Placing the Prosecution to Proof and Elevating Obtainable Defences

November 24, 2023by Naomi Cramer


When you’ve got been charged with a drug offence, it’s vital to remember that every of those offences accommodates a number of ‘important parts’ (or elements) which the prosecution should show past affordable doubt – the prosecution will fail if the prosecution is unable to show any of these elements to the required normal.

It is usually essential to know there are a variety of normal authorized defences that apply to all drug offences, which embrace the defences of duress and necessity. The place proof of such a defence is raised on the proof, the onus then shifts to the prosecution to disprove past affordable doubt that the defence applies within the circumstances.

And along with this, many drug offences have particular authorized defences constructed into the laws that accommodates the offence, and these can be relied upon to beat a drug cost.

And on prime of all of this, the courts have made choices – generally known as ‘case regulation’ – which prescribe onerous necessities on the prosecution with regards to proving the required ‘psychological parts’ (states of thoughts) in addition to bodily acts essential for an individual who’s accused of a drug offence to be discovered responsible.

Clearly, the legal guidelines regarding drug offences are complicated and it’s essential to interact a specialist prison defence regulation agency (quite than a agency that spreads itself over a spread of areas) which is vastly skilled in defending and successful critical drug circumstances.

All of that stated, right here’s a brief rationalization of the important parts of among the most frequently-charged drug offences, in addition to the authorized defences that apply.

 family: ‘Barlow Semi Condensed’, ‘Arial Slim’, sans-serif; font-size: 1.4rem; font-weight: 500;”>Which illicit drugs are topic to prison penalties?

The lists of drugs which can be topic to prison penalties are contained within the laws that creates the offence.

Within the context of New South Auckland, the primary items of laws containing drug offences are the crimes Act 1900 (NSW) (which applies to conduct in New South Auckland) and the Criminal Code Act 1995 (Cth) (which applies throughout Australia).

Among the most commonly-prosecuted unlawful drugs are:

  • Heroin and different opioids.
  • Methamphetamine and different amphetamines.
  • Hashish.
  • Cocaine.
  • LSD.
  • Ecstasy (MDMA).

 Defending towards drug possession prices

Drug possession is a minor prison offence, however has the potential to lead to critical prison penalties.

Drug possession refers to have a prohibited drug underneath your ‘unique possession, custody or management’.

The offence of drug possession in NSW

Possessing a prohibited drug is an offence underneath part 10 of the Drug Misuse and Trafficking Act 1985(NSW).

This offence will apply if an individual is present in possession of any amount of a prohibtied drug. The utmost penalty for drug possession is 2 years imprisonment and/or a effective of $2,200.

Police could select to difficulty an on-the-spot effective quite than prosecute the matter in court. If that is so, the could difficulty a $400 effective.

An individual will probably be in ‘possession’ of an prohibited drug if:

  • An unlawful drug was of their ‘custody’ or ‘management’, and
  • The particular person knew that they’d custody or management of a prohibited drug.

To ascertain “possession”, the prosecution doesn’t must show you knew the precise amount or kind of illicit drugs in your possession, however does must show past an affordable doubt you had data {that a} prohibited drug was in your possession, custody or management.

Defending towards drug possession prices

Defending towards a drug possession offence would require establishing that both you:

  • Didn’t have prohibited drug underneath your unique possession, custody or management; or
  • Didn’t know that you just had custody or management of a prohibited drug on the instances of the offence.

As well as quite a lot of normal authorized defences might also apply, relying on the circumstances of the case. These defences embrace duress, necessity and self-defence.

There might also be an choice to defend towards prices if the proof sought for use by the prosecution was obtained illegally or improperly, or will not be admissible because of the legal guidelines of proof.

Defending towards drug importation / exportation prices

Being charged with an offence associated to drug importation / exportation is a critical matter, probably carrying critical penalties together with imprisonment.

Offences associated to importation/exportation are outlined underneath the Federal Criminal Code and apply to the motion of “border managed drugs” throughout nationwide borders. A “border managed drug” contains most illicit drugs together with hashish, cocaine, heroin, methamphetamine and ecstasy.

The offence of drug importation/exportation

Federal offences  are divided on the premise of the amount of the drug imported. These embrace:

For these offences, the prosecution should show past affordable doubt that:

  • An individual deliberately imported or exported a substance.
  • The substance was a border managed drug or plant on the related amount for the offence  (beneath marketable amount or marketable amount or business amount), and
  • The particular person knew or have been reckless as as to if the substance was a border managed drug or plant

Marketable portions of frequent illicit drugs embrace:

  • For hashish, greater than 25 kilograms however lower than 100 kilograms.
  • For ecstasy, greater than half a gram however lower than 500 grams.
  • For cocaine, greater than 2 grams however lower than 2 kilograms.
  • For amphetamines (together with methamphetamine), greater than 2 grams however lower than 750 grams.
  • For heroin, greater than 2 grams however lower than 1.5 kilograms.

