The charge of possession of a prohibited drug is found under s 10 of the Drugs Misuse and Trafficking Act 1985. Whilst the act does not define possession, a definition has evolved through the common law. Possession for the purposes of the DMTA is taken to mean an offender, to their knowledge, has exclusive physical control over a drug and has an intent to control it. An intent is usually found through an awareness of its existence (see He Kaw Teh).
Possession is a summary offence, however, s 29 provides that a person/s with a quantity of a prohibited drug that is not less than the trafficable quantity will be deemed to have possession for the purposes of supply – this becomes an indictable offence.
It is also possible for 2 or more persons to have joint possession of a drug. The essential elements are the same, however, the prosecution must prove that the intention of each alleged offender is to maintain exclusive control over the substance. It is important to mention that s 7 deemed possession extended to joint possession.
The most important principle in drug cases is that of Filippetti. It states that in order to prove exclusive physical control the prosecution must eliminate the possibility that the drugs were in the possession of another.
This becomes a contentious issue when the drugs are found, for example, in common areas or in cars. It can become difficult for the prosecution to prove that an individual had exclusive physical control over a drug, or even knowledge of the drug’s existence, if it is found in a common area.
Filippetti is also an important case in the context of joint possession. It is possible for the Crown to argue that drugs found in common areas are in joint possession if they make out the elements that all offenders had exclusive physical control and intent. However, Filippetti operates to limit the Crown’s ability to lay the charges of possession of drugs that are found in common areas on a single person.