Possession of a drug of dependence is an offence under section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). While it is a less serious offence than drug trafficking, a conviction can still carry significant penalties and consequences. If you have been charged with drug possession, it is important to get legal advice promptly.

Drug possession charges are heard in the Magistrates’ Court of Victoria. At Angus Cameron and Partners, we represent clients charged with drug offences at all levels — from possession through to large commercial trafficking — and understand how to achieve the best available outcome at every stage of the process.

Elements

The prosecution must prove two elements beyond reasonable doubt:

  • the substance in question was a drug of dependence; and
  • you possessed that substance.

Drug of dependence

A drug of dependence includes all substances listed in Parts 1 and 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), as well as their derivatives, isomers and salts. Fresh or dried plants listed in Part 2 of Schedule 11 are also included. Common examples include methamphetamine, heroin, cocaine and cannabis.

All parts of a plant can be a drug of dependence — including parts that cannot be used, such as the stems, roots and stalks of a cannabis plant, so long as they fall within the statutory definition.

Possession

Possession is assessed by reference to two requirements: physical control of the drug, and knowledge that what you possess is a drug of dependence.

Physical control

Physical control can be actual or constructive. Actual possession means you have direct physical control of the drug. Constructive possession does not require you to be physically holding the drug — it is enough that you knowingly have the power and intention to exercise control over it, whether directly or through another person. For example, drugs stored at a location you control may still be in your constructive possession.

Where drugs are found on premises you occupy, the law may presume you were in possession of them. However, you can rebut that presumption by establishing on the balance of probabilities that you did not have knowing possession of the drugs.

Knowledge

You must have known that the substance you possessed was a drug of dependence. Actual knowledge is required — it is not enough that you should have known, or that the circumstances were suspicious. If you genuinely did not know the substance was a drug, the knowledge element is not made out.

Defences

Being charged with possession of a drug of dependence does not necessarily mean you will be convicted. There are several defences that may apply depending on the circumstances of your case.

Lack of knowledge

If you did not know the substance was a drug of dependence — for example, because you were unaware of what it was or had been given it without your knowledge — the prosecution may not be able to establish the knowledge element. These situations are fact-specific and require careful assessment.

Lack of possession

If you did not have physical control over the drug, and were not in a position to exercise control over it, you were not in possession of it. This may arise, for example, where drugs were found in a shared space and there is no evidence connecting them to you specifically.

Insufficient evidence or improperly obtained evidence

The prosecution must prove each element beyond reasonable doubt. In many possession cases, the key issue is whether the prosecution can establish both control and knowledge. Where the evidence on either point is weak — for example, where drugs were found in a location accessed by multiple people — there may be a strong basis to contest the charge. Where evidence has been obtained unlawfully, such as through an illegal search, there may also be grounds to seek its exclusion.

FAQs

What is considered a “drug of dependence”?

Drugs of dependence are those listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Common examples include methamphetamine (ice), heroin, cocaine and cannabis. The definition also extends to derivatives, isomers and salts of listed substances, as well as all parts of relevant plants.


What is the difference between possession and trafficking?

Possession involves simply having a drug of dependence in your control. Trafficking is a more serious offence that involves selling, exchanging, offering for sale, manufacturing or preparing drugs for sale, or possessing drugs with the intention to sell. Trafficking carries significantly heavier penalties than possession.


What if the drugs were found in a shared house or car?

The fact that drugs were found in a shared space does not automatically mean you possessed them. The prosecution must prove both that you had control over the drugs and that you knew they were there and knew they were a drug of dependence. Where multiple people had access to the location, there may be a real question about who, if anyone, was in possession of the drugs.


What if I did not know what the substance was?

If you genuinely did not know the substance was a drug of dependence, the prosecution cannot establish the knowledge element of the offence. This is a question of fact for the court, and all the circumstances — including how you came to have the substance — will be relevant.


Do I need a lawyer if I'm charged with drug possession?

Yes. Even though possession is a less serious offence than trafficking, a conviction can have lasting consequences — including affecting your employment, travel and professional licences. An experienced criminal lawyer can assess the strength of the prosecution’s case, identify available defences, and work to achieve the best possible outcome.


What are the penalties for drug possession in Victoria?

Possession of a drug of dependence carries a maximum penalty of 1 year imprisonment or a fine of 30 penalty units, or both. This can increase to 5 years maximum if the Court finds that the drugs were possessed in connection with trafficking. However, first-time offenders may be eligible for diversion, which can result in no conviction being recorded. We can advise you on whether diversion is available in your case.


Will a drug possession conviction give me a criminal record?

A conviction for drug possession will be recorded as part of your criminal history. This can affect employment, travel, and professional licensing. We will work to achieve the best possible outcome — including diversion where available — to minimise the long-term consequences.


What is the difference between drug possession and possessing a traffickable quantity?

In some circumstances, possessing a quantity of drugs above a certain threshold can in and of itself be evidence of trafficking. However, this does not necessarily mean that you will be found guilty of trafficking.


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