officer has reasonable cause to believe that a place is being used, or within 72 hours will be used, as a gaming or illegal betting house.

In addition, a police officer is able to stop, search and detain any person whom the officer reasonably suspects of having or conveying an unlawful betting aid, or any vehicle or vessel in which the officer reasonably suspects there is an unlawful betting aid.� ��LOLoA

search warrant not required to inspect motor traders premises �

Under s 7C of the Traffic Act 1909 (NSW), indicating a police officer authorised by the Commissioner of Police may enter at any time premises or a place of business on which cars are repaired, to inspect motor vehicles or parts of them to determine whether they are stolen.� ��LOLoA

search warrant not required when domestic violence suspected within a dwelling house. �

A police officer who believes on reasonable grounds that an offence has recently been committed, is imminent, or is likely to be committed in any dwelling house and who believes that the offence is a domestic violence offence, may enter the dwelling house and remain there.

The power is subject to the qualification that such an entry may not be made if an occupier refuses entry, although an invitation is given, unless the invitation is made by the person whom the police officer believes to be the person on whom a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed. �LOLoA

search warrant not required to search vehicles and vessels in a broad range of circumstances. �

A police officer may stop, search and detain any vehicle in which it is reasonably suspected that there is anything stolen or otherwise unlawfully obtained, or anything used or intended to be used in the commission of an indictable offence.

If a police officer suspects on reasonable grounds that a dangerous article is being or has been used in the commission of an indictable offence, and that it is in the possession of any person in a public place or is in any vehicle, vessel, aircraft, package or receptacle which is in a public place and is in the possession or under the control of any person, the officer may, without warrant, detain and search the person and any such vehicle, vessel, aircraft, package or receptacle, and may seize and detain any dangerous article found as a result of the search.�� LOLoA

search warrants can be issued by the State Drug Crime Commission Act 1985 (NSW). �

The Commission must have reasonable grounds for suspecting that on a particular day or within a month of the day on which application is made, there may be, in or on any premises, material connected with relevant drug activity into which the Commission is conducting an investigation. The Commission must also believe on reasonable grounds that, if a summons were issued for the production of the thing or things, they might be concealed, lost, mutilated or destroyed.

If a magistrate is satisfied that there are reasonable grounds for doing so, he or she may issue a search warrant authorising any police officer, or any other person, to enter the premises, search them for things of the relevant kind, and to seize them and deliver them to the Commission.� Search warrants so issued must include a statement of the purpose for which they are issued. Such a statement must include a reference to the matter relating to a relevant drug activity into which the Commission is conducting an investigation, and with which the things of a relevant kind are connected, as well as a description of the kind of things for which seizure authorisation is given. �LOLoA

getting arrested - notes

Remember the tips on �getting arrested� provided in Part One of this document. Say nothing. Sign nothing. Be polite. You can only fight the Police in a Court - whenever you are in a Police Station: shut up.

getting arrested - index

elements to a lawful arrest. 9

while actual physical restraint will fulfil the requirement of arrest, much less will suffice. 9

arrester must generally inform the arrestee of the reason for the arrest. 9

arrester must use only force that is necessary and reasonable. 10

arrest by a private citizen - power of arrest without warrant is limited. 10

arrest by a private citizen (under Commonwealth legislation)� is confined to indictable offences which the person being arrested is reasonably believed to be committing or have just committed. 10

resistance to arrest is lawful if the accused believes on reasonable grounds that his or her actions in resisting are justified.. 10

a wide range of provisions give powers of arrest without warrant with major general arrest without warrant provisions contained in the Crimes Act 1914 (Cth) 10

arrest without warrant for a breach of the peace. 11

belief or suspicion on reasonable grounds the outer limit of the powers possessed (normally by police officers) for arrest without warrant. 11

committing and in the act of committing depend on the particular legislation and context - general observations� 11

power to arrest for a breach of the peace is limited by the requirements of presence and promptitude. 11

reasonable suspicion or belief (grounds for arrest) need not, and often will not, consist of material admissible at a trial. 12

where force is used to apprehend a person there are common law requirements of necessity and proportionality. 12

confessions - A McKinney direction is required where the only, or substantially only, evidence against the accused is a disputed confession allegedly made in police custody which is not reliably corroborated. 12

if invited to attend a police station to be interviewed without being formally arrested [don�t go] � regarding the duty of police officers. 13

getting arrested - full text.

elements to a lawful arrest.

First, a sufficient act of arrest, secondly, informing the person being arrested (the arrestee) that he or she is under arrest, and thirdly informing the arrestee of the reason for the arrest: ��LOLoA

while actual physical restraint will fulfil the requirement of arrest, much less will suffice. It is sufficient if the arrester either:

(1) touches the arrestee; or

(2) informs the arrestee that he or she is under arrest and the arrestee submits or appears to submit to the arrester. It is not an arrest if the arrester merely utters words of arrest but the person sought to be arrested is not touched and does not submit to the arrester.

Submission by the arrestee can be given by words or by conduct; for example, accompanying the arresting officer to the rear of the police vehicle.� �LOLoA

arrester must generally inform the arrestee of the reason for the arrest.

Failure to do so can make the arrest unlawful (�unless circumstances make this unnecessary or impracticable�).

The arrester need state only the general nature of the offence for which the arrest is being made.

An arrest is not unlawful simply because the arrestee is not later charged with the offence stated as the reason for the arrest but with some other offence, provided that the original arrest was validly made. Therefore, it is not unlawful to use minor "holding charges" as the ground for arrest when the police are still investigating the arrestee on far more serious charges, provided that there are valid grounds for the arrest on the minor holding charge.

An arrest, initially unlawful because of failure to notify the arrestee of the grounds for the arrest, becomes lawful from the time when the arrestee is so notified (the �you can�t possibly win� escape clause).� �LOLoA

arrester must use only force that is necessary and reasonable

The Crimes Act 1914 (Cth), s 3ZC(1) provides that a person arresting "must not�use more force or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest". Section 3ZC(2) stipulates restrictions on actions likely to cause death or grievous bodily harm. The section provides that a constable must not in the course of arresting a person do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that it is necessary to protect life or to prevent serious injury to another person (including the constable). The same limitations on conduct likely to cause death or grievous bodily harm apply when a person is attempting to escape arrest by fleeing, but in addition the constable must, if practicable, have called on the person to surrender and believe on reasonable grounds that the person cannot be arrested in any other way. This restriction on actions likely to cause death or grievous bodily harm applies only to constables. ��LOLoA

arrest by a private citizen - power of arrest without warrant is limited. A private citizen may lawfully arrest without warrant a person whom he or she reasonably suspects of having committed a felony provided that the felony has in fact been committed.

A police officer has the same power of arrest without warrant on reasonable suspicion of felony as a private citizen, but such an arrest will be lawful even if a felony has not in fact been committed. Both a private citizen and a police officer may arrest a person convicted of felony who is illegally at large; who commits a breach of peace in their presence, provided the arrest is made quickly; or whom they reasonably fear will commit or renew a breach of the peace. There is some authority for the proposition that both a private citizen and a police officer may arrest a person whom he or she reasonably suspects of having committed an attempted felony.The phrase "reasonably suspected" is discussed in the context of similar expressions which occur in statutory powers of arrest. ��LOLoA

arrest by a private citizen (under Commonwealth legislation)� is confined to indictable offences which the person being arrested is reasonably believed to be committing or have just committed.

