The Case of the Bag of Pills

Brittany vs the Legal Advice Column: The Case of the Bag of Pills

Introduction

Earlier this week I discovered that a particular news publication was running a legal advice column. In the news article, the column attempted to answer a question asked by a parent who has found drugs in her son’s room.

 

The question the news article attempted to answer was this:

I am in a really difficult situation that I feel sick about. I have a 17-year-old son who used to be a good boy but lately seems to be hanging out with a different crowd who I think are a bad influence on him. I was cleaning his room the other day when I found a bag of around 20 pills. I’m not familiar with illegal drugs but they were in a ziplock bag and didn’t look like something you’d buy in a pharmacy. I confronted my boy and asked him what they were and he said he was just looking after them for a mate. I told him to give them back to his mate and never bring drugs into my house again. Now I’m worried I’m complicit in something illegal. Should I tell the police about the drugs? My son would hate me as his friend is 19 and could face charges but I don’t want my son being dragged down with him and I also don’t want to end up in trouble myself. – Anon, Queensland

 

The advice offered by this legal advice column in response to this question was incorrect. Accordingly, I write this article to provide an accurate response to this question.

Possible Offending

Possessing Dangerous Drugs

Based on Anon’s question, it is possible that Anon and/or their son could already be liable for the commission of one or possibly more criminal offences.

What Anon and/or son could be criminally liable for would be entirely dependent on what was in the bag, and would also possibly be dependent on the pure weight of what was in the bag.

Again, depending on what was actually in the bag, it is possible Anon and/or son could be charged with is possession of a dangerous drug contrary to section 9 of the Drugs Misuse Act 1986 (Qld) (“the Drugs Misuse Act”).

Section 9 of the Drugs Misuse Act states as follows:

9 Possessing dangerous drugs

1. 1. A person who unlawfully has possession of a dangerous drug is guilty of a crime…
      • a. …

The effect of the above provision is that a person is guilty of a criminal offence if, without a defence, they have possession of a dangerous drug and that possession is unlawful.

In this case, it would not matter that the drugs did not belong to Anon or the son, or that the drugs were not for their use. Ownership and intent for use are not relevant to the question of whether or not Anon and/or the son are criminally liable for unlawfully possessing the drugs. Depending on what was in the bag, Anon and/or son could therefore possibly be liable for possessing dangerous drugs contrary to section 9 of the Drugs Misuse Act.

Reversal of the Presumption of Proof

It is usually the case with any criminal charge that the responsibility is on the prosecution to prove beyond reasonable doubt that the alleged offender committed the offence, in all elements of that offence.

Section 129(1)(c) of the Drugs Misuse Act reverses this responsibility when it comes to proving possession. The effect of this provision is that a person is automatically deemed in law to have possession of a dangerous drug if the drug is in a place and that person is an occupier of that place, unless that person can prove that they did not know or suspect the drug was in that place.

Section 129(1)(c) of the Drugs Misuse Act states as follows:

129 Evidentiary provisions

(1) In respect of a charge against a person of having committed an offence defined in part 2—

…

 (c) proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; and

(d) the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge; and

(e) the burden of proving any authorisation to do any act or make any omission lies on that person.

Therefore, merely by reason that Anon and son are occupiers of the house, they are deemed by law to have possession of the drugs held within that house at the time. If charged, the responsibility would be on Anon and son to prove they did not know the drugs were there.

Permitting Use of a Place Offence Provision

An offence provision which arguably has been written expressly to cover the situation in which Anon parent finds themselves is detailed in section 11 of the Drugs Misuse Act, which provides as follows:

11 Permitting use of place

• • A person who, being the occupier or concerned in the management or control of a place, permits the place to be used for the commission of a crime defined in this part is guilty of a crime.

Maximum penalty—15 years imprisonment.

                (2)          …

Section 11 of the Drugs Misuse Act is designed to cover the criminality of a person using their residence as a base for drug offending.

In accordance with this provision, it is feasible that the police could charge the Anon parent with this offence and allege that the Anon parent unlawfully permitted their house to used for the commission of a crime, that crime being the son’s unlawful possession of dangerous drugs. This of course again is dependant on what actually was in the bag at the time.

However, depending on their particular circumstances, Anon parent could argue as a defence to this charge that immediately after finding the drugs, Anon parent ensured that the drugs were taken away from the place and that accordingly they did not “permit” the drug offending to occur on their premises. Whether this defence would be successful would be dependent on what was in the bag, how long the bag of pills remained on the premises after Anon parent discovered them, and/or what Anon parent actually did to ensure the pills were taken off the premises after Anon parent found them.

