Drug offences

The laws on drug use cast an ever wider net. We have experience in cases of: Importing Border Controlled Drugs, Trafficking, Production, Supply, Possession of Dangerous Drugs, Possession of Relevant Substances and Relevant Things.


The laws on drug use cast an ever wider net. We have experience in cases of:

Importing controlled drugs into Australia is a federal (or Commonwealth) offence. To prove an offence under federal criminal law, the prosecutor must prove both the physical elements of the offence (that is, the things that were done) and the fault elements (the offender’s state of mind).

Importing means generally bringing goods into Australia. Between 1 January 1997[1] and 20 February 2010[2] the definition of importing was narrower. It now includes to “deal with the substance in connection with its importation.”[3]


The physical elements of the importing offence are:
    1. importing a substance; and,
    2. the substance is a border controlled drug.[4]


The fault elements are:
  1. for the physical element of importing a substance – intention;[5] and,
  2. for the physical element that the substance was a border controlled drug – recklessness.[6]


However, if a person is accused of aiding, abetting, counselling or procuring the commission of the offence then the physical elements are that:
  1. the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; AND
  2. the offence must have been committed by the other person.[7]


For the physical elements of conduct that in fact aided, abetted, counselled or procured, the fault element is that the person must either:
  1. have intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; OR
  2. have intended that his conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed;[8] OR
  3. have had the state of mind required by a special liability provision in the principal offence.[9]

The fault element must exist at the same time as the physical element.[10]



 The maximum sentence for importing a commercial quantity of a border controlled drug is life imprisonment.

Examples of sentences imposed for this offence were discussed in R v Handlen & Paddison[11]from [123] to [152]. In that case the Court of Appeal upheld Mr Handlen’s sentence of life imprisonment with a non-parole period of 22 years, and Mr Paddison’s sentence of 22 years with a non-parole period of 14 and a half years.

[11] R v Handlen & Paddison [2010] QCA 371

[1] Criminal Code 1995 (Cth) came into force 1 January 1997

[2] Schedule 9 Crimes Legislation Amendment (Serious and Organised Crime) Act (No.2) 2010 (Act No.4 of 2010)

[3] The effect of the amendment is to over-rule the narrow interpretation applied in R v Campbell [2008] NSWCCA 214 at [140]-[145]

[4] Section 307.1 Criminal Code 1995 (Cth)

[5] Section 5.6(1) Criminal Code 1995 (Cth), unless importing is characterised as a physical element that consists of a circumstance or result, in which case the fault element is recklessness; s.5.6(2).

[6] Section 307.1(2) Criminal Code 1995 (Cth)

[7] Section 11.2(2) Criminal Code 1995 (Cth)

[8] Section 11.2(3) Criminal Code 1995 (Cth)

[9] Section 11.2(6) Criminal Code 1995 (Cth)

[10] R v Campbell [2008] NSWCCA 214 at [44]

The offence of trafficking in dangerous drugs in Queensland is a very serious one. A conviction for trafficking almost always carries with it a sentence involving imprisonment.

The word “trafficking” is not defined in the Drugs Misuse Act. It has been held to have a very wide meaning, and conveys a notion of trading in, or dealing with a drug.[1] The statute uses the words “carries on the business of unlawfully trafficking”.[2]


Some signs that a person is carrying on a business in drugs can include:
  1. negotiations for further outlets;[3]
  2. advertising or promoting to prospective buyers;
  3. setting up lines of supply;
  4. negotiating prices and terms;
  5. soliciting and receiving orders; and,
  6. arranging deliveries.[4]

It has been held that in order to prove a person trafficked in a drug it must be shown that he or she knowingly engaged in the movement of the drug from its source to the ultimate user, in the course of an illicit trade.[5]

It has also been held that a single disposal of a quantity of drug for reward can constitute a trafficking, if there was an intention to do it again.[6] The same could be true of a production.  In practice, this would usually have to be a large amount. “Even one dealing can be enough if it is intended to be the first transaction in what is expected to be a continuing activity.”[7]

It does not matter whether or not the trafficker made a profit.