The Crimes Act 1914 (Cth), s 3Z(1) provides that a person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing, or has just committed, an indictable offence and proceedings by summons against the other person would not achieve one or more of the purposes referred to in s 3W(1)(b). A person who arrests another person under s 3Z(1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.

The power does not extend to offences which are or are reasonably believed to have been committed at an earlier time. The Crimes Act 1914 (Cth), s 4G defines "indictable offences" as "offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months�unless the contrary intention appears".� �LOLoA

resistance to arrest is lawful if the accused believes on reasonable grounds that his or her actions in resisting are justified

This requirement of reasonableness applies to both the use of force and the amount of force used. In the case of a lawful arrest, resistance will generally be unlawful since the arrestee will not believe, and/or a reasonable person in the arrestee's position would not believe, that resistance was justified. Therefore, the arrestee who uses force in resisting will be criminally liable for assault and for any injuries or damage that he or she causes. [ie, Would probably incur either or both a Hindering Police or Assault Police charge].

However, not every resistance of a lawful arrest will necessarily be unlawful. The circumstance of an arrest made lawfully may be such that the person being arrested genuinely and reasonably believes in the need for forcible resistance. In such a case the forcible resistance (if not excessive) is not unlawful.

� If the arrest is unlawful, the person being arrested is entitled to use reasonable force to resist or escape. The arrest may be unlawful because, for example, the arrester had no authority to make the arrest, did not tell the person being arrested the reason for the arrest, or used excessive force. In such cases, if the person arresting is a police officer, that officer will not be acting in the execution of his or her duty and a charge of assaulting or resisting a police officer in the execution of his or her duty will fail since an essential element of the charge cannot be made out.

However, the person resisting arrest may be guilty of common assault (or a related offence) if the force used in the circumstances was not reasonable. ��LOLoA

a wide range of provisions give powers of arrest without warrant with major general arrest without warrant provisions contained in the Crimes Act 1914 (Cth)

These provisions form the basis of virtually all arrests without warrant. In addition to creating general powers of arrest without warrant, there are a large number of statutory provisions giving more specific powers of arrest without warrant. This discussion will concentrate on the more general statutory arrest powers in the various jurisdictions.

The Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) came into operation on 1 December 1994 and inserted Pt IAA into the Crimes Act 1914 (Cth)�

The amending legislation was based largely on the recommendations of the Gibbs Review Committee in its Fourth and Fifth Interim Reports. ��LOLoA

It contains detailed provisions dealing with search warrants; stopping and searching conveyances; powers of arrest with and without warrant; searches of persons arrested; and the taking of fingerprints and other means of identification, including identification parades.

In his Second Reading speech, the Minister for Justice set out some of the goals of the legislation: "to state clearly the balance considered appropriate between the community interest in effective law enforcement and the maintenance of individual rights and freedoms"; to be a comprehensive statement of the law contained in one statute and so far more accessible to the public; and to clarify the rights of both police and citizens in these important areas. ��LOLoA

arrest without warrant for a breach of the peace

Conduct amounting to a breach of the peace need not be criminal, although in nearly every case it will be.

Conduct amounting to a breach of the peace will generally involve danger of physical injury to someone or behaviour that is likely to lead to violence. Therefore rioting, fights between persons, or an assault by one person on another are breaches of the peace. In R v Howell (1981) 73 Cr App R 31, the Court of Appeal stated: Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property. ��LOLoA

belief or suspicion on reasonable grounds the outer limit of the powers possessed (normally by police officers) for arrest without warrant.

They are central to many of the most commonly used arrest provisions, and extend the power of arrest well beyond the frequently used situation justifying arrest, namely "finds committing":. While the expressions are not able to be defined with great precision, certain comments can be made. Suspicion is not the same as belief.In George v Rockett (1990) 170 CLR 104 ; 64 ALJR 384; 48 A Crim R 246 ; 93 ALR 483, a case dealing with the validity of a search warrant, the High Court found that the terms "reasonable grounds for suspecting" and "reasonable grounds for believing" require "the existence of facts which are sufficient to induce that state of mind in a reasonable person".

In Hussien v Kam [1970] AC 942; [1970] 2 WLR 441; [1969] 3 All ER 1626, Lord Devlin said suspicion "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove!'"

The facts which can reasonably ground a suspicion may be insufficient to reasonably ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 ; 40 ALJR 13, Kitto J stated "[a] suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence'". ��LOLoA

committing and in the act of committing depend on the particular legislation and context - general observations �

The expression "finds committing" appears to require that some person actually witness the offence through any of the five senses.

However, who is entitled to make the arrest can depend on the precise words of the statute. If the statute provides that "it is lawful for any person who finds another committing the offence to arrest him without warrant�,the power of arrest is confined to the person who witnessed the offence.

However, a statute which provides that "any person found committing any offence�may be immediately apprehended without a warrant by any person", would appear to permit the arrest to be made lawfully by persons who did not witness the offence, provided that the person arrested was in fact found committing the offence by someone.

Even if the statute is silent as to when an arrest may be made, the language and purpose of the "found committing" arrest provisions points to a requirement that any such arrest be made at the time of the finding or very soon after. ��LOLoA

power to arrest for a breach of the peace is limited by the requirements of presence and promptitude.

Arrests for breach of the peace

(1) can be made only by a person who was present when the breach of peace occurred or by a police officer at the request of a person who was present; and

(2) must be made at the time of the breach of the peace or immediately afterwards unless there is a reasonable apprehension of a renewal of the breach of the peace or an arrest was attempted at the time of the breach but could not be effected until later because the arrestee fled and the intervening time was spent in pursuit.

The policy underlying these rules is that: [T]he power to arrest for breach of the peace is limited to an emergency; when the emergency is over the power ceases, for there is nothing to stop the officer obtaining a warrant. ��LOLoA

reasonable suspicion or belief (grounds for arrest) need not, and often will not, consist of material admissible at a trial.

Suspicion or belief may be based on such matters as hearsay,a person's failure to answer questions,or a person's prior convictions.As Vincent J stated in Walsh v Loughnan [1991] 2 VR 351: In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and beliefs to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist. ��LOLoA

where force is used to apprehend a person there are common law requirements of necessity and proportionality.

The early common law distinguished between "resisting arrest" situations and "fleeing from arrest" situations. Where the person being arrested resisted, the arrester was entitled to use force to arrest and fatal force, provided that such force was necessary to make the arrest. There was no requirement that the arrester delay the arrest, even if it was probable that the arrest could be made later without difficulty and there was no likelihood of any harm being done in the intervening period by the person who was to be arrested. Where the person to be arrested fled, the amount of force that could be used depended on the offence for which the arrest was being made. If the offence was a felony, fatal force could be used, provided that such force was necessary to make the arrest. If the offence was not a felony, fatal force could not be legally used, even if the person would otherwise escape. If an arresting police officer killed the person he or she was seeking to arrest, the killing was lawful provided that the officer believed on reasonable grounds that the person he or she was attempting to arrest was a felon.

However, if an arresting private citizen killed the person he or she was attempting to arrest, the killing was unlawful if the person killed had not committed a felony, even if the private citizen believed on reasonable grounds that the person had. In such a case, the private citizen was guilty of manslaughter at least. Fatal force could not be used unless it was necessary � that is, there was no other way of making the arrest. Therefore, in the case of the fugitive fleeing, it was generally necessary to shout "Stop or I'll shoot" to see if this would stop the fugitive.