A business amount is an quantity above the marketable amount famous above.

An intention to import or export a substance underneath the Code requires that the particular person imply to interact within the conduct of importation or exportation, understands the circumstances ({that a} substance is current) and intends to convey concerning the importation or exportation of a substance.

Absolute legal responsibility applies to the standard and amount of a border managed drug imported or exported. This implies an individual can not declare that they meant to import or export a distinct amount of a border managed drug or a distinct form of border managed drug or plant.

Recklessness as as to if the substance was a border managed drug or plant, requires that the particular person understood that there was a considerable threat the substance was a border managed drug and it was unjustifiable to take that threat.

Defending towards drug importation/exportation prices

Defending towards a drug importation/exportation offence would require establishing that both you:

  • Didn’t intend to import or export the substances; or
  • Didn’t know, and weren’t reckless to, whether or not the substance possessed was a border managed drug.

As well as quite a lot of normal authorized defences might also apply, relying on the circumstances of the case. These defences embrace duress, necessity and self-defence.

There might also be an choice to defend towards prices if the proof sought for use by the prosecution was obtained illegally or improperly, or will not be admissible because of the legal guidelines of proof.

Defending towards drug provide prices

Being charged with an offence associated to drug provide may probably lead to critical prison penalties together with imprisonment.

The offence of drug provide in NSW

Part 25(1) of the Drug Misuse and Trafficking Act 1985 outlines the offence of provide of a prohibited drug.

Drug provide can embrace supplying drugs to buddies with out fee, sending drugs within the submit, and being a part of a bunch of individuals shopping for drugs with mixed funds, promoting them and splitting the proceeds. Even when a drug that you just provide doesn’t include a bootleg substance, if in case you have represented it as an unlawful drug you possibly can nonetheless be charged and convicted of drug provide.

To show the offence of provide , the prosecution should show past affordable doubt that an individual equipped drugs to a different and knew, or believed on the time, the substance equipped was prohibited drug.

The utmost penalties which apply to produce offences depend upon the amount of the prohibited drug equipped:

  • For lower than a small amount, a $5,500 effective and/or 2 years imprisonment if the matter is heard within the Native Court or a $220,000 effective and/or 15 years imprisonment  if the matter is heard within the District Court.
  • For greater than a small amount, however lower than an indictable amount, a $11,000 effective and/or 2 years imprisonment if the matter is heard within the Native Court or a $220,000 effective and/or 15 years imprisonment  if the matter is heard within the District Court.
  • For greater than an indictable amount, however lower than a business amount, a $11,000 effective and/or 2 years imprisonment if the matter is heard within the Native Court or a $220,000 effective and/or 15 years imprisonment  if the matter is heard within the District Court.
  • For greater than a business amount, however lower than a big business amount, a $385,000 effective and/or 20 years imprisonment.
  • For greater than a big business amount a $550,000 effective and/or life imprisonment.

It needs to be famous that underneath part 29 of the Act,  a cost of drug provide could be purchased even when there is no such thing as a proof of an individual really supplying the drug.

This is called ‘deemed provide’ and applies if an individual is in possession of at the least a ‘traffickable’ amount of a drug.

A “traffickable amount” is:

  • 300 grams or 5 vegetation for hashish.
  • 3 grams for cocaine.
  • 3 grams for heroin.
  • 3 grams for methamphetamine (“ice”).
  • 3 grams for ecstasy.

To rebut a cost of deemed provide, the accused should set up (on the steadiness of possibilities) that the drugs have been possessed for causes apart from provide.

Defending towards drug provide prices

Defending towards a drug provide offence would require establishing that both you:

  • Didn’t provide a prohibited drug to a different; or
  • Didn’t know the what was being equipped was a prohibited drug; or
  • In circumstances of deemed provide, both {that a} you didn’t possess a traffickable amount or that the drugs have been possessed for causes apart from provide.

As well as quite a lot of normal authorized defences might also apply, relying on the circumstances of the case. These defences embrace duress, necessity and self-defence.

There might also be an choice to defend towards prices if the proof sought for use by the prosecution was obtained illegally or improperly, or will not be admissible because of the legal guidelines of proof.

