04 November 2016
Hello
My client is in court tomorrow on a drug possession charge.
Is the accused able to introduce evidence to the court to demonstrate that the substance was not a prohibited drug as charged?
Please refer me to the relevant legislative provisions.
Regards
Thank you for the question.
Possession of a prohibited drug is an offence under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW). To prove possession, the prosecution must show beyond reasonable doubt that an illegal drug was in a person's 'custody' or 'control', and the person knew that they had custody or control of a prohibited drug.
While it is always up to the prosecution to prove the offence, the accused is allowed to introduce evidence to demonstrate to the court that the substance is not an illegal drug as charged, and to create reasonable doubt that the accused was in possession of a prohibited drug. See s 40A of the Drug Misuse and Trafficking Act 1985 and s 97 of the Criminal Procedure Act 1986 (NSW).
Regards
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