The Law Handbook 2024

Chapter 3.2: Drug offences 133 legal representative contact the program’s clinicians at court. The only requirements of the program are that the person meets the eligibility criteria, CISP is available at the court they are attending, and they consent to be involved in the program. It is not necessary to plead guilty to participate in CISP. Once placed in the program, a clinician arranges for the person to be assessed. Suitable treatment (provided by various support agencies) is arranged. If drug dependence is a problem, the clinician arranges treatment at an accredited drug treatment agency. Once a person is part of CISP, it becomes a condition of bail that they comply with all the directions of the program. When the person returns to court, the clinician will have prepared a report for the magistrate. The program usually lasts four months, with reviews every month by a magistrate. A person’s performance during the program is taken into account in sentencing. Successful participation in the program should result in a lesser sentence and, in some cases, can make the difference between going to jail or not. Possession: Offences and penalties What is possession? ‘Possession’ is an indictable offence under section 73 of the DPCS Act. The prosecution can prove possession by relying on the common law (see R v Mateiasevici [1999] VSCA 120) or by relying on the deeming provision or extended meaning in section 5 of the DPCS Act. Under common law, a person is in possession of a drug if they have physical control or custody of the drug. The prosecution must prove the person knew of the presence of the drug and also that the person intended to possess the drug. In many cases, custody of a drug may be enough evidence of possession, including the necessary mental element. This is because the inference of knowledge may often be drawn from the surrounding circumstances (see Williams v The Queen [1978] HCA 49). As well as its common law meaning, ‘possession’ has an extended meaning under the DPCS Act (s 5); a person is deemed to be in possession of drugs if: • the drugs are on land or premises occupied by the person; or • the drugs are used, enjoyed or controlled by the person in any place whatsoever, unless the person satisfies the court to the contrary. In the case of R v Clarke and Johnstone , the court decided that the DPCS Act (s 5) puts the onus on the prosecution to prove beyond reasonable doubt either occupation of the relevant land or premises where the drug was found, or that the drug was used, controlled or enjoyed by the accused in any place whatsoever. The legal test of occupation is having sufficient control over land/premises to be able to exclude others. Mere use of premises is insufficient (see Fox v Warde [1978] VicRp 37; Thow v Campbell [1996] QCA 522; R v Pisano [1997] 2 VR 342); R v Tran (2007) 16 VR 673). Statutory possession: Burden of proof (s 5 DPCS Act) If the court is satisfied that: 1 the substance found on the premises is an illegal drug; and 2 the premises was occupied by the accused, the accused is guilty of possession unless they can prove, on the balance of probabilities, that they were not in common law possession of the drug. This is a ‘deeming’ provision that shifts the burden of proof (albeit on the balance of probabilities) to the accused. Deemed possession includes situations where the accused is: 1 the occupier of land where cannabis is grown; 2 a husband or wife who occupies (as owners or tenants) a house where drugs are found; 3 the occupier of a room in a motel where drugs are found; or 4 the owner or driver of a car containing drugs. The burden of proof on the accused can be satisfied if it can be proved that the accused did not know the drug was there or, even if the existence of the drug was known, did not intend to possess it. Note that the High Court has held in Momcilovic v The Queen [2011] 245 CLR 1 that the section 5 deeming provision applies only to possession-type offences and not to trafficking charges based on possession. Some other cases worth considering in relation to possession are: • Kural v The Queen [1987] HCA 16;