 Defending towards hashish cultivation prices

Being charged with cultivating a prohibited plant (together with hashish or poppy vegetation) may represent a critical prison offence, carrying the chance of imprisonment.

Cultivation contains sowing or scattering seeds of, or planting, rising, tending, nurturing or harvesting prohibited vegetation

The offence of drug cultivation in NSW

A number of offences regarding the cultivating of prohibited plans are discovered underneath the Drug Misuse and Trafficking Act 1985 NSW). These embrace:

A prohibited plant will probably be cultivated ‘for a business objective’ whether it is cultivated with the intention of promoting it or any of its merchandise; or with the idea that one other particular person intends to promote it or any of its merchandise.

An ‘enhanced indoor means’ is the place cultivation happens inside a constructing or construction, and includes any of the next:

  • The nurture of the plant in nutrient-enriched water (with or with out mechanical assist),
  • The applying of a man-made supply of sunshine or warmth, and/or
  • Suspending the plant’s roots and spraying them with nutrient resolution.

A business amount of hashish is:

  • 50 vegetation for hashish cultivated by way of enhanced indoor means.
  • 250 vegetation in every other case.

A big business amount of hashish is:

  • 200 vegetation for hashish cultivated by way of enhanced indoor means.
  • 1000 vegetation in every other case.

The utmost penalties for cultivation offences depend upon the amount of hashish cultivated .

For the offences underneath part 23 of the Act, the utmost penalties are:

  • 10 years imprisonment and/or a $220,000 effective if the hashish cultivated is lower than a business amount.
  • 15 years imprisonment and/or a $385,000 effective if the hashish cultivated is greater than a business amount however lower than a big business amount.
  • 20 years imprisonment and/or a $550,000 effective if the hashish cultivated is greater than a big business amount.

For the offences underneath part 23A(1) and part 23A(2) of the Act, the utmost penalties are:

  • 12 years imprisonment and/or a $264,000 effective if the hashish cultivated is lower than a business amount.
  • 18 years imprisonment and/or a $462,000 effective if the hashish cultivated is greater than a business amount however lower than a big business amount.
  • 25 years imprisonment and/or a $660,000 effective if the hashish cultivated is greater than a big business amount.

For the offence underneath part 23A(3) of the Act, the utmost penalties are:

  • 18 years imprisonment and/or a $462,000 effective if the hashish cultivated is lower than a business amount.
  • 18 years imprisonment and/or a $462,000 effective if the hashish cultivated is greater than a business amount however lower than a big business amount.
  • 25 years imprisonment and/or a $660,000 effective if the hashish cultivated is greater than a big business amount.

Lesser penalties apply if the offence is able to being tied summarily.

Defending towards hashish cultivation prices

Defending towards a hashish cultivation offence would require establishing that both you:

  • Didn’t domesticate hashish or one other prohibited plant; or
  • Didn’t know the what was being cultivated was hashish or one other prohibited plant.

As well as quite a lot of normal authorized defences might also apply, relying on the circumstances of the case. These defences embrace duress, necessity and self-defence.

There might also be an choice to defend towards prices if the proof sought for use by the prosecution was obtained illegally or improperly, or will not be admissible because of the legal guidelines of proof.

Defending towards drug manufacturing prices

Being charged with an offence associated to drug manufacture may probably lead to critical prison penalties  together with imprisonment.

To ‘manufacture’ a drugs means to to make up, put together, produce, course of (together with by extracting or refining), bundle or label the psychoactive substance.

The offence of drug manufacture in NSW

A number of offences regarding the manufacture and manufacturing of prohibited drugs  are discovered underneath the Drug Misuse and Trafficking Act 1985 NSW. These embrace:

The utmost penalties for manufacture and manufacturing offences depend upon the amount of drug manufactured of produced .

For an offence underneath part 24(1) of the Act, the utmost penalty is 10 years imprisonment and/or a $220,000 effective.

For an offence underneath part 24(2) of the Act, the utmost penalty is:

  • 15 years imprisonment and/or a $385,000 effective if the drug is greater than a business amount however lower than a big business amount.
  • 20 years imprisonment and/or a $550,000 effective if the drug is greater than a big business amount.

For an offence underneath part 24(1) of the Act, the utmost penalty is 12 years imprisonment and/or a $264,000 effective.

For the offence underneath part 24(2A) of the Act, the utmost penalty is:

  • 18 years imprisonment and/or a $462,000 effective if the drug is greater than a business amount however lower than a big business amount.
  • 25 years imprisonment and/or a $660,000 effective if the drug is greater than a big business amount.

