Possession Of Drugs

Possession Of Drugs​

Section 10(1) Drug Misuse and Trafficking Act 1985 NSW deals with the offence of possession of prohibited drugs. A person who has a prohibited drug in his or her possession is guilty of an offence. Mere possession of prohibited drugs, even without their usage is a crime as per the above-mentioned law. The offence does not require that the drugs be on the person, it could be in their car, house, or any place in the control and custody of that person.


Prohibited drug means any substance, other than a prohibited plant as detailed in Schedule 1 of the Act.

Prohibited plant means:

(a) a cannabis plant cultivated by enhanced indoor means, or

(a1) a cannabis plant cultivated by any other means, or

(b) any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum, or

(c) any growing plant of a description specified in an order in force under subsection (2) of the Act.

What is the Penalty for the Crime?

The offence carries a maximum penalty of 2 years imprisonment and/or a fine of 20 penalty units (currently 1 penalty unit is $110.00). However, this is given only in the most extreme of cases.

What does the Prosecution have to Prove?

  1. The accused had prohibited drugs in their possession.
  2. If the drugs were found on a premises/car etc., the premises/car belonged to or was under the control of the accused.
  3. The drugs were prohibited.

Why are the Defences Available?

A. The accused was not aware that the drugs were present despite a thorough search. It is important to demonstrate that you had no prior knowledge that the drugs were in your possession.
B. Illegal search by the Police- Police have the right to search you if they can prove that they had reasonable suspicion that you had illegal drugs in your possession.
C. Non-exclusive possession of the drugs.
D. Lack of evidence to prove possession of drugs.

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