LLB180 Lecture Notes - Lecture 1: Papaver Bracteatum, Child Custody, Toshiyori
Week 1 – Drug Offences
Big picture
• What is the boundary between licit and illicit drugs?
• Why are alcohol and tobacco more legally permissible than other drugs such as
marijuana or heroin?
• Do the meanings of drugs pre-exist the criminal law or does the criminal law
contribute to the meanings of drugs?
• Are the meanings of particular drugs and their criminalization linked to the
purported deviancy of particular marginalized groups in society, and how does this
deviancy fit into broader racial, gender and other anxieties?
General principles:
• guilt id – subjective mens rea
• golde thead – P must prove all elements BRD
• ioet util poe guilt – presumption of innocence of D
Week 1 focus: how does the criminal law treat drug use, production and distribution?
Drug laws
• No roots in common law
• Legislative creations
• Legislative NSW and Commonwealth
- Drug Misuse and Trafficking Act 1985 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Criminal Code (Cth) (Chapter 9 Dangers to the Community, Part 9.1 -Serious drug
offences)
• Note: re Cth legislation, the significance of the Constitution (s 51(i)(xxi) and
international conventions
Poisons and Therapeutic Goods Ac 1966 (NSW) (CB 1083)
• Based on the Poisons List maintained by NSW Health and contains 9 schedules
• Schs 4, 8 & 9 – drugs that are likely to be abused
• The Act primarily relates to to substances in schs 2-8
• In the Act:
- Sch 4 = restricted substances
- Sch 8 = drugs of addictions
- All other drugs in the schedules are poisons
• It is a criminal offence to engage in wholesale supply of poisons or restricted
substances without a wholesalers licence (ss 9 & 11); or to engage in general supply
without being a medical professional of a type listed in this Act or without holding a
general supply licence (s 10)
Maximum penalty = 15 penalty units and/or imprisonment for 6 months, or 20
penalty units and/or two years imprisonment if the substance is a prescribed
restricted substance
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Prescribed Restricted Substances
• Prescribed restricted substances include benzodiazepines e.g Valium and Serepax,
the barbiturates and anabolic steroids (The 2008 Act cl 61 and Appendix D)
• Offences of possession or attempt to possess only apply to prescribed restricted
substances (s 16). Maximum penalty for possession = 20 penalty units and/or 6
months imprisonment unless the substance is an anabolic or androgenic steroid in
which case the imprisonment rises to 2 years
• If a person is in possession of a certain quantity then the presumption is that
possession is for the purposes of supply (s 4(1)) unless the accused rebuts the
presumption. This increases the maximum penalty to 2 years imprisonment or 20
penalty units (s 9(3)(a))
• Appendix D = quantities
• Ous of poof is o the aused ad the poseutio doest hae to sho es rea
for supply
Drugs of addiction
• Identified in sch 8 & have further restrictions for prescription
• The prescriptions that apply depend on whether the medical practitioner believes
the peso is a dug depedet peso. This eas a peso ho has
acuied… a oepoeig desie fo the otiued adiistatio of a dug of
addiction (s 27)
• Medical practitioners must have special authorisation from the Department of
Health before they can prescribe to people they believe to be addicts (ss 28-29)
• Any breach of regulations has a maximum penalty of 20 penalty units and/or two
years imprisonment (s 26)
• Any medical practitioner who prescribes in breach or without authority is exposed to
2 penalty units (ss 28 and 44)
• If the Department prohibits practitioners from possessing or supplying and they
breach this, there is a maximum penalty of 20 penalty units (s 18AA)
• Heroin cannot be provided under any circumstances
International conventions
• Hague Convention 1912
• Geneva Conventions 1925
• Geneva Conventions 1931
• Single Convention on Narcotic Drugs (1961)
• Convention on Psychotropic Substances (1971)
• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (1988) TB860
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Drug Misuse and Trafficking Act 1985 (NSW) (DMTA)
• Definition of drug defined in s 3 & Sch 1
• Prohibited drug defined in s 3 & Sch 1
• Over 350 drugs and plants listed in Schedule 1
• Oe steiodal agets added to “hedule i as pat of the oe
puh/assault ausig death efos
• Also prohibits the possession of over 80 precursor chemicals (used to make drugs)
Summary Offences (Pt 2 Div 1)
• Possession of prohibited drugs (s 10)
• Self-administration (s 12)
• Possession of equipment for administration
• Administration to others (s 13)
• Permitting someone to administer to you (s 14)
• S 21: Penalties
Section 10
10 Possession of prohibited drugs
(1) A person who has a prohibited drug in his or her possession is guilty of an offence.
Penalty: 20 penalty units or 2 years imprisonment, or both
See exceptions in sub-s (2).
See other possession offences: ss 11, 11B, 11C
What does possession mean?
• A degree of physical control of the item (AR)
• An intention to control the item (He Haw Teh) (MR)
• An intention to control a prohibited drug – inferred from proof of awareness of its
nature)
Physical Control
See Filippetti (1984) 13 A Crim R 335
• Filipetti lived in a house owned by his father and occupied by him, his fiancé, his
mother, his younger brother and another de facto couple. Police conducted a search
of the house on the basis that he was selling Buddha sticks (a cannabis product).
Fillippetti handed over a small quantity at first and admitted he used them
occasionally but after more search the police found 800 grams of Indian hemp in a
chair in the lounge room. Fillippetti denied knowledge of the drug but later
withdrew this claim
• The oitio as uashed as thee ast eough eidee to eale the ju to
rule out the possibility that the Buddha sticks were in the possession of one of the
other occupants of the house and they were in the conclusive control of the accused
See also Dib (1991) 52 A Crim R 64 (CB 1088) and Micallef (2002) 136 A Crim R 127 (CB 1089)
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Document Summary
General principles: (cid:858)guilt(cid:455) (cid:373)i(cid:374)d(cid:859) subjective mens rea (cid:858)golde(cid:374) th(cid:396)ead(cid:859) p must prove all elements brd (cid:858)i(cid:374)(cid:374)o(cid:272)e(cid:374)t u(cid:374)til p(cid:396)o(cid:448)e(cid:374) guilt(cid:455)(cid:859) presumption of innocence of d. Drug laws: no roots in common law, legislative creations, legislative nsw and commonwealth. Drug misuse and trafficking act 1985 (nsw) Poisons and therapeutic goods act 1966 (nsw) Criminal code (cth) (chapter 9 dangers to the community, part 9. 1 -serious drug offences: note: re cth legislation, the significance of the constitution (s 51(i)(xxi) and international conventions. All other drugs in the schedules are poisons. Maximum penalty = 15 penalty units and/or imprisonment for 6 months, or 20 penalty units and/or two years imprisonment if the substance is a prescribed restricted substance. Maximum penalty for possession = 20 penalty units and/or 6 months imprisonment unless the substance is an anabolic or androgenic steroid in which case the imprisonment rises to 2 years.