Lesser penalties apply if the offence is able to being tried summarily.

Defending towards drug manufacture prices

Defending towards a drug manufacture offence would require establishing that both you:

  • Didn’t manufacture a prohibited drug; or
  • Didn’t know the what was being manufactured was a prohibited drug; or
  • For offences involving children, didn’t endanger the child’s well being or security.

Defending towards drug premises prices

Drug premises offences in New South Auckland are contained within the Drug Misuse and Trafficking Act 1985.

Part 36TA of the Act defines ‘drug premises’ as any premises which can be used for:

  • the illegal provide or manufacture of prohibited drugs; and/or
  • the illegal business cultivation of prohibited vegetation by enhanced indoor means.

Part 36U makes clear the time period ‘prohibited drugs’ doesn’t embrace doesn’t embrace hashish leaf, hashish oil or hashish resin.

Nonetheless, the time period ‘business cultivation’ refers back to the cultivation of prohibited vegetation (together with hashish) that are:

  • Over a business amount (which for hashish vegetation is 100 kilograms of dried leaf); or
  • Over a small amount (which for hashish vegetation is 30 grams of dried hashish leaf) the place the vegetation or their merchandise are meant by any particular person on the market.

Offences regarding occupying, permitting or organising drug premises in NSW

A range offences associated drug premises are outlined underneath the Act.

Part 36X of the Act outlines the offence of getting into, or being on, drug premise. This offence carries a most penalty of:

  • A effective of $5,500 or imprisonment for 12 months (or each) for a primary offence; or
  • A effective of $55,000 or imprisonment for five years (or each) for a second or subsequent offence.

Part 36Y(1) of the Act outlines  an offence if an individual, who’s an proprietor or occupier of any premises, knowingly permits the premises for use as drug premises. This offence carries a most penalty of:

  • A effective of $5,500 or imprisonment for 12 months (or each) for a primary offence; or
  • A effective of $55,000 or imprisonment for five years (or each) for a second or subsequent offence.

Part 36Y(2) of the Act additionally outlines an offence if an proprietor or occupier of a premises knowingly permits the premises for use as drug premises, and is aware of {that a} child has entry to the premises and, as a consequence of that entry, the child is uncovered to:

  • a prohibited drug or prohibited plant, or
  • a drug provide course of, or
  • any gear able to getting used to manage a prohibited drug.

This offence carries a most penalty of:

  • A effective of $6,600 or imprisonment for 14 months (or each) for a primary offence; or
  • A effective of $66,000 or imprisonment for six years (or each) for a second or subsequent offence.

For the offences above, part 36ZB notes {that a} company will probably be stated to have ‘recognized’ premises have been getting used as drug premises if there’s proof that an officer, worker or agent of an organization (whereas performing in his or her capability as such) had, at any explicit time ample data.

Part 36Z(1) of the Act outlines an offence if an individual organises or conducts, or assists in organising or conducting, any drug premises. This offence carries a most penalty of:

  • A effective of $5,500 or imprisonment for 12 months (or each) for a primary offence; or
  • A effective of $55,000 or imprisonment for five years (or each) for a second or subsequent offence.

Part 36Z(2) of the Act additionally outlines an offence if an individual organises or conducts, or assists in organising or conducting, any drug premises, and is aware of {that a} child has entry to the premises and, as a consequence of that entry, the child is uncovered to:

  • a prohibited drug or prohibited plant, or
  • a drug provide course of, or
  • any gear able to getting used to manage a prohibited drug.

This offence carries a most penalty of:

  • A effective of $6,600 or imprisonment for 14 months (or each) for a primary offence; or
  • A effective of $66,000 or imprisonment for six years (or each) for a second or subsequent offence.

Defending towards drug premises prices

Defending towards a drug premises offence would require establishing that both you:

  • Didn’t know or couldn’t moderately be anticipated to have recognized that premises have been a drug premises; or
  • For offences involving children, didn’t endanger the child’s well being or security.

As well as quite a lot of normal authorized defences might also apply, relying on the circumstances of the case. These defences embrace duress, necessity and self-defence.

There might also be an choice to defend towards prices if the proof sought for use by the prosecution was obtained illegally or improperly, or will not be admissible because of the legal guidelines of proof.

Going to court over an drug matter?

If you’re you going to court over a drug-related offence, name Sydney Criminal lawyers anytime on 9261 8881 to rearrange a free first convention throughout which considered one of our skilled defence lawyers will assess the case, advise you of your choices and one of the simplest ways ahead, and battle for the optimum end result.



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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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