Similar rules applied with regard to the recapture of an escaped arrestee. Fatal force could be used if necessary to recapture a person who has been arrested for a felony; but fatal force could not be used to a recapture a person who had been originally arrested for a misdemeanour. LOLoA

confessions - A McKinney direction is required where the only, or substantially only, evidence against the accused is a disputed confession allegedly made in police custody which is not reliably corroborated.

Disputes about confessions have confronted criminal courts for many years. The problem still occurs too often, despite the existence of reliable means of authenticating police interrogation by electronic recording. In the absence of reliable authentication, the evidence in respect of a disputed confession will often consist of the contradictory versions of police and accused. In such cases accused persons are at a great disadvantage. Without any evidence to corroborate their account, they are generally seeking to impugn the sworn evidence of experienced police officers, and, if they give sworn evidence, may expose to the jury their own character and prior convictions. To overcome or neutralise these disadvantages, the High Court in McKinney v The Queen (1991) 171 CLR 468 established a rule of practice, sometimes referred to as a McKinney direction. A McKinney direction must be given where a disputed confession allegedly made to police officers while in police custody is not reliably corroborated and is the only, or substantially the only, evidence against the accused.

The content of the McKinney direction is as follows:

(1) The jury must be instructed to give very careful consideration to the dangers involved in convicting an accused on the basis of such confessional evidence.

(2) The jury should be told:

(i) that it is more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence to challenge police evidence of confessional statements than it is for police to fabricate such evidence; and

(ii) that police witnesses are often experienced witnesses and it is not easy to determine whether an experienced witness is telling the truth.

(3) The jury should also be told that persons who make confessions sometimes repudiate them later.

(4) The jury should not be directed in such a way as to create the impression that the jury must decide whether in fact the police have perjured themselves.

In R v Derbas (1993) 66 A Crim R 327 , Hunt CJ made various observations about what should be in a McKinney direction and concluded with the following suggestions: It is also proper (but not compulsory) for the judge when explaining why the McKinney direction is given, to say to the jury:

(1) that such a direction must be given in every case in which the Crown relies solely (or substantially solely) upon the relevant evidence of police officers in order to establish the guilt of the accused;

(2) that it is not given in that particular case because of any view which he or she may have formed concerning the evidence of the particular police officers who have given evidence in that case;

(3) that the weight to be given to their evidence is the jury's decision, not that of the judge; and

(4) that the fact that the McKinney direction has been given should not be understood by them as indicating that any particular view of the evidence in question has been formed by the judge.

A McKinney direction is not required where there is a disputed confession made in police custody which is not reliably corroborated if the disputed confession is not the only, or substantially only, evidence against the accused person. However, in some such cases, independently of a McKinney direction, a warning will be required about the danger of convicting on the basis of a disputed confession which is not reliably corroborated, for example when the other evidence of guilt is itself a matter of strong dispute. ��LOLoA

if invited to attend a police station to be interviewed without being formally arrested [don�t go] � regarding the duty of police officers

Under the common law and in some jurisdictions, a suspect cannot be detained after arrest for interrogation or further investigation but must be taken to a justice. In order to circumvent this requirement, police may on occasion purport not to arrest a suspect, but invite that person to accompany them to the police station to be interviewed.

In some cases, the suspect might also be explicitly told that he or she is not under arrest. The status of the suspect (whether free to leave or not) is ambiguous. The appropriate test to be applied in order to determine whether or not the suspect is under arrest is not clear. In R v O'Donoghue (1988) 34 A Crim R 397 , the New South Wales Court of Criminal Appeal having stated that "[a]n arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person", went on to say that if the suspect considered that he or she was not free to leave not because of anything the police officer said or did, but "solely from the suspect's own belief that a request from a police officer constituted a command", then the suspect had not been arrested. There is, by implication, no duty on the police officer who wishes to avoid an arrest to disabuse a suspect of any error about his or her status � whether under arrest or free to leave.

However, in R v Conley (1982) 30 SASR 226 ; 6 A Crim R 51 , King CJ stated: A person is apprehended � when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty [R v King [1978] 19SASR 118, King J at 128�129 ], even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance.

If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.

Under this test, if the circumstances are such as to convey to a reasonable person that he or she has no real choice, the police officer has a duty to inform the suspect not only that he or she is not under arrest but also that he or she is free to leave. A failure to do so may have the effect that the apparent invitation or request is in fact an arrest.

Ultimately, whether or not there has been an arrest is a question of fact, to be determined in the light of all the circumstances. However, certain indicia point to arrest rather that voluntariness: locking a suspect in an interview room; guarding a suspect; restricting a suspect's movement; or preventing him or her from contacting other people.

It is possible that the difficulties associated with whether and when an arrest has been made will be decreased considerably with legislation allowing for some period of custodial interrogation. ��LOLoA

drug charges - notes.

The following notes encompass only some of the main questions asked about some of the most common drug charges. As soon as you are charged with an offence seek legal advice.

All Australian legislation is available free online at Austlii.com.au.

drug charges - index.

administration to another NSW... 14

administration to oneself NSW... 14

allegation of supply of a large commercial quantity must be alleged in the indictment. NSW OTHER.. 15

attempting to import a prohibited drug is a statutory offence, the term "attempt" is used in its common law sense. CTH�� 15

bongs - it is an offence to possess equipment for use in connection with the consumption of a proscribed drug or plant, or to possess equipment for use in connection with the preparation or manufacture of a prohibited drug or plant for consumption. NSW... 15

carries on the business of trafficking � Queensland OTHER.. 15

cause to sell or supply - more is required than a mere request NSW... 15

complicity (being a party) in drug offence NSW... 15

conspiracy to commit drug offence NSW OTHER.. 15

conspiracy offences� NSW... 16

conspiracy to import -� it don�t matter that it�s Glucodin! CTH.. 16

cultivating controlled plants� CTH.. 16

cultivation includes not only caring for a plant during the process of growth, but activities prior and subsequent to the period of growth�� NSW... 16

cultivation & possession of cannabis seeds. 16

cultivation, production and manufacture commercial quantity - separate offence NSW... 17

cultivation, production and manufacture -statutory definitions NSW OTHER.. 17

deal in, trade in and distribute - not single instance or personal use NSW OTHER.. 17

dealing in drugs CTH.. 17

drug offences � terms CTH.. 17

drug offences � trafficking CTH.. 18

importation CTH.. 18

importation can occur through an innocent agent CTH.. 18

importation does not necessarily cease when goods have arrived in australia. CTH.. 18

importing and exporting border controlled drugs, border controlled plants or border controlled precursors CTH�� 18

in most jurisdictions, special provisions relate to those who deal frequently, or in particularly large quantities of drugs. 19

it is an offence for a person to aid, abet, counsel or procure the commission of an offence in another jurisdiction which corresponds to an offence against the local drug legislation. NSW OTHER.. 19

it is an offence to forge or to fraudulently alter a prescription or to knowingly utter a forged or altered prescription. NSW OTHER.. 19

it is an offence to sell by falsely representing a drug to be a drug of dependence� NSW... 20

knowingly concerned in the importation of prohibited drugs even when no-one has been, or will be, convicted of importation. CTH.. 20

knowledge NSW... 20

knowledge, intent or purpose may be inferred from facts CTH.. 20

manufacturing controlled drugs CTH.. 20

minute quantities NSW OTHER.. 20

offences relating to occupiers, owners, or managers of premises used for the commission of drug offences. NSW OTHER.. 20

offering for sale or supply - truth irrelevant NSW OTHER.. 20

drug charges - full text.

administration to another NSW

�it is an offence to administer a prohibited drug to another person. .