 The maximum sentence for trafficking in Queensland is 25 years imprisonment. The offender must usually serve 80% of their sentence before being eligible for parole.[8]

[1] R v Quaile [1988] 2 Qd R 103

[3] R v Elhusseini [1988] 2 Qd R 442 per Connolly J at 445

[4] R v Elhusseini [1988] 2 Qd R 442 per McPherson J at 450

[5] R v Quaile [1988] 2 Qd R 103 per Ambrose J at 116, R v Antipas [1999] QCA 168 per McPherson J at [4]

[6] R v Quaile [1998] 2 Qd R 103 per Macrossan J at 114, R v Elhusseini [1988] 2 Qd R 442 at 454

[8] Section 5 Drugs Misuse Act 1986 (Qld) – the mandatory 80% non-parole period (at least as it applies to sentences of less than 10 years) applies to offences committed after 29 August 2013 per s.68B Justice and Other Legislation Amendment Act 2013 (No.35 of 2013).

The word “produce” is given a very wide meaning in Queensland’s drug law. It means:
  1. prepare, manufacture, cultivate, package or produce, and
  2. offering to do any of the above, and
  3. doing anything in preparation for the above, and
  4. doing anything in furtherance, or for the purpose of the above, and
  5. offering to do anything in preparation, furtherance, or for the purpose of the above.[1]

To prove any offence the prosecution must persuade a jury beyond reasonable doubt. At a minimum the prosecution in a production case would need to establish that something was done to prepare for the manufacture of a dangerous drug.



The maximum sentence for the production offence can be up to 25 years imprisonment, depending on the drug and the amount produced.[2]

[2] Section 8(c) Drugs Misuse Act 1986. For example, the maximum increases from 20 to 25 years if more than 2 grams of methylamphetamine is actually produced, but that does not apply to a case where there is an attempt to produce more than 2 grams; R v Geary [2002] QCA 33.

In order for a court to convict someone of the offence of supply it must be satisfied the person supplied a dangerous drug.


In Queensland’s law, the very wide definition of supply[1] means:

a)   Give, distribute, sell, administer, transport or supply;

b)   Offer to do any of the above acts in paragraph (a); or

c)   Doing anything in preparation of, or to further, one of the acts in paragraph (a).


It makes no difference whether drugs are exchanged as a gift or a sale. It is still a supply.

It also makes no difference whether what was supplied was in fact an illegal drug.  Suppose someone sold grass clippings pretending they were cannabis. That person would still have offered to supply cannabis, and would therefore be guilty of the offence.

This definition means that even if you have not yet given or sold the drugs to anyone, you can still be found guilty if you prepared to supply.

People caught with drugs often tell the police they intended to share the drugs with their friends, not realising that will result in a more serious charge. This is how people often talk themselves into trouble while thinking they are giving a good explanation. “I’m not a drug dealer officer! My ten mates put in $50 each and I bought the lot to share around.” This is a good example of why you should always take legal advice before answering any questions in a police investigation.

A person who buys, or knowingly receives, illegal drugs is also guilty of supply. This is because they have enabled, aided, counselled or procured the supplier.[2] For example, a prisoner who arranges for drugs to be smuggled to him can be guilty of supplying himself.[3]



The maximum sentence for supplying a dangerous drug can be up to life imprisonment, depending on the drug and the person supplied.

[3] R v Maroney [2000] QCA 310; [2002] 1 Qd R 285, Maroney v R [2003] HCA 63, (2003) 216 CLR 31

To prove that a person ‘possessed’ a dangerous drug the prosecution must prove:

a)   the substance was (or contained) a dangerous drug;

b)   the person knew the substance was present; and

c)   the person was able, if they chose, to exercise physical control of the substance.[1]


These concepts of knowledge and control are essential to understanding the legal idea of possession.

More than one person can be in possession of the same drugs.[2] This is often referred to as “joint possession”.[3]

The law recognises both physical possession (e.g. holding the drugs) and constructive possession (e.g. controlling premises in which drugs are stored). You can therefore be in possession of something that is in a place a long way away from you.

“Possession” is not at all the same idea as “ownership”. The court is not concerned with whether the drugs were “yours” or belonged to someone else. You can be in possession of something that you do not own; for example, if you are minding drugs to give back to another person.[4]

If you hold drugs for someone else, even for moment, then you are in possession of them.[5]


Occupier’s Liability

Where drugs are found in a place occupied by a person, then the starting point is that occupier is deemed to be in possession of the drugs. To avoid conviction the occupier must usually show that they did not know the drugs were there, and had no reason to suspect that they were there.[6]

However, the rule about occupiers does not apply when the drugs are physically in the possession of another person.[7] The occupier is also not usually responsible for drugs found in private areas within a shared property,[8] even within a shared room.[9] Suppose, for example, Jane and Michael share a house and drugs are found in Michael’s car in the garage. Jane would not be deemed to be in possession. However, if Michael had left drugs in their shared lounge room, Jane would be deemed to be in possession of those.[10]


Very Small Amounts

To secure a conviction for possession, the prosecutor will usually have to prove that there was more than a trace amount of the drug. That is, there must usually be a measureable quantity of the drug.

