Fundamentals and possession
The Tasmanian Poisons Act 1971 and the Misuse of Drugs Act 2001 deal comprehensively with provisions relating to the regulation, control, and prohibition of the importation, making, refining, preparation, sale, supply, use, possession, and prescription of certain substances and plants, which for ease of reference are referred to below sometimes simply as ‘illicit drugs’.
The Acts draw a distinction between a number of categories of drugs in relation to which criminal liability may be attached, including, for example, ‘narcotic substances’, ‘prohibited substances’, ‘prohibited plants’, and so on. Clearly heroin, morphine and so on are ‘narcotic substances’. They are also ‘prohibited substances’. ‘Prohibited plants’ include for example opium, coca leaves and Indian hemp. Sometimes the definitions include the same substance, and a person charged in relation to an illegal substance or illicit drug, will need to consult the Acts or the Poisons Regulations 2018 made under the Acts.
Possession in the Tasmanian legislation does not just mean that it is on the person. The definition of possession in the Misuse of Drugs Act 2001 (Tas) (s3(3)) includes, but is not limited to where the controlled substance is:
‘on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person’s order and disposition, unless the person proves that he or she had no knowledge of the substance’.
This means that at trial, the defence must prove that they had no knowledge of the substance. The prosecution is not required to establish knowledge. This reverses the onus of proof. It is usual for the prosecution to establish the guilt of the defendant, not for the defendant to establish their innocence. It is now up to the defendant to prove lack of knowledge.
A place can include a car, a locker or anything used by the defendant. ‘Occupied by the person’ is not defined. It has been considered in the Supreme Court decision of Allison v Lowe, (1988) Tas R it appears that the question is one of fact and degree, as to whether, on the evidence, the accused can fairly be said to be the occupier of a place. An occupier can include husband and wife, a guest, even a squatter’s occupation may suffice. It is not necessary that the occupation is permanent.
Page last updated 25/07/2019