South Australia

For offences involving controlled drugs or controlled plants in South Australia the police generally have to prove that you knew, or should have known, that the drugs or plants were controlled drugs or controlled plants.

They don’t need to prove you knew which particular controlled drug or plant you had in your possession. This means, for example that you can be charged with trafficking in speed, even if you incorrectly believed that you were selling a legal synthetic substance (which was actually illegal).

If you hold out or pass off a substance or plant as a controlled drug or plant, for the purpose of supply, you can still face the same penalties as if it were a controlled drug. This means, that you can be charged with suppling cocaine even if you are just trying to rip someone off, for example, by selling him or her icing sugar.

Mixtures of drugs and trafficking
A mixture of substances which contains an amount of a controlled drug will be regarded as an illegal drug. This means that if you sell cocaine cut up with washing powder you can still be charged.

Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated. 

SA uses a mixed weight system of calculating threshold quantities for trafficking. 
SA police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures, or preparations) to be the total quantity of the controlled drug when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the trafficable quantity for you to be charged with trafficking.

Aggregated quantities of drugs and trafficking
In SA if you are found to be supplying or trafficking on various occasions within 7 days, or in the course of carrying out organised criminal activity, the separate charges can be heard as a single offence. Amounts of different drugs can be added (aggregated) into a single offence charge.

The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. For example, if you are charged with trafficking a number of different drugs, the prosecution will calculate the ‘required fractions’ of the quantity of each pure drug by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity. 

For example if you traffic 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found trafficking 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were each less than the trafficable quantity. 

Does the harm of the drug matter?
No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain controlled drugs should not be treated as more or less harmful than others. 

For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs. 

General charges for being involved in a drug offence
Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

•    taking part in an offence if you are involved in the offence even if you don't make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);

•    being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being security or a guard or a look out for a drug deal);

•    aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in); or

•    conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.


Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

In South Australia, illegal drugs are called controlled drugs and illegal plants are called controlled plants.

The definition of “controlled drugs” extends to include substances which are chemical analogues of, or chemically related to, listed controlled drugs.

This may mean that new, synthetic type drugs which are chemically derived from, or related to a controlled drug will also be illegal, even if it is not specifically listed in the schedules.

Controlled drugs Controlled plants
Heroin Cannabis
Cannabis Magic Mushrooms
THC cannibinols Lopophora cactus (mescaline)
Cathinone (Mephedrone, MCAT, meow) Opium poppies
PCE Salvia divinorum
PCP This list is not the full list. All substances listed in Schedule 3 of the Controlled Substances (Controlled Drugs, Precursors And Plants) Regulations 2000 under the heading “Part 1 - Controlled plants other than cannabis plants” and “Part 2 –Cannabis plants”.
LSD http://www.austlii.edu.au/au/legis/sa/consol_reg/csdpapr2000757/sch3.html
Ecstasy/MDMA  
DMT  
GHB  
Methamphetamine (ice/speed)  
Mescaline  
Morphine  
Methadone  
Ketamine  
Amphetamine  
Dexamphetamine  
Buprenorphine  
Cocaine  
This list is not the full list. All substances listed in Schedule 1 of the Controlled Substances (controlled Drugs, Precursors and Plants) Regulations 2000 are illegal under the heading "Part 1 - Controlled drugs other than drugs of dependence" and "Part 2 - Controlled drugs".  
http://www.austlii.edu.au/au/legis/sa/consol_reg/csdpapr2000757/sch1.html  

 

It is an offence to possess a controlled drug, unless the controlled drug has been lawfully prescribed or supplied to you.

Proving possession

There are three elements required to prove possession: knowledge, custody and control.

  • Knowledge means that you must know that the substance is a drug and that it is in your custody. In South Australia the prosecution does not need to prove that you knew which drug you used or were in possession of. They only have to prove that you were reckless or believed in the circumstances that you had possession of any controlled drug;
  • Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under your pillow). However, custody can also extend to include such places as your house or car; and
  • Control means that you have the right to do something with the drugs (for example, keep or use them). If there are drugs in your house but they do not belong to you and you don’t have any control over them, you are not in possession of them.

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

There will be circumstances where, if you don't admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

                                                                                 Do not admit to possessing drugs without speaking to a lawyer!

 

Custody and joint possession

Generally if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned and had custody or control of the drugs, unless people make admissions.

The police must prove more than the facts that you knew drugs were there and that you didn't report the drugs or object to them being there. Therefore if you share a house and police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

However it is not impossible for police to prove that possession was jointly held.  Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint possession is generally hard to prove if no one admits to owning the drugs.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don't have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the  'Carey defence'.

Possession for the purpose of supply (as opposed to personal use) is a much more serious offence. For further information see the section on “Supply”.

Penalties

Possession of a controlled drug other than cannabis (for your own personal use) is a summary offence, which means it is dealt with by the Local Court, or Children’s Court.

                Maximum penalty: $2,000 and/or imprisonment for 2 years.[1]

Possession of cannabis (for your own personal use) is a summary offence, which means it is dealt with by the Local Court, or Children’s Court.

                Maximum penalty: $500.[2]

 

[1] s 33L Controlled Substances Act 1984

[2] s 33L Controlled Substances Act 1984

Use, consumption or self-administration of a controlled drug is an offence.  It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine and methadone without following the doctor's or pharmacist's directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.

                Maximum penalty:

  • for cannabis (leaf, oil or hash resin): $500.
  • for any other controlled drug: $2,000 and/or imprisonment for 2 years.[1]

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs) Sometimes the police don’t bother to charge people with self-administration, even if an admission has been made. However, you should be careful of what you say to the police.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don't admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

                                                                                                 Do not admit to using drugs without speaking to a lawyer!

