It is illegal to possess any drug listed on Schedule 1 or Schedule 2 of the Drugs Misuse Regulation.
A person can be in possession of drugs, regardless of whether or not they own them. At its core, possession is really about knowledge and control of the drug in question - the prosecution must prove that a person knew of the existence of the substance and it is within their physical control.
The "occupier provisions"
Section 129(1)(c) in the Drugs Misuse Act has the effect of deeming all people who occupy a house to be in possession of any drug found in the house unless they can show that they didn't know and had no reason to suspect that the drugs were there.
The onus of proof is effectively reversed - the prosecution doesn't need to prove that the accused person knew the drugs were there. Rather, the accused person has to prove that they didn't know and couldn't have suspected that the drugs were in the house. This is a difficult onus to discharge.
This provision also applies if drugs are found in a car - all of the people in the car at the time can be charged with possessing the drugs.
Drug diversion for minor drug charges
There are two kinds of drug diversion available in Queensland.
The first is police drug diversion. If police arrest someone in possession of a small quantity of cannabis (less than 50 grams) or an implement that has been used to smoke cannabis the police officer MUST offer the offender an opportunity to attend a drug diversion assessment program instead of charging them with a criminal offence in certain circumstances. This is obviously a much better outcome than going to court as it means there is no criminal conviction for the offence whatsoever. The following conditions have to be met for the drug diversion to be offered -
- The person must not have also been arrested for another indictable offence associated with the minor drug offence - for example, burglary of a home to obtain the money to buy the drugs.
- The person must not have been offered drug diversion before.
- The person must admit to possessing the drugs or smoking implement in an electronically recorded interview.
- The person must not have any criminal history for violence.
- The person must not have been sentenced to a term of imprisonment before for drug trafficking, supplying drugs or producing drugs.
Remember, if the above conditions are met the police MUST offer drug diversion, it's not optional!
The second type is court ordered drug diversion. This type of drug diversion is available to people who commit minor drug crimes and have never had any kind of drug diversion before, or have had police or court drug diversion once before. Court ordered drug diversion is available for a much wider range of minor drug offences, including possessing small quantities of schedule 1 drugs like cocaine, heroin, ecstasy and speed.
If a person is eligible for court ordered drug diversion and the Magistrate thinks it is appropriate, they are sentenced to a good behaviour bond that includes a condition that they attend a Drug Assessment and Education Session. No conviction is recorded.
You can read more about court ordered drug diversion here.
Possessing drugs for personal use?
In Queensland, it is illegal to possess dangerous drugs even in small quantities and for your own personal use. There are strict laws surrounding drug offences and it is important to understand how the law operates due to the broad definition of possession. Unfortunately, possessing an illegal drug is not always associated with owning it.
You do not have to be the owner of the drug but simply in possession of it to commit a criminal offence. For example, two friends attended a festival. One friend agreed to mind a bag of ecstasy pills for a few minutes. That conduct would be deemed to be in possession of dangerous drugs and subsequently be committing a criminal offence. The same would apply in circumstances where you were the occupier of a house and an illegal drug was found. If a person merely has knowledge of the drug in a house, it is enough to be charged by police.
Remember that you can still be charged with possession of a dangerous drug even if you did not buy the drug/s, use them or they belonged to someone else.
There are defences available to persons charged with drug possession. We recommend seeking legal advice to discuss the circumstances of your case and potential defences that may be applicable.
What is personal use?
In Queensland, possessing dangerous drugs for personal use means that the drugs were to be used by the owner and were not intended to be supplied or trafficked. The use of illegal drugs for a recreational and/or personal use will still constitute a criminal offence and does not amount to a defence.
Generally, the quantity of the drug that is found in your possession will determine whether the level of offending (i.e. commercial verus personal use). If you are charged with possessing a small amount of drugs, your matter will be dealt with in the Magistrates Court. If you are charged with a larger quantity of drugs, the prosecution may allege that you had a commercial purpose (i.e. intended to make a profit from the drugs) and your matter will be dealt with in the District or Supreme Court.
There can be genuine grounds for possessing cannabis for medical reasons. The Queensland government controls treatment with cannabis to ensure that procedures and processes are conducted lawfully. Medicinal cannabis is currently very limited and only provided in strict circumstances.
Medicinal cannabis is only legal in Queensland if it has been prescribed by a doctor with the necessary government approvals. If the cannabis is not being held in your possession for personal use lawfully, it will constitute a criminal offence.
Will I receive a recorded conviction?
In general, the courts have a discretion about whether to record a conviction for a first-time minor drug possession offence. This is because a drug conviction may have a significant impact in your life, including for employment, travel, insurance and other areas.
If you have been previously convicted of a drug or other offence, then the risk of a recorded conviction is higher.
In certain circumstances, you may be required to disclose that you were charged with and/or convicted of a drugs offence even if no conviction was recorded. We strongly recommend that you seek legal advice about whether you fall into this category.
Will I go to jail?
The penalties for drug possession offences will vary depending on the type of drug, the nature of any previous conviction/s, when they occurred, and the quantity of drugs involved. You are at risk of receiving a higher penalty than a first-time minor drug possession offence if you are repeat offender. We strongly recommend seeking legal advice if this is not your first offence.
Do I need a criminal lawyer for a drug charge?
In our experience, people often achieve a better outcome when they are legally represented (or have at least obtained legal advice).
There are some situations where getting the best outcome may be particularly important.
People are often surprised to learn that a drugs conviction can affect their career prospects. If you work for the government or are in a professional occupation, you may be required to disclose a conviction to your employer or other professional bodies. If that may apply to you, getting early legal advice is crucial.
We also strongly recommend that you seek legal advice if you are a repeat offender or if you need extra support or referrals to other experts in relation to your drug use. Early intervention and legal advice can hugely affect the outcome.
Going to court can be an extremely stressful experience, especially if you have never been in trouble with the law before. Having an experienced advocate by your side can provide reassurance and peace of mind. It is ultimately a personal decision whether to obtain legal representation.