�exceptions exist for:

persons who administer such a drug to a person for or to whom it has been lawfully prescribed or supplied;
specified health workers; or
persons otherwise licensed or authorised to administer such a drug to others. HLoA

administration to oneself NSW

� a person who uses or consumes a prohibited drug commits an offence. However exceptions are provided where the user:

has been lawfully prescribed or supplied with the drug; or

is otherwise authorised to do so.

� a person who causes or permits a prohibited drug to be administered to him or her by another person commits an offence.

� an exception is provided for persons for or to whom such a drug has been lawfully prescribed or supplied. HLoA

allegation of supply of a large commercial quantity must be alleged in the indictment. NSW OTHER

A single charge of supplying a large commercial quantity can be pleaded, notwithstanding that the supply consists of a number of acts where the aggregate amount supplied is a large commercial quantity but where each act involves a quantity not amounting to a large commercial quantity. This will be permitted "provided that those acts of supply may fairly and properly be identified as part of the same commercial enterprise or the one criminal activity, and provided that there is no unfairness to the accused".� ��LOLoA

attempting to import a prohibited drug is a statutory offence, the term "attempt" is used in its common law sense. CTH

A person can be convicted of attempting to import a prohibited drug notwithstanding that the drug with whose importation the person is involved turns out to be a drug whose importation is not prohibited. A magistrate therefore erred in holding that a person could not be guilty of attempting to import cannabis when the drug which the person had imported into Australia was procaine.

"The intention which the Crown must prove is an intention to bring about each element of the crime alleged to be attempted, and it must be proven that this intention is accompanied side by side by an act sufficiently proximate to the offence attempted to take it out of the class of mere preparatory acts."� ��LOLoA

bongs - it is an offence to possess equipment for use in connection with the consumption of a proscribed drug or plant, or to possess equipment for use in connection with the preparation or manufacture of a prohibited drug or plant for consumption. NSW

�a person also commits an offence if he or she:

sells a waterpipe;
supplies a waterpipe in the course of, or in connection with, a commercial transaction; or
displays a waterpipe in a shop, or near but in connection with a shop, unless he or she satisfies the court that the display was not for a commercial purpose. HLoA

�this offence does not apply to hypodermic syringes and needles�

carries on the business of trafficking � Queensland OTHER

In Queensland, the legislation creating the offence of trafficking explicitly refers to carrying on the business of trafficking. �

'Carrying on the business of trafficking' is a composite phrase with two essential elements. 'Trafficking' in a dangerous drug or prohibited plant includes both selling and distributing it for profit and also its purchase for the purpose of dealing in it or supplying it for reward to others. Also, there may be trafficking between persons neither of whom is a user of the relevant drug or plant, and even if the drug or plant never in fact reaches a user. However, the purchase of such a drug or plant for one's own use will not constitute trafficking. It is uncertain whether the meaning attributed to 'trafficking' in Tasmania and Victoria applies equally to trafficking as it is used in the Queensland legislation. . HLoA

cause to sell or supply - more is required than a mere request NSW

A person causes another to sell or supply a prohibited drug or plant if he or she has a capacity to order or direct that other person to supply such a drug or plant, or expose one for sale, and he or she makes such an order or direction, desiring that the prohibited act will take place. Hence, more is required than a mere request by a person to a friend to obtain and sell a prohibited drug to him or her. HLoA

complicity (being a party) in drug offence NSW

In all jurisdictions except the Australian Capital Territory the legislation contains specific provisions making it an offence to be a party to the commission of drug offences.

In the Northern Territory, New South Wales, Queensland, Tasmania and Victoria, a person commits an offence if he or she, while in the relevant jurisdiction, is a party to an act done in a place outside that jurisdiction which:

is a drug offence in that jurisdiction; and
is an offence under a corresponding law of that place.

In addition, in Victoria a person commits an offence if he or she does an act preparatory to the commission of an offence in a place outside Victoria which is an offence under a law of that place and which corresponds to one of several specified Victorian drug offences.

In New South Wales and Victoria it is also a separate offence to aid, abet, counsel, procure, solicit or incite the commission of certain specified drug offences. HLoA

conspiracy to commit drug offence NSW OTHER

� it is an offence to conspire with another person or other persons to commit a specified drug offence. (In addition, a person in Victoria who conspires with another person, or other persons, to commit an offence in any place outside Victoria which is an offence under the provisions of a corresponding law in force in that place is liable to the same penalty and forfeiture as if the offence had been committed within Victoria.) HLoA

conspiracy offences �NSW

To prove a conspiracy, what is required is proof of an agreement to engage in proscribed behaviour, and not an agreement to do each of the overt acts relied on as evidence of that agreement.

To prove conspiracy to possess, it is not necessary to prove that any of those parties to an agreement possessed the proscribed drug at the time of the agreement. Nor is it necessary for the Crown to prove that the prohibited drug be in existence at the time of the agreement. It is, however, necessary that it be agreed that acts be done, which if done, would bring about the state of affairs that constitute the principal offence.

A conditional agreement can constitute a conspiracy notwithstanding that the condition is not satisfied. Accordingly an agreement to possess a drug if and when a supplier could be found would constitute a conspiracy.

To prove a conspiracy to supply, it is not enough to prove that there was an agreement to put a would-be purchaser in touch with a possible supplier.

The fact that a person supplies a large amount of a proscribed drug in circumstances where it is likely that the drug will be on-sold to others does not mean that the seller is guilty of a conspiracy in relation to those subsequent sales. To establish a conspiracy, it would be necessary to show that there was an agreement that this should happen.

To prove a conspiracy between A, B and C to possess for the purpose of supply, the Crown must show that A, B and C agreed both to take steps to possess the drug in question, and that they did so with the shared intent that it be on-supplied. A is not involved in such a conspiracy if the agreement is that A will assist B and C to acquire drugs for on-supply, since there is no agreement for joint possession. Nor is A a party to a conspiracy to possess for supply unless the agreement between A, B and C encompasses on-supply.� ��LOLoA

conspiracy to import -� it don�t matter that it�s Glucodin! CTH

In R v Lee (1990) 1 WAR 411; 47 A Crim R 187, the defendants were charged (inter alia) with an offence against s 233(1)(c) of the Customs Act 1901 (Cth) in that they had attempted to obtain possession of a commercial quantity of imported heroin. (The heroin had been concealed in a clock, but customs officers had largely replaced it with Glucodin before the package could be collected.) The Western Australian Court of Criminal Appeal held it would have been open to a jury to convict the defendants of attempting to possess a commercial quantity of heroin, so long as the quantity of heroin in the clock amounted to a commercial quantity.� ��LOLoA

cultivating controlled plants �CTH �

Under the (CTH) Criminal Code, it is an offence to cultivate controlled plants. More serious offences arise where commercial purpose and commercial quantities or marketable quantities of controlled drugs are involved. If a trafficable quantity is involved, it is presumed that the person had the necessary intention or belief concerning the sale of the substance to have been cultivating the plant for a commercial purpose. HLoA

cultivation includes not only caring for a plant during the process of growth, but activities prior and subsequent to the period of growth ��NSW

Cultivation includes not only caring for a plant during the process of growth, but activities prior and subsequent to the period of growth. It thus includes preparation of the soil and sowing, as well as reaping and harvesting. It also includes watering growing plants.

"Cultivation" is not confined to cultivation in the soil: it includes watering seeds which are being germinated, and keeping seeds moist in tissue paper, pending their planting.

