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Do I have a valid defence?

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

Despite what the police might say, being charged by the Police with an offence does not mean that you will be found guilty of that offence. It is also true to say that Police are human and do make mistakes in other cases they may be biased or act illegally.

There are many reasons why you may be found not guilty by the court, we have listed a few below:

  • The police don’t have enough evidence to prove that you committed the offence;
  • They cannot prove that you had possession of the drugs;
  • The police have acted illegally or improperly;
  • A witness may not attend court;
  • The Police have charged you with the wrong offence;
  • You are able to rely on a recognised defence.

Common Defences to Drug Charges

You had Drugs for Personal Use and Not for Supply

The law (section 29 of the Drug Misuse and Trafficking Act 1985) provides that if a person has a quantity of drugs more than the trafficable quantity of that drug, they are deemed to have it in their possession for the purpose of supply. This is commonly referred to as deemed supply.

The law (section 29(a)) states that an offender will not be deemed to have the drug for supply if they prove they had it in their possession for a purpose other than supply (for their own use).

The criminal lawyers at Armstrong Legal have been very successful in defending clients for supply drugs utilising this defence. On occasions it may be necessary to call an expert witnesse to establish the amount of drugs in your possession was not excessive.

Police Cannot Prove that you Possessed the Drugs

The police must prove beyond a reasonable doubt that you knew of the existence of the drug in your physical custody or control. Quite often the police will find drugs within a car or in a house during a search warrant. The police must prove that you knew of the existence of the drug within the car or house and you knew that the substance was a drug. Where a car or house is used by many people it may be that the police cannot prove that it was you who had possession of the drugs and not someone else.

Duress – Forced to Sell Drugs

The defence of duress involves an extremely serious threat to an accused or their family involving the death or serious injury of the accused or their family. This defence is rarely raised in a criminal trial.

Test

An accused must call evidence about the following:

  • The making of an actual threat,
  • That the threat must be of death or serious injury to the accused or his family,
  • That the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did, and
  • That the accused acted as he did because of the threat which was still acting on his mind at the time of the criminal act.
  • For such a threat to be effective it must be continuing and be seen to be continuing and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective.

Onus of Proof

The accused bears an evidentiary onus (call evidence that raises the defence). Once the accused discharges the evidentiary onus the prosecution must prove that the accused acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress.

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