Charged With Drug Possession in NSW? The Law Explained

Drug possession is one of the most frequently charged criminal offences in New South Wales. It can arise from a roadside search, a nightclub pat-down, or a sniffer-dog operation, and it catches out people who would never otherwise come into contact with the criminal justice system. This article explains what the offence involves, the penalties, when police can issue a caution instead of charging you, and the defences available.

The Offence

Possessing a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum penalty of two years’ imprisonment and/or a fine of 20 penalty units (currently $2,200). The offence covers a long list of substances scheduled under the Act, including cannabis, MDMA, cocaine, heroin and methylamphetamine, as well as many prescription medications possessed without a valid prescription.

To prove the offence, the prosecution must establish beyond reasonable doubt that the substance was in fact a prohibited drug, and that the accused had it in their possession—meaning their exclusive custody or control.

What “Possession” Actually Means

This is where many people are caught off guard. Possession does not require that the drugs belonged to you, that you knew exactly what they were, or even that you were the one who put them there. The courts have interpreted possession broadly to mean having the drug in your custody or control, with knowledge that you had something in your possession and that it was, in fact, a prohibited drug.

This means a person can be charged with possession for drugs found in a jacket they borrowed, a car they were driving, or a shared house they live in—provided the prosecution can prove they knew the drugs were there and had some level of control over them. Simply being present where drugs are found, without more, is not enough to prove possession.

Shared Possession and Joint Occupancy

A common scenario involves drugs found in a shared space—a car with multiple occupants, or a house with several residents—where police cannot say with certainty which person the drugs belonged to. In these circumstances, if the prosecution cannot prove exclusive possession by any one person, a defence may be available. This is a frequently contested issue in drug possession matters and one where the specific facts matter enormously.

When Possession Becomes a Supply Charge

The quantity of drugs found matters significantly. Under section 29 of the Act, if a person is found with at least the “trafficable quantity” of a drug, the law deems that they possessed it for the purpose of supply, unless they can prove otherwise. Once the prosecution proves possession of a trafficable quantity, the burden shifts to the accused to prove, on the balance of probabilities, that the drugs were for a purpose other than supply—such as personal use. Supply offences are treated far more seriously than simple possession and carry substantially higher penalties.

Cannabis Cautions

For small amounts of cannabis (between 15 and 30 grams of dried cannabis), NSW Police have discretion to issue a Cannabis Caution rather than laying a charge, under a scheme developed following the 1999 NSW Drug Summit. A caution is not a conviction and does not create a criminal record, though police retain discretion over whether to issue one, and a person’s history of prior cautions is taken into account.

Can You Avoid a Criminal Record?

Yes, even without a caution and even if you plead guilty. As with other minor offences, a court can impose a Section 10 dismissal or Conditional Release Order without conviction, meaning the charge is proved but no criminal record results. For a first-time offender found with a small quantity for personal use, this is often a realistic and important goal, particularly where a conviction could affect employment, professional registration, or travel.

Defences to Drug Possession

• No knowledge. If you genuinely did not know the drugs were present—for example, in a bag or vehicle belonging to someone else—this can defeat the charge, as knowledge is an essential element the prosecution must prove.
• No exclusive possession. Where multiple people had equal access and control, and the prosecution cannot prove which person the drugs belonged to, a possession charge may not be sustainable against any one of them.
• Unlawful search. If the drugs were located during a search that did not meet the legal threshold—discussed in our guide to drug dog and strip search powers—the evidence may be excluded under section 138 of the Evidence Act 1995 (NSW).

What to Do If You Are Charged

Even a straightforward-looking drug possession charge is worth having reviewed by a lawyer. Whether the substance can be properly identified, whether the search that led to the charge was lawful, and whether a Section 10 outcome is achievable are all matters that can significantly affect your future—particularly for people whose employment or ability to travel depends on a clean record.

How NS Criminal Lawyers Can Help

Our experienced criminal lawyers can review the circumstances of your search and charge, advise you on the strength of the evidence, and build the strongest possible case for a non-conviction outcome. Contact NS Criminal Lawyers for a confidential discussion about your matter. We are available 24/7.

This article provides general information only and is not legal advice. The law referred to is current in New South Wales as at the date of publication. For advice about your circumstances, please contact a qualified criminal defence lawyer.