�legislation makes it an offence to cultivate or knowingly take part in the cultivation of a number of plants not less than the commercial quantity.

To be guilty of this offence, a person must intend not only to cultivate, but to cultivate a quantity at least as great as the commercial quantity of plants. However, evidence that the accused actually knew the crop consisted of a number of prohibited plants not less than the commercial quantity, is but one way of proving the necessary intention. Intention may be proved by showing beyond reasonable doubt that the accused had a belief, falling short of actual knowledge, or was aware of the likelihood, in the sense that there was a significant or real chance, that the crop consisted of this number of plants.

.. there is an express provision that it is a defence to a cultivation charge that persons charged can prove on the balance of probabilities that they did not know or suspect and could not reasonably have been expected to know or suspect that the plant in question was a proscribed plant.

Where there is a question of whether particular people are involved in cultivation, evidence may be led not only in relation to those persons being found close to the area of cultivation, and of possession of items apparently used by those responsible for cultivation, but also items (such as snail repellant and fertiliser) which could be used for cultivation, and items (such as cannabis seeds) which could be the basis for future cultivation. �LOLoA

cultivation & possession of cannabis seeds

Possession of cannabis seeds in itself is not necessarily sufficient evidence to support a finding that a person suspected of involvement in cultivation is in fact guilty of cultivation.�� LOLoA

cultivation, production and manufacture commercial quantity - separate offence NSW

In New South Wales, a person is guilty of an offence if he or she:

cultivates, or knowingly takes part in the cultivation of, a prohibited plant; or
manufactures, produces, or knowingly takes part in the manufacture or production of, a prohibited drug.

It is a separate offence, with higher maximum penalties, if he or she:

cultivates, or knowingly takes part in the cultivation of a commercial quantity of, a prohibited plant; or
manufactures, produces, or knowingly takes part in the manufacture or production of, a commercial quantity of a prohibited drug. HLoA

cultivation, production and manufacture -statutory definitions NSW OTHER

Legislation in all States and Territories, except Tasmania, contains definitions of 'cultivation', 'production' or 'manufacture', or a combination of those terms.

In New South Wales, 'cultivate', in relation to a prohibited plant, is defined to include:

the sowing or scattering of the seed produced by the prohibited plant; and

1. the planting, growing, tending, nurturing or harvesting of the prohibited plant.

'Manufacture', in relation to a prohibited drug, is defined to include the process of extracting or refining the drug. HLoA

deal in, trade in and distribute - not single instance or personal use NSW OTHER

'Dealing' has the connotation of disposition, distribution or on-selling, and does not have a connotation of receiving or acquiring, or having a drug only for personal use. In addition, the expression 'dealing in' involves a concept of continuity which does not indicate a single incident.

A person who purchases a drug merely for his or her own use does not 'trade in' that drug, and similarly giving a drug to only one person for his or her own use does not constitute 'distribution'. HLoA

dealing in drugs CTH �

'Dealing in drugs' is defined to include:

the cultivation of opium poppy, coca bush or cannabis plant with the intention of producing narcotic drugs;
the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained;
the manufacture, extraction or preparation of a narcotic drug or psychotropic substance;
the possession of such a drug or substance with the intention of the manufacture, extraction or preparation of another such drug or substance;
the sale, supply, or possession with the intention of sale or supply, of such a drug or substance;
the importation into Australia, exportation from Australia, or possession with the intention of such importation or exportation, of such a drug or substance;
the manufacture, transport or distribution of any substance listed in Table I or II in the Annex to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the 'Convention'), or of equipment or materials, with the knowledge that the substance, equipment or materials are to be used for a purpose set out in list item (1), (2) or (3) above;
organising, managing or financing a dealing in drugs referred to in list items (1)-(7) above;
the possession of any substance listed in Table I or II in the Annex to the Convention or of any equipment or materials, with the knowledge that the substance, equipment or materials are being used, or are to be used, for a purpose set out in list items (1), (2) or (3) above;
a conspiracy or attempt to engage in conduct set out in any one of list items (1)-(9) above;
being a party to conduct described in any one of list items (1)-(9) above;
aiding, abetting, counselling or procuring, or being by act or omission directly or indirectly knowingly concerned in, conduct that is described in any one of list items (1)-(9) above; and
urging, encouraging, or inciting another person to engage in conduct that is described in any one of list items (1)-(9) above. HLoA

drug offences � terms CTH �

The terms used to describe the prohibited substances vary in the respective Commonwealth, Territory and State legislative schemes. Under Commonwealth law, serious drug offences are contained in the Criminal Code and, for offences relating to import and export, the terms used are 'border controlled drug', 'border controlled plant' and 'border controlled precursors'. For offences with broader domestic application, the terms used are 'controlled drug', 'controlled plant' and 'controlled precursors'. Certain import and export offences are in the (CTH) Customs Act 1901 and its associated Regulations where the terminology used includes 'drug', 'narcotic goods', 'narcotic related goods', 'narcotic substance', 'tier 1 goods' and 'prohibited imports'. A scheme for regulating the manufacture of controlled substances is provided for in (CTH) Narcotic Drugs Act 1967 and the general terminology used in that legislation is 'drug' and 'narcotic preparation'. Other legislation relating to traffic in narcotic drugs and psychotropic substances is the (CTH) Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. HLoA

drug offences � trafficking CTH �

Chapter 9 of the (CTH) Criminal Code contains a range of serious drug offences which relate to drug trafficking and which gives effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. These include:

trafficking controlled drugs;
cultivating controlled plants;
selling controlled plants;
manufacturing controlled drugs;
pre-trafficking controlled precursors;
importing and exporting border controlled drugs or border controlled plants;
possessing unlawfully imported border controlled drugs or border controlled plants;
possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported;
drug offences involving children.

If, on the same occasion, an offence is committed in relation to different parcels of drugs, plants or precursors, the person may be charged with a single offence in respect of all or any of the different parcels of drugs, plants or precursors. Where commercial quantities or marketable quantities of a drug, plant or pre-cursor are involved, the prosecution may prove the element of the offence relating to the quantity by proving that the person was engaged in an organised commercial activity which involved repeated trafficking, pre-trafficking, importing, exporting or supplying, as the case may be, or by proving that the relevant quantity of the drug, plant or pre-cursor was trafficked, pre-trafficked, imported, exported or supplied, respectively, in the course of that activity. HLoA

importation CTH

Importing or exporting a border controlled drug, a border controlled plant or a border controlled precursor, for the purposes of the import-export offences in Division 307 of the (CTH) Criminal Code, includes, respectively, bringing it into or taking it from Australia. Prior to its amendment in 2005, the (CTH) Customs Act 1901 made it an offence to import into Australia prohibited imports. Under that provision, 'importation' meant bringing into Australia from abroad and goods were not imported until they were physically landed or brought within the limits of a port with the intention of landing them. That analysis would seem to have equal application to the provisions in Division 309 of the (CTH) Criminal Code. Accordingly, importation does not mean only the physical landing of goods itself, or the process concluding with the physical landing of goods. It is a process or venture which extends on both sides of the actual landing and its definition involves some measure of flexibility. Nevertheless, it does not extend indefinitely, without limitation as to time and place. To be part of the process of importation the relevant conduct must be proximate or directly related or incidental to the physical act of landing itself.