Administering or helping another person use a controlled drug or plant is an offence. It is also an offence to have possession of a controlled drug or plant with the intention of administering it to another person. Administration can include taking a drug orally or by inhaling or ingesting smoke or injecting a drug. This means it is illegal to inject another person even if they have asked you to or given you consent.

                Maximum penalty:

  • for cannabis (leaf, oil or hash resin): $2,000 and/or imprisonment for 2 years.
  • for any other controlled drug: $50,000 and/or imprisonment for 10 years.[2]

If you administer a prohibited drug to another person who subsequently dies from an overdose ('OD') you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about attendance at overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose in South Australia unless:

  • they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
  • a death has occurred or there are suspicious circumstances (like attempted murder);
  • they were the first on the scene; or
  • the OD occurred in a 'flagged area' which means the ambulance service has identified the area as a dangerous area or an area where violence has occurred in the past, so that police are automatically sent when a call for assistance in that area is logged.

Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene or the person who overdoses with administration or other minor drug offences such as possession.

 

[1] s 33L Controlled Substances Act 1984

[2] s 33I Controlled Substances Act 1984

It is an offence to supply a controlled drug without lawful authority. Supply has a very broad definition and you could be guilty of an offence even if no drugs or money change hands.

Supply can include:

  • offering or agreeing to supply, even if no deal ever takes place;
  • being knowingly concerned in supply, for example, introducing someone to a dealer;
  • supplying a legal substance that you claim is a prohibited drug, for example, selling aspirin and passing it off as heroin;
  • pooling money and splitting up purchased drugs between the group of buyers;
  • having drugs in your possession for the purpose of supply.

If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags, and cash.

A charge of supply can even rest on an offer to score on behalf of your mates, or sharing your gear with other people. It doesn’t matter whether or not there is any money involved.

It is an offence to supply or to have possession for the purposes of supplying a controlled drug or plant.

                Maximum penalty:

  • for cannabis (leaf, oil or hash resin): $2,000 and/or imprisonment for 2 years.
  • for any other controlled drug: $50,000 and/or imprisonment for 10 years.[1]
 

[1] s 33I Controlled Substances Act 1984

Trafficking in a controlled drug is an offence. Trafficking has a wide meaning in South Australia.

You can be charged with trafficking in a controlled drug if you -

  • sell the drug;
  • take part in the process of a sale of drugs;
  • prepare or pack the drug for sale or for someone else to sell;
  • intentionally transport or deliver the drug;
  • guard or hide the drug with the intention of selling it; or
  • possess the drug with the intention of selling any of it.

Proof that a person possessed a trafficable quantity of a controlled drug gives rise to a presumption that there was intention or understanding that the drug was to be sold.

This means that the court will deem or automatically assume that you intended to sell the drugs meaning that you will face higher penalties. This presumption can be rebutted by evidence.

Trafficking in a certain amount doesn't have to occur all at once. You can be charged with trafficking a greater amount than you actually did, if it is proved that you trafficked the controlled drug or plant more than one time, or repeatedly within a 7day period.

If you traffic in more than one controlled drug or plant, there are rules, which will allow the police to count the different quantities to make up a combined total. This means is that if you traffic two small quantities of different drugs, they can be counted as one larger amount, which means you might face higher penalties.

The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. For example, if you are charged with trafficking a number of different drugs, the prosecution will calculate the ‘required fractions’ of the quantity of each pure drug by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.

For example if you traffic 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found trafficking 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were each less than the trafficable quantity.

The perceived harm potential of a drug is not relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic) but may be taken into account when you are being sentenced.

Trafficking offences carry different penalties depending on the circumstances in which the trafficking took place. If you sell, or are involved in an attempted sale of drugs for the benefit of a criminal organisation, such as an outlawed bikie gang, or under the direction or control of a criminal organisation, you can be charged with aggravated trafficking.[1]

If you sell, or are involved in an attempted sale of drugs in or around a prescribed area you can face higher penalties.[2]

Prescribed areas include:

  • licensed premises such as bars, pubs, clubs, casinos; or
  • entertainment events such as concerts, festivals, sporting matches or parades.

You can also be charged with this offence if you are dealing in a car park near a prescribed area or a queue to enter a prescribed area.

Penalties

Trafficking in a large commercial quantity of a controlled drug:

                Maximum penalty: $500,000 and/or imprisonment for life.[3]

Trafficking in a commercial quantity of a controlled drug:

                Maximum penalty:

  • For a basic offence: $200,000 and/or imprisonment for 25 years.
  • For an aggravated offence: $500,000 and/or imprisonment for life.[4]

Trafficking in a trafficable quantity of a controlled drug in a prescribed area:

                Maximum penalty:

  • for a basic offence: $75,000 and/or imprisonment for 15 years.
  • for an aggravated offence: $200,000 and/or imprisonment for 25 years.[5]

Trafficking in a trafficable quantity of a controlled drug (not in a prescribed area):

                Maximum penalty:

  • for a basic offence: $50,000 and/or imprisonment for 10 years.
  • for an aggravated offence: $75,000 and/or imprisonment for 15 years.[6]

If you are charged with trafficking a trafficable quantity of cannabis, but less than a commercial quantity, your case will normally be heard as a summary matter in the Magistrates Court.

 

[1] s 43 Controlled Substances Act 1984

[2] s 32(6) Controlled Substances Act 1984

[3] s 32(1) Controlled Substances Act 1984

[4] s 32(2) Controlled Substances Act 1984

[5] s 32(2a) Controlled Substances Act 1984

[6] s 32(3) Controlled Substances Act 1984

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