Possession of Drugs in NSW
In New South Wales, the maximum penalty for drug possession is 2 years’ imprisonment and/or a fine of $2,200. While this may sound severe, the actual outcome depends on the circumstances of your case, the type and quantity of the drug, and whether you have prior convictions.
Even if you plead guilty, a specialist drug defence lawyer can often help you avoid a criminal record altogether. In some cases, the court may dismiss the matter under section 10, or impose a conditional release order without conviction, allowing you to move forward without the burden of a criminal history.
At Lamont Law, we have extensive experience representing clients charged with drug possession offences. Our lawyers know how to challenge the prosecution’s case, negotiate with police and prosecutors, and present persuasive submissions to the court. We are committed to protecting your rights and securing the most favourable outcome possible.
What is “Possession” in Drug Offence Cases?
The legal definition of possession in relation to prohibited drugs is broad and carefully applied by the courts. For the prosecution to prove possession, it must establish that the accused had exclusive physical custody or control of the substance, and that this custody or control was exercised knowingly. In other words, the accused must have been aware of the existence and nature of the drug, and must have retained control over it to the exclusion of all others.
Possession is frequently established when a drug is found in the accused’s home, vehicle, or on their person. The principle was explained in He Kaw v The Queen (1985) 157 CLR 523, where the High Court confirmed that possession requires both physical control and knowledge of the substance.
However, where a prohibited drug is discovered in a shared or common area — such as the living room of a shared house or in a car with multiple passengers — the court cannot automatically infer exclusive possession by one individual. As established in R v Fiipetti (1978) 13 A Crim R 335, mere proximity to a drug is not enough; the prosecution must prove beyond reasonable doubt that the accused had control of the substance to the exclusion of others.
In situations where more than one person has control over the location or the substance itself, the prosecution may argue joint exclusive possession. This principle was discussed in R v Dib (1991) 52 A Crim 61, where it was recognised that multiple occupants of a home or vehicle may together exercise control over a drug. In such cases, the prosecution must prove that the defendants jointly maintained custody or control of the substance to the exclusion of all others.
Ultimately, proving possession involves a close analysis of both the circumstances in which the drug was found and the accused’s knowledge and intent.
