“I’m a cop! No I’m a Cop” type situation arose when police officers fought each other in an undercover operation gone wrong sparking an internal investigation.

It is reported that on 9 November 2018, 2 special operations officers conducted an undercover drug operation where they went undercover as drug suppliers at a neighbourhood well known for drug activities in Detroit, Michigan, USA. For the purposes of this blog we will refer to them as ‘undercover sellers’.

While waiting in the neighbourhood for buyers, well disguised undercover police officers who were also conducting an undercover drug operation in the same neighbourhood approached with the pretence to buy. For the purposes of this blog we will refer to them as ‘undercover buyers’.

Unaware that they were all police officers in the same neighbourhood for the same purpose to clean up the drug problem and make arrests, the undercover buyers demanded the undercover sellers move to the ground.

It is reported that both sides of undercover officers who were committed to fighting the war on drugs commenced fighting each other. To the point that guns were taken out and punches thrown.

From one perspective, each group of undercover officers were that good at their jobs, and so caught up in their underworld characters, that they were unable to realise that they were each involved in an undercover drug operation as police officers.

2 of the police officers received a black eye with minor injuries.

Each of the police officers involved in this are now under investigation in an attempt to find the cause of the confusion.

The incident occurred on Detroit’s east side where it is reported to have a high drug activity for many years.

The City’s police chief, James Craig is reported saying, “This is probably one of the most embarrassing things I’ve seen in this department since I’ve been appointed police chief… In fact, I’d have to tell you it is probably one of the most disappointing things I’ve experienced in my entire 40-year career.”.

Possessing Drugs in NSW

It is a crime to possess prohibited drugs in NSW carrying a maximum penalty of up to 2-years imprisonment and/or a fine of up to $2,200 under section 10 Drug Misuse and Trafficking Act 1985 (NSW). The courts rarely impose the maximum and have discretion to impose any of the other types of penalties, such as section 10(1)(a) dismissal or Conditional Release Order without conviction penalties which carry no criminal record.

On-The-Spot Fines for Drug Possession Offences in NSW

Section 333 Criminal Procedure Act 1986 (NSW) gives police the discretion to issue penalty notices to people who commit a ‘penalty notice offence’.

Paying a penalty notice will not result in a criminal conviction against your name- you will also not be required to attend court in front of a Magistrate or Judge to face the charge unless you choose to not pay the fine and court-elect to dispute it.

You may choose not to pay the fine and contest a penalty notice offence by court electing. In which case, you will be given a court date where you will be required to appear before a Local Court Magistrate where you may either plead guilty or not guilty. However, if you plead guilty or after disputing it, get found guilty, the Court can impose a penalty that carries a criminal conviction unless you get a section 10 dismissal or conditional release order without conviction.

Schedule 4 Criminal Procedure Regulation 2017 (NSW) prescribes all the penalty notice offences, including drug possession.

As of the end of January 2019, a police officer can now issue an on-the spot fine (penalty notice) of $400 if:

  • You are caught possessing a prohibited drug; and
  • If the drug is MDMA/Ecstasy in capsule form, weighing not more than 0.25g; or
  • If the drug is MDMA/Ecstasy in any other form, weighing less than 0.75g; or
  • If any other prohibited drug, weighing not more than the ‘small quantity’.

As police have the discretion to issue on-the-spot fines, they do not have to.

Cannabis leaf is not considered a penalty notice offence due to the cannabis cautioning scheme.

Cannabis Cautioning Scheme

Where the drug is cannabis, the police officer has the discretion (option) to giving you a warning, instead of requiring you to face a Magistrate for a drug possession charge if:

  • You were found to have possession of no more than 15g of cannabis; and
  • You had the drug for personal use; and
  • You admit having it in your possession; and
  • You are not also involved in another criminal offence at the same time; and
  • You have no prior record for offences involving drugs, violence or sexual assault; and
  • You have never been cautioned for drug possession on more than 2 prior occasions.

This is known as the cannabis cautioning scheme.

What the Prosecution Must Prove in Drug Possession Charges

You can only be guilty of drug possession if the court is satisfied by the prosecution beyond reasonable doubt that:

  1. You had physical custody or control of the substance in the sense that you had the right to exclude all others who is not acting in joint possession; and
  2. You had knowledge of its existence, or you were at least aware of the likelihood of its existence or the nature of its existence (from where it was found); and
  3. The substance found is a prescribed prohibited drug or plant.

What are the Defences for Drug Possession Charges?

You will be not guilty to drug possession if any one of the following defences to drug possession charges apply to you:

  • The drug was found by police after an illegality by police officer. This can include an illegal search or illegal arrest which led to the discovery of the drug.
  • You didn’t know or you weren’t aware of the likelihood of its existence or the nature of its existence from where it was found.
  • If the drug was found in a common area frequented by others, then you may run a defence of the reasonable possibility that someone other than you had the custody and control of the drugs found.
  • You had it in your possession due to duress or necessity.
  • The drug certificate discloses that the substance is not in fact a prohibited drug or plant. A prohibited drug or plant is outlined in Schedule 1 to the Act.

Can Possessing Drugs Turn into a Charge of Supplying Drugs?

Short answer is yes. Where you have possession of a prohibited drug or plant weighing at least the ‘traffickable quantity’, the law presumes you had possession of it for the purpose of supply. In which case, you can be charged with ‘deemed supply’. The penalties for deemed supply depend on the weight of the drug.

A common defence to a deemed supply charge is the argument that you had it in your possession for a purpose other than to supply, such as personal use.

Published on 04/02/2019

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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