Critical Elements Required to Prove Constructive Possession of an Illegal or a Controlled Substance

Posted on: 9 December 2021

Possessing prohibited drugs, such as amphetamines, cannabis (marijuana), ecstasy (MDMA), and heroin, is considered a criminal offence. Given that drug laws in Australia are fairly complex, the chances are high that investigating officers could charge you with constructive possession. It is why you must hire an experienced criminal lawyer to argue your innocence. A criminal lawyer understands that the burden of proof in constructive possession lies with a prosecutor. This article highlights a few crucial elements required to prove constructive possession of a controlled substance.

Item is Illegal or a Controlled Substance

The first thing a lawyer will ask you to tell them is precisely what you had when you were arrested. Notably, not every drug or substance is illegal or controlled; therefore, a prosecutor must give evidence showing that the items you had at the time of the arrest were illicit or controlled. Usually, criminal lawyers refer to the Poisons Standard, a legislative document outlining how a substance is restricted. The Therapeutic Goods Administration updates the document regularly and must consider public input. Therefore, if you had a controlled drug but have authorisation for it, a prosecutor will find it difficult to charge you.

Knowledge of Possession

A prosecutor should also prove that you knew about the drugs in your possession when officers apprehended you. The possession could occur anywhere, including in your home, a friend's house, at school or in a car. If a prosecutor's evidence supports the claim, the chances are high that you will be going to prison. It is the reason you must be honest with your lawyer since they can help you fight the evidence presented by a prosecutor. For instance, if police officers pulled you over on a highway and found a bag full of amphetamines, they could claim that you knew the drugs were in the trunk. However, a lawyer could argue that you had borrowed the car from a friend to run a few errands and did not know that the drugs were in the trunk.

Intent to Distribute 

When police officers charge you with possession of an illegal or controlled substance with intent to distribute it, you should not think twice about calling a lawyer. Your defence lawyer could find a way to wiggle you out of such a situation, but circumstances may dictate how they approach your case. For example, your uncle could give you a bag pack of drugs to deliver to their friend's house. If you are arrested in the process and charged with 'possession with intent to distribute,' your lawyer can argue that you did not know the contents of the bag or the recipient. The argument forces a prosecutor to prove, beyond a reasonable doubt, that you knew what you were doing.

For more information, reach out to a criminal lawyer near you.