For the physical acts of importing and exporting, no fault element is specified in the import-export offences and this means that the default fault element for the physical act of importing or exporting is 'intention'. This physical act is one of conduct and a person has intention with respect to conduct if he or she means to engage in that conduct. Proof of recklessness will not be sufficient for the proof of intention although intention may be inferred by proof of knowledge that the person was importing the prohibited substance. HLoA

importation can occur through an innocent agent CTH

The doctrine of innocent agency, by which a person who commits a crime by the use of an innocent agent is liable as a principal offender but the agent is not liable at all, applies to offences in the (CTH) Criminal Code. Accordingly, a person may commit the crime of importing a border controlled drug, a border controlled plant or a border controlled precursor through an innocent agent. HLoA

importation does not necessarily cease when goods have arrived in australia. CTH

So long as an act is proximate to importation, it can amount to importation.

However: Neither Commonwealth power nor the language of the Customs Act 1901 (Cth) will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorised as knowing concern in their "importation".

Importation begins when goods are brought within the limits of a port with the intention of being discharged, or when they are landed.

A person who employs an innocent agent to import drugs into Australia may be guilty of importation,� ��LOLoA

importing and exporting border controlled drugs, border controlled plants or border controlled precursors CTH

Under the (CTH) Criminal Code, it is an offence to import or export a border controlled drug, a border controlled plant or a border controlled precursor. More serious offences arise where commercial quantities or marketable quantities are involved. With those offences, the default fault element for the physical act of importing or exporting is 'intention'. Except where commercial quantities are involved, it is a defence for the person to prove that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products. The (CTH) Criminal Code also has a less serious offence of importing or exporting a border controlled drug or border controlled plant for which the prosecution does not need to establish commercial intent. In the case of a border controlled precursor, a person who imported or exported it without an authorisation required under a law of the Commonwealth or of a State or Territory is taken to have imported or exported it with the intention to use some or all of them to manufacture a controlled drug or with the belief that another person intends to so use them. HLoA

in most jurisdictions, special provisions relate to those who deal frequently, or in particularly large quantities of drugs.

In the Australian Capital Territory, higher penalties apply where sale or supply, participation in sale or supply, or possession for sale and supply are alleged and proved, and where the prosecution can prove that a "commercial quantity" of the drug was involved.

In relation to cultivation of prohibited plants, a similar result is achieved by attaching higher statutory maxima to offences involving greater numbers of plants. Statutory maxima for manufacturing, however, are not related to the scale of the enterprise.

In New South Wales, it is an offence to possess, cultivate or supply a "commercial quantity" of plants, and to manufacture or supply a "commercial quantity" of proscribed drugs, and higher penalties apply where the quantity is a "large commercial quantity".

Northern Territory law prescribes higher maximum penalties for possession, cultivation, production or supply of more than a commercial quantity of proscribed drugs.

Queensland law provides for heavier penalties for possession or production of more than a prescribed quantity of a limited number of specified drugs.

South Australian penalties are higher where the amount exceeds a "prescribed quantity".

Victorian law provides for heavier penalties when it is proved that "trafficking" involved more than the "commercial quantity".

Western Australia makes provision for courts to declare a person a "drug trafficker" in certain circumstances. The first of these is where, within a period of 10 years prior to the day (or first day) of the offence of which a person is convicted, the offender had been convicted of two or more indictable drug offences. The second circumstance is where the offence is in respect of more than a prescribed amount of drugs or number of plants. In such cases, on an application being made, the court shall declare the person to be a drug trafficker.

The application may be made at the time of conviction, or at any time within six months of the conviction.

The effect of such a declaration is to enable action to be taken under the Crimes (Confiscation of Profits) Act 1988 (WA). In Tasmania, there are no special provisions for those who deal in particularly large quantities, but the maximum penalty for sale, supply or trafficking (21 years imprisonment) means that dealings in large quantities can be reflected in correspondingly long sentences. "Commercial quantities" or their equivalents are not prescribed in relation to all proscribed drugs. Details of the relevant quantities are provided in the table below.� ��LOLoA

Substance	ACT	NSW	NT	Qld	SA	Vic	WA
Amphetamine	2kg	250g	100g	-	-	.25/1.25k*	28g
Cannabis	100kg	25kg	500g	-	300g	25kg	3kg
Cannabis plants		250	20	-	-	100	250
Cannabis Resin	50kg	2.5kg	100g	-	2.5kg	-	1000g
Cocaine	2kg	250g	40g	200g	400g	.25/.5kg*	28g
heroin	1.5kg	250g	40g	200g	300g-	.25/.5kg*	28g
LSD	2g	.5g	.1g	.4g	.4g	.5g	.01g
Methadone	2kg	.5kg	.1kg	-	.3kg	-	5g
Methylamphetamine	2kg	.25kg	.1kg	-	-	.25/1.25kg*	28g
MDA	.5kg	.25kg	25g	-	-	.1/.5kg*	28g
MDMA (ecstasy)	.5kg	.5kg	25g	-	-	.1/.5kg*	28g
Morphine	1.5kg	.25kg	.1kg	-	.3kg	2kg	28g
angel dust	2kg	250g	40g	50g	-	100g	-
Opium	20kg	1kg	.1kg	-	4kg	-	100g

it is an offence for a person to aid, abet, counsel or procure the commission of an offence in another jurisdiction which corresponds to an offence against the local drug legislation. NSW OTHER

It is an offence to conspire with another person to commit an offence outside New South Wales if that offence would correspond to an offence which is an indictable offence under the New South Wales legislation. ��LOLoA

it is an offence to forge or to fraudulently alter a prescription or to knowingly utter a forged or altered prescription. NSW OTHER

It is also an offence for a person to make a false representation which causes an authorised person to give a prescription or to supply or administer a prohibited drug to that person.

New South Wales, Victoria and Western Australia also make it an offence to fail to inform a medical practitioner when seeking a prescription of other prescriptions recently obtained for prohibited drugs, or of the fact that the person is an addict.� ��LOLoA

it is an offence to sell by falsely representing a drug to be a drug of dependence �NSW

Under the New South Wales Poisons and Therapeutic Goods Regulation 1994 (NSW) it is an offence to supply a substance in a container with a label stating or implying that the substance is a drug of addiction if the substance is not such a drug.

There are no equivalent provisions in other jurisdictions.� ��LOLoA

knowingly concerned in the importation of prohibited drugs even when no-one has been, or will be, convicted of importation. CTH

In this respect, the elements of knowing concern differ from those required to establish that a person is an aider or abetter.

To be guilty of being knowingly concerned in the importation of prohibited drugs, a person must know that the goods are prohibited imports and prior to, or contemporaneously with, the importation, the person must have had something to do with the importation such that there was a practical link between the person and the importation.

A person who is concerned about an importation only because that person believes that its success will affect whether a share of the profits will be paid to him is not thereby concerned in the importation of the drugs.

Involvement in the distribution of imported drugs does not constitute involvement in importation.

