It Wasn’t Mine: When Can You Be Charged for Drugs You Didn’t Own?

Imagine you're staying with friends during Schoolies and police find drugs in the accommodation, a bag or somewhere several people have access to. Or you're a parent whose child is sharing accommodation with friends and you find out police have discovered drugs there. 

In that situation, one might assume that if the drugs do not belong to a person, they cannot be held responsible for them. That may seem like the obvious answer, but legally, it is not quite that simple. The question is not simply who the drugs belong to. It can also come down to who knew they were there and who had control over them. 

So, can someone be charged with possessing drugs that aren't theirs? The answer depends on the circumstances.   What Does “Possession” Mean? 

Section 9 of the Drugs Misuse Act 1986 provides for that unlawful possession of a dangerous drug is a crime with a maximum penalty of between 15 and 25 years’ imprisonment depending on the type and quantity of the dangerous drug.  To satisfy the element of possession, the Prosecution must prove, directly or by inference, that the accused knowingly possessed the dangerous drug.

Possession does not necessarily mean having the drug physically in your hand or in your pocket.  Whether someone can be considered to possess a drug can depend on what they knew about it and whether they had control over it. This means that finding drugs in a shared room, bag or other area does not automatically make everyone present responsible.   What If the Drugs Belong to Someone Else? 

This issue was considered in R v Straker [1997] QCA 113. Police found cannabis and drug paraphernalia near Straker while he was asleep in a shared lounge room at a boarding house. He was convicted in the Magistrates Court, but the Queensland Court of Appeal set aside the conviction and ordered a new trial. 

The Court found that simply being physically present in the shared lounge room was not enough to establish that Straker knew the cannabis was there or that he had the necessary control over the room.

The case illustrates an important distinction: being present where drugs are found does not automatically mean you are in possession of them, but the surrounding circumstances can still matter. Where the drugs were found, what a person knew and whether they had control over them may all be relevant. 

The Catch – Permitting Use of Place

Section 11 of the Drugs Misuse Act provides that it is an offence for a person who is an occupier, or is concerned in the management or control of a place, to permit it to be used in the commission of a drug offence, including possession.

Occupier has a broad meaning as per the common law. Thow v Campbell [1997] 2 Qd R 324 establishes that a person must, at least, be making use of a place with sufficient control or management as to facilitate its use. Temporary accommodation like a hotel is within the meaning of this definition. A person can still be found to be an occupier for the purposes of section 11 even if they have no physical control of the drug – the prosecution needs to prove only some personal involvement in the control or management of a place.

Of course, questions of ownership and what permitting use turn on the facts of each matter. They are highly complex.   What Happens If Police Find Drugs? 

If police find drugs, they may investigate who possessed them, what they knew about the drugs and whether they were intended for personal use. The type and quantity of the drug can also affect how the matter is dealt with. 

For eligible minor drug possession offences, Queensland has a Police Drug Diversion Program as an alternative to prosecution. Depending on the person's circumstances and previous diversion history, this can involve a Drug Diversion Warning or a Drug Diversion Assessment Program. If a person accepts and completes the applicable diversion, they will not be charged with the minor drug offence, will not have to attend court for that offence and will not have a criminal record for it. 

What Should You Remember? 

Being in shared accommodation where drugs are found does not automatically make everyone responsible for them. But whether someone can be charged with possession will depend on the evidence and the circumstances, including what they knew and whether they had control over the drugs. 

If police become involved, getting legal advice can help you understand what the allegation involves and what options may be available. 

Want to Know More About the Rules? 

• Drugs Misuse Act 1986 – Queensland's main legislation dealing with dangerous drugs and drug offences. 

• Queensland Police – Police Drug Diversion Program – Information about eligibility and the diversion process. 

• Queensland Government – Drugs and the law – General information about Queensland drug laws. 

Have a question about Schoolies and the law?

Submit your question through our Schoolies Week Legal Enquiry Form and our Crime & Misconduct team will address it as part of our Schoolies legal awareness series. Submit your question here.