Supplying Dangerous Drugs- Son’s Liability

Again, depending on what was in the bag, it is possible that the son and/or Anon parent may technically be liable for supplying dangerous drugs back to his friend.

As per the original question posed in the article: “I told him to give them back to his mate and never bring drugs into my house again.”

Section 6 of the Drugs Misuse Act states as follows:

6 Supplying dangerous drugs

(1) A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime.

…

Further, section 4 of the Drugs Misuse Act defines “supply” as follows:

supply—

(a) …

(b) otherwise, means— (i) give, distribute, sell, administer, transport or supply; or (ii) offering to do any act specified in subparagraph (i); or (iii) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in subparagraph (i).

Taking into account the above, it does not matter that the drugs originally belonged to the friend and the son was merely giving the drugs back to his friend. Returning the drugs to the friend still possibly comprises “giving”, “distributing” or “transporting” the drugs, and therefore could technically meet the definition of “supplying” the dangerous drugs pursuant to section 6 of the Drugs Misuse Act.

There is therefore the possibility that the son is technically criminally liable for supplying dangerous drugs.

Supplying Dangerous Drugs- Anon Parent’s Liability

Sections 7 and 8 of the Criminal Code Act 1899 (Qld) (“Queensland Criminal Code”) are provisions informally known as “party provisions” in the Queensland Criminal Code. Broadly, the effect of these provisions is to make directly criminally responsible any person who in certain circumstances is otherwise indirectly involved in an offence.

Section 7 of the Criminal Code is one type of “party” offence provision, which states as follows:

7 Principal offenders

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence

                (2)          …

The effect of this provision is that if any person aids, counsels or procures another person to commit a criminal offence, or fails to do something with the purpose of helping another person commit an offence, that person is criminally liable for committing that offence to the same extent as the actual perpetrator of the offence.

Accordingly, again dependant on what is in the bag, by telling the son to return the pills to his friend, Anon parent may likewise be technically liable for supplying dangerous drugs as a section 7(1)(d) party to the offence because they “counselled” the son to commit this offence.

Supplying dangerous drugs is a very serious criminal offence and, depending what the pills are and other circumstances (one important circumstance being whether or not the son gave his friend back the pills inside a school)[1], may carry penalties up to 25 years imprisonment[2] (and life imprisonment if the son’s friend had been a minor aged under 16 years[3]). If Anon or son are charged with this offence, it may have to be finalised in one of Queensland’s higher Courts, the District or Supreme Courts[4] (though could be finalised in the Magistrates Court, again depending what is contained within the bag).

It should be noted, however, that the case for supplying dangerous drugs on the part of Anon or son would probably be technical at best and it may be unlikely that the police would actually charge Anon or son with supplying dangerous drugs. This is by no means certain, however, and the decision whether or not to charge with supply would be solely at the discretion of the police.

[1] Drugs Misuse Act 1986 (Qld), s 6(1)(b), s6(2)(c).

[2] Drugs Misuse Act 1986 (Qld), s 6(1)(b).

[3] Drugs Misuse Act 1986 (Qld), s 6(1)(a); 6(2)(a).

[4] If the maximum penalty for the charge exceeds 20 years, the matter will be dealt with in the Supreme Court. See District Court of Queensland Act 1967 (Qld), s 61.

Should Anon contact the Police?

Anon asks whether or not they should contact the police in this scenario.

Given that Anon and/or their son may be liable for one or more criminal offences, Anon should not contact the Police, at least without speaking in depth to a criminal defence lawyer first. In almost all similar circumstances, contacting the police would not be a course that I would personally recommend.

In the scenario posed by Anon, if the parent otherwise contacts the police, it is likely that this could spark a police investigation into the matter. As a result of this investigation, it is likely that the police could want to question the parent and son about the origins of this bag of drugs. If the police are satisfied that illicit drugs were in the house at any point, the son and/or the parent could be charged with possession of the drugs. If the police are told that the son gave the drugs back to the friend as per the parent’s instructions, the son could possibly be charged with supplying dangerous drugs, and the parent could possibly be charged with being a party to that drug supply. The parent could also be charged with “permitting use of a place” for the commission of a crime pursuant to section 11 of the Drugs Misuse Act.

Even if Anon contacts the police anonymously or does not talk to them further, police also have other ways of investigating the parent and son. For example, police could decide to interview the friend about the parent and/or son’s involvement and could obtain a search warrant on the friend and/or the son’s phone to find evidence that the friend asked the son to hold the drugs for them, or that the son gave the drugs back to the friend.