However, taking steps to extract drugs from couriers (who had swallowed them and thereby brought them into Australia) constitutes involvement in the drugs' importation.� ��LOLoA

knowledge NSW

�the mental element which the prosecution must prove is that an accused knew that, or was aware that there was a significant or real chance that, a thing in his or her physical possession was a prohibited drug, that is, that he or she knew of both the existence and nature of the thing. However, it is not necessary to prove that he or she knew or was aware of the likelihood that it was the particular type of drug listed in the charge. HLoA

knowledge, intent or purpose may be inferred from facts CTH �

The (CTH) Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (the 'Act') explicitly states that if a specific knowledge, intent or purpose is an element of an offence contained in the Act, that mental element may be inferred from objective factual circumstances. HLoA

manufacturing controlled drugs CTH

Under the (CTH) Criminal Code, it is an offence to manufacture controlled drugs for a commercial purpose. More serious offences arise where there are commercial quantities or marketable quantities of controlled drugs. If a trafficable quantity is involved, it is presumed that the person had the necessary intention or belief concerning the sale of the substance to have been manufacturing in the substance for a commercial purpose. Heavier penalties may be imposed if an aggravated offence is committed. HLoA

minute quantities NSW OTHER

Where legislation creates an offence of possessing a prohibited drug or plant, possession of a minute quantity of that drug or plant, such that it is incapable of discernment by the naked eye and detectable only by scientific means, will not make a person guilty of that offence. To have committed the offence a person must be in possession of such a quantity of the prohibited drug or plant as to make it reasonable to say as a matter of common sense and reality that it was that drug or plant of which the person was in possession. HLoA

offences relating to occupiers, owners, or managers of premises used for the commission of drug offences. NSW OTHER

In Queensland it is a crime for the occupier or a person concerned in the management or control of a place to permit it to be used for the commission of a crime under Pt 2 of the Drugs Misuse Act 1986 (Qld).

In Tasmania, it is a summary offence for an owner or occupier of premises knowingly to permit their use in connection with the growth, manufacture, preparation, sale, distribution, trafficking, use or administration of a proscribed drug.

In Western Australia, it is an offence for the occupier of premises to permit them to be used for the manufacture, preparation, sale, supply or use of a prohibited plant or substance, in the absence of authorisation.

It is an offence for the owner or lessee to permit premises to be used for the purpose of using a proscribed drug or plant.

It is also an offence to be knowingly concerned in the management of premises used for any of the previously listed purposes.

In the Australian Capital Territory, New South Wales, the Northern Territory and South Australia, such behaviour makes a person a participant in the relevant activity.

In Victoria, there are no equivalent provisions, but the knowing provision of premises for the commission of drug offences would normally make the provider an accessory to the relevant offence.� ��LOLoA

offering for sale or supply - truth irrelevant NSW OTHER

[In NSW] 'sell' or 'supply' is defined as including offer to sell or supply, respectively.

�

All that is required for sale or supply to be established is the making of an offer to sell or supply accompanied by an intention by the offeror that the offer be regarded as genuine by the offeree.

It is irrelevant whether or not:

the offeror intends to actually complete the sale or supply;
he or she is in a position to do so; and
the offer is accepted but what is sold or supplied is not in fact a prohibited drug or plant. HLoA

possession -� general.

Possession offences are the most common type of offences involving drugs. The following notes have been compiled to assist in understanding the nature of these various offences and to indicate some possible defences at law.

possession -� index

possession -� at common law involves a mental element and involves and intent to control 21

possession - what constitutes - forgotten goods are still in possession.. 21

the offence of possession for use is not a strict liability offence. 22

possession - when found on land or premises occupied by other person. 22

momentary possession.. 22

possessing border controlled drugs or border controlled plants which are, or are reasonably suspected of being, unlawfully imported.. 22

possessing imported drugs requires only that the importation be such that the drugs are prohibited drugs, the police can act illegally and you will still get busted. 22

possession - expiation of simple cannabis offences - fines in the ACT and SA. 23

possession� - substance equipment or materials known to be used for dealing in drugs. 23

possession of imported drugs - person must intend to be in possession. 23

possession of more than a prescribed quantity of proscribed drugs or more than a prescribed number of proscribed plants invokes a presumption that the drugs or plants are for the purposes of sale or supply. 23

possession of prohibited plant and commercial quantities of a prohibited plant 24

possession or cultivation can be deemed to be for sale or supply. 24

possession -� full text

possession -� at common law involves a mental element and involves and intent to control NSW

Possession requires the intention to exercise control over the substance.

At common law, possession involves two elements: the physical relationship between the putative possessor and the thing putatively possessed and the mental attitude of the possessor to the thing.��

A person charged with possession of a prohibited plant must prove not knowing, and not being in a position to know that the plant was a prohibited plant.

In some circumstances it may be reasonable to infer the intent to possess from the fact of possession, but factual presumptions arising from physical control are rebuttable. Defendants who can raise reasonable doubts as to whether they intended to possess are entitled to be acquitted. People who have the requisite intent, but who believe that the drug is one form of proscribed drug when it is in fact another, nonetheless possess a proscribed drug and can be convicted accordingly.

A person charged with possession of one proscribed drug may be convicted notwithstanding that the evidence shows possession of a different drug.�� LOLoA

possession - what constitutes - forgotten goods are still in possession� CTH NSW

For a person to be guilty of the offence of possession he or she must have physical possession of the prohibited thing, accompanied by:

sufficient knowledge of it; and
an intention to have physical possession of it to the exclusion of all others not acting in concert with him or her.

However, normally such an intention will be established if sufficient knowledge of the thing is proved.

Moreover, mere physical possession of a thing may itself suffice to establish the offence of possession, including the necessary mental element, because the required knowledge may be inferred from the surrounding circumstances. Mere knowledge of the presence of an object, coupled with a future intention to exercise control over it, is not enough to amount to possession.

Several persons acting in concert may jointly have possession of an object, provided they each have physical possession of it, accompanied by:

sufficient knowledge of it; and
an intention to have physical possession of it to the exclusion of all others.

However, where the prosecution alleges possession by only one person, it must negate possession on the part of any other person. HLoA

If a person takes physical possession of a thing with the requisite intention, and subsequently his or her memory of having taken possession of the thing fades or disappears, he or she nevertheless remains in possession of the thing in law. HLoA

the offence of possession for use is not a strict liability offence.

The prosecution must therefore prove that the defendant intended to use the items for the relevant purpose.

There is some authority that it is not necessary that the Crown prove that the person in possession knew that the substance in connection with which it was to be used constituted a proscribed drug, but there is also authority to the contrary.

The object must be held "with the intention of devoting it to serve the purpose of assisting the commission of a crime of the type referred to".

The "use" which is relevant is the use which the person in possession intends to make of the article, and not the use that the maker of the article might have contemplated.

Where a person is charged with possession of an article for use, it is the use which the person intends to make of it on the date of the alleged offence which is relevant, and not some earlier intention which the possessor might have had.

If the drug offence is to be committed in the future and if its precise nature has not been fully envisaged, it may be difficult to prove that the thing in question is possessed with the requisite intent. If, however, the requisite intent can be proved, the offence will be made out notwithstanding that the drug offence to which it relates is to take place in the future, is not clearly envisaged, and indeed, is one which in fact may never take place. Thus it could be an offence under the Queensland legislation for a person to possess weapons which the person has agreed to supply in order to protect a cannabis crop where the person with whom the agreement is reached has no intention of growing the crop nor of using weapons to protect any crop. This will be the case so long as the accused possessed the weapons for the purpose of the drug offence, as distinct from some other purpose, such as simply selling the weapons to someone willing to pay the price requested.

The link between providing weapons for the purposes of protecting a marijuana crop may, however, not be sufficiently close to justify a finding that such provision would be for use in connection with the production of marijuana.

Conversely, there was a strong case to suggest pipes were possessed in connection with the smoking of Indian hemp when they were sold by a business catering to users of Indian hemp.

In the absence of express provisions to this effect, it is not necessary that the person in possession of the utensils possesses them for personal use, so long as they are to be used by someone."

