Meaning of Possession in Drug Offences Under the Customs Act

• NCJ Number: 69903
• Journal: Criminal Law Journal Volume: 3 Issue: 5 Dated: (October 1979) Pages: 271-294
• Author(s): J Willis
• Date Published: 1979
• Length: 24 pages
• Publication Format: Article
• Language: English
• Country: Australia

Annotation

Part of Australia's Custom's Act dealing with 'narcotic drugs' is s. 233B, which creates a series of offenses concerned with those prohibited imports and exports that are narcotic goods; this article explores the meaning of 'possession' in the law.

Abstract

To establish 'possession' under S. 233B of the Customs Act the Crown should be required to prove beyond a reasonable doubt that the defendant (1) had dominion and control over the item, which was in fact a prohibited drug; (2) intended to exercise dominion and control over that item; and (3) knew that the item was a prohibited drug. A person has dominion and control over an item if he has it in his exclusive control or has so placed it that he has power to reduce it easily to his exclusive control, and no one else is likely to exercise control over it. The fact that the item was in a container in the physical control of the accused may and often will (depending on all the circumstances of each case) give rise to an inference that the accused had 'possession' of the drug, but it should always remain the duty of the Crown to prove beyond a reasonable doubt possession of the drug. The same applies where the drug is found in a place over which the defendant exercises physical control. this interpretation of 'possession' is in accord with the standard principles of criminal law that the offense should be defined with clarity, that it should contain as an element mens rea, and that the Crown should bear the onus of proving every element of the offense beyond a reasonable doubt. The proposed interpretation of S. 233B is in line with the meaning given to the section since its inception in 1910 and agrees with the approach toward such offenses taken in Canada, the United States, and New Zealand. Also, this interpretation of 'possession' should not place an intolerable burden on the Crown. Case law is cited in the 98 footnotes. (Author abstract modified)