6 (1)(f) Flashcards
Definition of possession
Proving possession of controlled drugs requires two separate elements.
Physical and Mental elements.
Physical elements:
This element requires physical custody or control over the drugs. This can be actual or potential.
Actual custody or control:
Means that the person actually has the drug in their custody or control.
Example: in their pocket or in a vehicle they have keys for.
Potential custody or control:
Things subject to his control which is in the custody of another.
Example: if a person is storing their drugs at a friends house.
Mental element:
The mental element requires a combination of knowledge and intention.
Knowledge:
Knowledge requires the defendant had knowledge in the sense of an awareness by the accused that the substance is in his possession and is a controlled drug
although he need not know it’s exact nature.
Intention:
A willingness to possess or intended to exercise possession.
What are the components that provide knowledge of existence?
The defendant must be aware that they possess the substance.
The defendant identifies the substance as a controlled drug,
Even if there is no substance to be analysed to prove their assertion.
Physical custody presumes knowledge unless otherwise proven.
What are the components that provide the knowledge and intent?
In considering whether a person knows the qualities of a substance you need to establish that they:
Know they have the substance
Know the substance’s nature or qualities
Intended to possess the substance
Definition of Knowledge of qualities
It is assumed that the person knows the nature of their actions
unless they produce evidence that raises reasonable doubt about their guilty intent.
Example:
When a mother is cultivating her sons cannabis plants thinking they were house plants. She is not aware of the illegal nature and so cannot criminally intend to take advantage of possessing them.
Defence: Lack of knowledge
A genuine lack of awareness would exclude knowing possession and thereby intent.
A person cannot knowingly be in possession of an article which he mistakenly but honestly believes he does not possess.
Defence: lack of knowledge caused by memory lapse
It is essential to establish whether the defendants memory loss was complete
Or merely that knowledge of the seeds was not always at the forefront of the defendants mind.
Martin v Police
Seeds in boots
CL: R v Cox
Proof of possession
Possession involves two elements.
The physical element is actual or potential physical custody or control.
The second the mental element is a combination of knowledge and intention:
Knowledge in the sense of an awareness by the accused that the substance is in his possession;
And an intention to exercise possession.
Definition of control
To control something means to exercise authoritative or dominating influence of command over it.
A person can control an item that is not in their physical custody and
Conversely can have something in their physical custody that they have no control over.
Example: someone slips something into another persons pocket without his knowledge.
Definition of Joint Possession
Where more than one person has access to drugs of saleable quantity.
However there must be a shared intention to sell the drugs.
Definition of Attempted Possession
It is an offence to attempt to gain possession of a drug
Including someone obtaining something innocuous in the mistaken belief that it is a drug.
Example:
R v Jay
Hedge clippings
What are the four points that crown must prove with possession in drugs cases?
Knowledge that the drug exists
Knowledge that it is a controlled drug
Actual physical control or some degree of control over it
An intention to possess it
What additional evidence do we need to prove intent in drugs cases?
Admissions
Circumstantial evidence
I.e. packaging, scales, cash, tick lists
The statutory presumption under section 6(6)
What is the statutory presumption under section 6(6)?
This section creates a presumption of law that if a person has possession of a specified amount of any drug
That person will be presumed to have that drug for one of the purposes set out in
6(1)(c), (d) or (e)
Unless they can prove otherwise.
A person in possession of less than the amounts specified in 6(1)(a) to (f)
Can still be charged with possession of supply if other circumstances provide good cause to suspect
Examples:
- The way in which drugs were packaged, -suspects admissions
- Presence of large amounts of money
- Ticklists showing sales
What is a defence to the presumption of possession?
The presumption may be rebutted if the person is able to prove
On the balance of probabilities
That they did not intend to commit a dealing offence
Not withstanding the amount.
Example:
Defence might argue that the suspect was heavily addicted and required large amounts for personal use.
What did Police v Jay hold in regards to Attempted Possession?
The respondent had criminal intent to attempt to commit an offence
and did an act for the purpose of accomplishing that intent.
