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The most serious offences in the Misuse of Drugs Act relate to manufacturing, cultivating, selling, and trafficking and supplying controlled substances, including ‘precursors’. Precursors are substances known to be used in the manufacture of illicit drugs; their possession and manufacture is itself a crime. These offences are indictable offences tried before a judge and jury in the Supreme Court. A person convicted is guilty of a crime and liable to punishment of a term of imprisonment for up to 21 years and/or fined. The Misuse of Drugs Act also contains so called minor offences (triable summarily in the Magistrates Court) for the manufacture and possession of controlled substances and controlled plants, and the cultivation of controlled plants, which have maximum penalties of 50 penalty units and or imprisonment for up to two years. These penalties apply where the amount in question is less than the ‘trafficable quantity’. The differing amounts for various drugs and prohibited plants trafficable quantity are contained in Part 2 and Part 3 of Schedule 1 of the Misuse of Drugs Act.

The definitions of ‘sell’ and ‘supply’ are extremely wide. ‘Sell’ includes offering or exposing for sale; keeping or having in possession for sale; barter or exchange; delivering or agreeing to sell; sending, forwarding, delivering or receiving for sale; and authorising, directing, causing, permitting, or suffering any of those acts or things to be done. ‘Supply’ includes offering or agreeing to supply a substance, administering it by any means.

A person found in possession of an illicit drug who states that they intended to supply or sell the drug the following day, could be charged even though at the time they still retained possession.
Of extreme significance in relation to these offences are deeming provisions in relation to the possession of controlled substances, plants and precursors. For example, in relation to the cultivation of a prohibited plant, the Misuse of Drugs Act, section 7 provides as follows: ‘If it is proved in proceedings for an offence under (this section) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of evidence to the contrary, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence’.

Similar sections are contained in relation to manufacturing of controlled substances. That is, if you have in your possession an amount greater than the trafficable quantity, you have the burden of proof in establishing that you did not possess the drugs for the purpose of sale, that is trafficking.

Prescribed quantities in the Schedules include:

  • Amphetamine: 25g
  • Cocaine: 25g
  • Poppy plant material: 100g/500 plants
  • Heroin: 25g/20 packages
  • Cannabis: 1kg/20plants/20 packages
  • Cannabis Resin/oil: 25g

Thus if a person has, for example, 0.4 grams of heroin in their possession they cannot be subject to the heavy penalties provided by section 12 without some evidence additional to possession alone pointing to the offence. If they have 26g, they may be deemed to be guilty of sale, supply or trafficking, if they fail to satisfy a jury that they had the heroin for some other purpose (normally for their own use).

It does not seem true however, to say that this section reverses the onus of proof as does section 3(3). At the end of the day, the jury must still be satisfied beyond reasonable doubt that a crime has been committed. Section 3(3) applies to summary offences punishable by a magistrate in the Court of Petty Sessions only. However, it is difficult to see how an accused could raise a reasonable doubt as to whether they are guilty of selling, for example, without giving evidence. This is contrary to the usual rule in criminal trials, which is that a person is not required to prove their innocence.

The definition of sale and supply under the Act is perhaps broad enough to catch even those who ‘offer to supply an illicit drug’ when in fact they have nothing at all to supply. The mere offer may be enough to make that person liable to the same penalties as a supplier.

'Traffic’ is defined in section 3 of the Misuse of Drugs Act. It includes to sell the substance; to prepare the substance for supply with the intention of selling it or the belief that another person intends to sell it; and to transport the substance with the intention to sell it; to guard or conceal the substance; and to possess the substance with the intention of selling it. It is the playing of any part in the distribution from manufacturer to the ultimate consumer.

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