Contesting a cannabis charge – what you need to know

Help yourself – not the law

The most important thing is to know your rights and understand the law. If you’ve made the choice to use cannabis, you should understand how the law works so you can minimise any negative consequences of arrest, prosecution and/or incarceration.

First, take a few minutes right now to read the Your Rights page in the Main Menu on the left. Even if you’ve read it before, or think you know your rights already, do it again. Go on, do it now.

One or two can pretend to be cops and the rest can be some mates they want to hassle. Practice declining consent for a search by saying “No I do not consent to a search, what is your lawful authority?” (remember, silence is taken to mean consent, so you must voice your refusal to consent to the search, even if they have a warrant or invoke the MDA s18). Practice remembering all the details (everything that was done and said) which will really help if it happens for real and you need to go to court. Practice keeping your mouth shut and not making statements. This will help make it second nature if and when you have an interaction with the law.

You also need to understand how the law works. For example, to prove a charge involving drugs they need to satisfy all of these conditions:

1. that it is an illicit drug
2. that you knew it was an illicit drug
3. that you are in control of it
4. that you intended to use/possess/sell it for illicit purposes

Many people caught with cannabis think that if point 1. above is satisfied (that it is cannabis), then they are guilty. So they plead guilty “to make it easier”, but we think that just makes it easier for the police! Remember, police need to satisfy all 4 conditions, not just one or two. If they had pleaded not guilty, police would still have to prove 2-4 above to prove the charge and secure a conviction. Yet there could be reasons why they had a controlled drug, but did not know that’s what it was, or were not in control of it, or didn’t intend to have it for illicit purposes.

Knowledge: After finding some cannabis, police will ask “what is this?” and get you to identify it, so that you have shown you know it is a controlled drug and condition 2. above is satisfied. However if you thought it was damiana or herbal tobacco, or anything legal, then condition 2. above is not satisfied and the charge may not stick.

Control: this condition may not be satisfied if the cannabis was located in a communal area, for example in the lounge or under the passenger seat. Plants may have someone else’s name tags on them. The pants you are wearing might not be yours (and neither is the weed in the pocket)… There are all sorts of ways of not being in control of the weed itself, the main thing is to not just admit it’s yours and hope that if you are nice to the cops they will be nice back. NORML activists have spent many years dealing with people who have been busted, and one major lesson is that the cops are seldom nice back, and all it really does is make their job easier and you more likely to be convicted.

Illicit intention: The Misuse of Drugs Act says it is a defense to be in control of drugs if you found them or confiscated them and are looking for the nearest police officer or police station to hand them in. Perhaps that weed had been confiscated from somebody else.

At the station: assuming you have been arrested anyway, and you’re at the station – don’t answer any questions, don’t make or sign a statement, and generally refuse everything the police ask you to do (although always be calm, civil and polite and don’t resist physically). It is what happens in court that counts, not what happens at the station or what the police claim will do or will not do. Keep quiet, ignore their threats, and in a few hours you’ll be out and ready to prepare for your court appearance.

In court: If you made and signed a statement admitting the weed was yours, you may have reduced your options and made a conviction more likely. If you didn’t answer any questions and didn’t sign a statement, you still have all your options open. You can fight the charge or plead guilty if you want to, but the key point is that your options are still open.

At your first court appearance you can enter no plea and get the police “disclosure” file, which contains all the evidence they have against you. See what sort of case they have before deciding what to do (Note: if you plead guilty, you do not get the disclosure file and will never find out that they may have actually had a very weak case that would not have stuck in court).

After reviewing their evidence, consider how the points above about knowledge, control and intention fit into the circumstances of your case.

Pay particular attention to what happened before and during the search:

  • Did they have lawful authority?
  • Did you consent or refuse consent?
  • Was their suspicion “reasonable”?
  • Was any warrant correctly signed, dated and served?
  • Were you read your rights?
  • Were you lawfully or unlawfully detained?
  • Were you given access to a free lawyer at the station?

Even if you were caught red-handed, you may get off on a “technicality” if police didn’t follow correct procedures.

Talk to a lawyer. If you cannot afford one, see the Duty Solicitor in court, or talk to the court Registrar about getting Legal Aid. If police are using unrealistic, inflated estimates for yields or values, consider engaging a cannabis expert witness to assist the court with correctly interpreting the facts of the case.