Possible Aggravated Offending

There are also many clues in Anon parent’s question that also lead to the possibility that this could be “aggravated offending”, which is offending that is more serious than a minor drug possession charge:

• Firstly, the drugs are in pill form. The pills could be anything (including tic tacs!), but it is also possible that the drugs could be “Schedule 1” drugs such as MDMA, which is considered to be “more serious” type of drugs than other types of drugs such as cannabis.

 

• Secondly, the drugs comprise around 20 pills. If, Anon and/or son are charged with possession under section 9 of the Drugs Misuse Act and if, for example, the pills are MDMA, the pure weight of the drugs must be 2 grams or less for the matter to be dealt with in Queensland’s lower court, the Magistrates Court (unless the prosecution consents otherwise) [5].

 

• 20 pills may possibly bring the pure weight of the drugs over this scheduled amount which may require the matter to be brought up, or “committed” to a higher court. If it is over 2 grams pure MDMA and the offence charged is drug possession under section 9 of the Drugs Misuse Act, this higher court will be the Supreme Court[6], Queensland’s highest Court (unless the Court can be persuaded that Anon and/or son was “a drug dependent person” [7]). Depending on the circumstances, this possession offence could attract penalties of up to 25 years imprisonment[8]. If the matter is dealt with in the Supreme Court, the matter will also take a far lengthier time to resolve and the maximum penalties that the Supreme Court may impose for the offending will increase.

 

• Given the quantity of drugs, it is possible (though perhaps not likely), that the parent and/or son could be charged with drug possession “for a commercial purpose”. This means the prosecution could try to allege that the amount of drugs involved implies that the parent and/or son intended to make a profit from the drugs[9].

[5] Drugs Misuse Act 1986 (Qld), s 9, s 13(1), s 14(2); Drugs Misuse Regulation 1987 (Qld) Schedule 1, Schedule 3.

[6] Drugs Misuse Act 1986 (Qld), s 9(1)(a), s 9(1)(b)(ii); Drugs Misuse Regulation 1987 (Qld) Schedule 1, Schedule 3; District Court of Queensland Act 1967 (Qld), s 61.

[7] Drugs Misuse Act 1986 (Qld) s 9(1)(b)(i); District Court of Queensland Act 1967 (Qld), s 61.

[8] Drugs Misuse Act 1986 (Qld), s 9(1)(a), s 9(1)(b)(ii); Drugs Misuse Regulation 1987 (Qld) Schedule 1, Schedule 3; District Court of Queensland Act 1967 (Qld), s 61.

[9]Drugs Misuse Act 1986 (Qld), s 14(2).

 

All of the above aggravated features, if proven, would result in harsher penalties on sentence for the parent and/or son, along with a possibility that the offences would have to be brought to Queensland’s highest Court, the Supreme Court, to be dealt with.

If convicted and depending on their personal circumstances, it is possible that the Anon parent and/or son could be subject to sentences of imprisonment involving actual time in custody. In addition to this, a conviction for any offence could also result in the following problems for the parent and son:

• Loss of authorities such as blue and/or white cards;
• Possible loss of schooling;
• Possible loss of employment;
• Restrictions on overseas travel as a result of failed applications for travel visas;
• Deportation or other migration issues should the parent or son not be Australian citizens.

It is for this reason that it would be crucial for Anon parent and son to get thorough legal advice from a solicitor practicing in criminal law prior to making any decisions to contact the police.

What is The Actual Answer to the Question?

My actual answer to the question posed by Anon parent is short, to the point and detailed below:

Answer:

Depending on what’s in the bag, you and/or your son may have already, perhaps unwittingly, committed a criminal offence. Contacting the police for any reason related to this may lead to an investigation which could result in you and/or your son being charged with criminal offences. Depending on your circumstances, conviction for these criminal offences could involve actual jail time, along with a wide range of other negative consequences for you and/or your son. If you or any reader should find yourself in this scenario, before doing anything else you should contact a criminal lawyer immediately for further advice.

Conclusion

As the above demonstrates, it is extremely important to obtain legal advice from a lawyer who has expertise in criminal law should you ever be in a position similar to the parent in this article.

It goes without saying that this article should not be taken to be specific legal advice on your particular legal issue. Should you be facing a legal issue, it is very important to obtain your own specialised legal advice in lieu of relying upon the advice contained within this or any other article.

Fuller & White Solicitors are available to provide high-quality legal assistance on drug matters and on all areas of criminal law. Contact us today on (07) 3401 9788.

Written by Brittany White, Principal, Fuller & White Solicitors
22 February 2021