In R v Stevenson[11] the accused had a tiny amount of powder carefully wrapped and concealed in her handbag. The powder weighed 0.054 grams and contained a mere 0.009 grams of heroin. She was convicted.

That result can be contrasted with the case of Donnelly v Rose[12]. In that case the police found 0.026 grams of powder wrapped in foil. An analysis showed the presence of heroin but the analyst was unable to measure the amount of heroin. Mr Rose’s conviction was quashed. The Court of Appeal held that the prosecution had to establish something more than the mere presence of a drug.

Donnelly v Rose was followed in Loweke v QPS,[13] which was an appeal heard in the District Court. In that case 200mg of liquid was found in a syringe. The court found as a fact that the liquid had been set aside to be used in the future. There was methylamphetamine in the liquid, but the analysis did not say how much. It was held that the prosecution had to prove that there was more than a mere trace and must therefore prove a measurable amount. Mr Loweke was acquitted.

It should be noted that the decision in Donnelly v Rose has been criticised in decisions outside Queensland.[14] In a case where the prosecution have evidence (such as an admission to the police) that the accused person knew of the presence of a drug then the general principles of possession should arguably apply. For now, Donnelly v Rose is binding on all Queensland courts below the Court of Appeal and Loweke is binding on the Magistrates Court.

It should also be noted that the prosecutor will not have to prove an amount if they can prove that the accused person intended the substance to have the same “pharmacological effect” as a dangerous drug.[15] The term “pharmacological effect” is of uncertain scientific and legal meaning and is yet to be interpreted by the courts.

What is clear is that a trace amount, undetectable to the naked eye, is not enough to make a person guilty of a possession offence.[16] People who return positive tests when scanned at airports or prison visits will not be prosecuted on the basis of the test result alone.


Mistake of Fact – “I thought the drugs were something else”

Ignorance of the law is never a defence. However, an honest and reasonable mistake is a defence.  If the court accepted that you had an honest, reasonable but mistaken belief about whether some substance was a dangerous drug then you would be found not guilty.[17] For example, suppose I am given a packet of itching powder as a birthday present, and it turns out to contain something illegal. If the Court accepts that I honestly and reasonably believed it was ordinary itching powder the court must find me not guilty.

However, at my trial, it would be for me to persuade the Court that I had made an honest and reasonable mistake. That is, I would have the burden of proving my mistaken state of mind, and that my mistake was reasonable in the circumstances.[18]The standard of proof is the “balance of probabilities”, which means “more likely than not” or “better than 50%”.[19]

[1] He Kaw Teh v The Queen [1985] HCA 43, (1985) 157 CLR 523

[2] Dib v R (1991) 52 A Crim R 64

[4] Pelham v R (1995) 82 A Crim R 455

[5] R v Thomas (1981) 6 A Crim R 66; Todd v R (1982) 6 A Crim R 105

[7] Lawler v Prideaux [1995] 1 Qd R 186; 70 A Crim R 145

[8] Symes v Lawler [1995] 1 Qd R 226; 69 A Crim R 432

[10] Thow v Campbell [1996] QCA 522, [1997] 2 Qd R 324 at 326

[12] Donnelly v Rose [1993] QCA 223, [1995] 1 Qd R 148, following more general statements in Williams v R [1978] HCA 49, (1978) 140 CLR 591. Also R v Bourke (1993) 67 A Crim R 12.

[15] As a result of the extended definition of “dangerous drug” in section 4 Drugs Misuse Act 1986 since 29 April 2013, effected by s.40 Act No.14 of 2013.

[16] Williams v R [1978] HCA 49, (1978) 140 CLR 591

[18] R v Clare [1993] QCA 558, [1994] 2 Qd R 619; Section 129(1)(d) Drugs Misuse Act 1986. It follows that in Queensland the “knowledge” element of possession is knowledge of the substance, and not knowledge that the substance is a dangerous drug. That is a point of difference between the laws of Queensland and other States, discussed in He Kaw Teh v The Queen [1985] HCA 43, (1985) 157 CLR 523 and Tabe v R [2005] HCA 59(2005) 225 CLR 418

[19] Tabe v R [2005] HCA 59(2005) 225 CLR 418 at [145] per Callinan and Heydon JJ