Prepare", when used in a statute in the context of offences relating to the use and administration of a drug means preparing the drug for consumption, not engaging in its manufacture or production.�� LOLoA

possession - when found on land or premises occupied by other person. NSW

In New South Wales, a person is deemed to be in possession of a proscribed drug if it is in their "order or control".

What must be proved to the contrary is that the accused did not possess the drug. Possession means common law possession. It would therefore be an error for a judge to direct the jury to the effect that an accused had to show that he or she did not know that the drug was present on the property if on the evidence there could be other ways in which a person could prove lack of possession. LOLoA

momentary possession NSW OTHER

Momentary physical control over a prohibited drug or plant for the purpose of concealing it constitutes possession if accompanied by an intention to exclude any other person from physical possession of the drug or plant. HLoA

possessing border controlled drugs or border controlled plants which are, or are reasonably suspected of being, unlawfully imported CTH

Under the (CTH) Criminal Code, it is an offence to possess unlawfully imported border controlled drugs or border controlled plants. It is also an offence to possess border controlled drugs or border controlled plants where it is reasonably suspected that such drug or plant was unlawfully imported. More serious offences arise where there are commercial quantities or marketable quantities of such drugs or plants. With these offences, it is a defence for the person to prove that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported. HLoA

possessing imported drugs requires only that the importation be such that the drugs are prohibited drugs, the police can act illegally and you will still get busted. CTH

The fact that the importation involves the police does not of itself constitute a defence to a charge of possession even if the police have in fact acted illegally in arranging the importation.

Nor does the fact that police have taken possession of prohibited imports deprive them of the status of prohibited imports. This status flows from the fact that they are narcotics whose importation has not been authorised as required.

However, where police have illegally arranged the importation of drugs, courts have a discretion to exclude evidence of all evidence relating to offences thereby procured. Where the police misconduct constitutes the principal offence and where the accused's behaviour is ancillary and where the police misconduct is condoned by those in higher authority, public policy considerations will point strongly in the direction of the exclusion of all evidence of the ancillary offence. Accordingly, where the police arranged the importation into Australia of heroin which was delivered to a person who had sought its importation, the illegal conduct of the police required that evidence of the person's offence be excluded on public policy grounds. Prosecutions under the Customs Act 1901 (Cth), s 233B should therefore be permanently stayed.

While amendments to the Crimes Act 1914 (Cth) now mean that it may be legal for police to be involved in the importation of prohibited goods as part of a "controlled operation", this affects the legality of what would once have constituted illegal behaviour, and not the operation of the principle that evidence derived from illegal operations can be excluded.� ��LOLoA

possession - expiation of simple cannabis offences - fines in the ACT and SA. OTHER

In the Australian Capital Territory, the Northern Territory and South Australia, where a police officer reasonably believes that a person (other than a child) has committed a simple cannabis offence, the officer may serve an expiation notice on that person. If the specified expiation fee is paid within the prescribed time and otherwise in accordance with the re levant legislation:

any liability of the person in respect of the alleged offence is deemed to be discharged;
no further proceedings shall be taken in respect of that offence;
the person will not be regarded as having been convicted of that offence; and
the person is not liable to prosecution for any other expiable offences arising out of the same incident.

Failure to serve an expiation notice in these circumstances will not invalidate a prosecution for the offence. Anything seized under any Act in connection with the alleged offence which would have been liable to forfeiture in the event of a conviction for that offence will, on expiation of it, be forfeited. HLoA

possession� - substance equipment or materials known to be used for dealing in drugs CTH

A person commits an offence if he or she has possession of:

any substance listed in Table I or II in the Annex to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; or
any equipment or materials,

with the knowledge that the substance, equipment or materials are being used or are to be used in, or for, a specified dealing in drugs that constitutes an offence against a law of the Commonwealth, a State or Territory, or a foreign country. HLoA

possession of imported drugs - person must intend to be in possession. CTH

This in turn requires that the person is aware of having custody of the substance in question, and that the person be aware that there is at least a real chance that the goods comprise or contain a narcotic drug. In interpreting s 233B(1)(c) of the Customs Act 1901 (Cth), the High Court has now ruled that: where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his [or her] custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his [or her] possession") themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required.� ��LOLoA

In the Northern Territory and Queensland, a similar result is achieved by making it an offence to possess a prescribed quantity, or by prescribing higher maximum sentences in cases where the amount possessed is higher.

In Tasmania and Victoria, a person in possession of the relevant quantity is presumed to possess the drugs for the purpose of supply, but the presumption is prima facie only, and upon the defendant producing evidence that possession was not for the purpose of supply, the prosecution must prove otherwise beyond reasonable doubt in order to sustain its case.

In New South Wales, the relevant quantity (the "traffickable quantity") is 0.6 of the "indictable quantity". This means that there are cases where the quantity of drugs will create a presumption of possession for sale, but where, if the prosecution chooses and the defendant agrees, the matter may be tried summarily, in which case the maximum penalty will be the same as that for simple possession. The following table sets out the prescribed quantities and numbers for selected drugs and plants, by jurisdiction.

Where cells are blank, no limits have been prescribed in relation to the relevant proscribed drug in the relevant jurisdiction.� ��LOLoA

Substance	ACT	NSW	NT	Qld	SA	Tas	Vic	WA
Amphetamine	2g	3g	2g	2g	2g	.5g	6g	2g
Cannabis plants-
Cannabis	100g	300g	50g	500g	100g	25g	250g	100g
Cannabis plants			5	100 if total wt <500g		5	10	25
Cannabis Resin	20g	30g	10g		20g	5g	10g	25g
Cocaine	2g	3g	2g	2g	2g	.5g	3g	2g
Diacetylmorphine/heroin	2g	3g	2g	2g	2g	.5g	3g	2g
(LSD)	.002g	.003g	.002g	.004g	.002g	.004g	.0015g	.002g
Methylamphetamine	2g	3g	2g	2g	2g	.5g	6g	2g
MDA	.5g	3g	.5g	-	.5g	-	3g	2g
MDMA (Ecstasy)	.5g	3g	.5g	2g	.5g	-	3g	2g
Morphine	2g	3g	2g	2g	2g	.5g	2g	2g
Opium	20g	30g	20g	20g	20g	5g	-	20g
Papaver bracteatum plants	-	30g	-	-	100g	75g/5	100g	25
Papaver somniferum plants	-	30g	-	-	100g	75g/5	100g	25
Phencyclidine (Angel Dust)	2g	3g	2g	.5g	2g	-	1g	.002g

possession of prohibited plant and commercial quantities of a prohibited plant NSW

�a person who has a prohibited plant in his or her possession is guilty of an offence. It is a separate offence, with higher maximum penalties, if he or she has possession of a commercial quantity of such a plant. However, in relation to any act relating to possession of such a plant, exceptions are provided for persons:

who, on prosecution, prove to the court that, having regard to all the circumstances, including their conduct during or preparatory to committing the offence, they did not know or suspect and could not reasonably have been expected to have known or suspected that the plant was a prohibited plant; or

authorised to possess the plant for scientific research, instruction, analysis or study. HLoA�

possession or cultivation can be deemed to be for sale or supply

�possession of more than a declared quantity of a prohibited drug may be deemed to be for the purpose of sale or supply or trafficking unless the contrary is proven.

� it will not necessarily apply to the whole of the drug or plant in the accused's possession but the burden of proving that some of the drug was for the presumed purpose will lie on the accused. HLoA