“They found drugs in someone else’s house” – how police prove knowledge and control in NSW drug possession cases
You were staying at a friend’s place. You share a house with three other people. You were a passenger in a car someone else was driving. Police arrived, searched the premises or the vehicle, found drugs – and now you have been charged with possession. The question you are asking is a reasonable one: how can they charge me when it was not mine and I did not know it was there?
The answer lies in what “possession” legally means in NSW drug law. Possession is not ownership. It is a legal concept that requires knowledge of the item and a sufficient degree of control over it. In cases involving shared spaces – share houses, vehicles, common areas, shared bedrooms – these elements can be disputed, and whether they can be established against a particular person on the available evidence is the real question. Understanding how police and prosecutors approach this, and what you can do to challenge it, is what this article is about.
The legal elements of possession in NSW
Under the Drug Misuse and Trafficking Act 1985 (NSW), possession of a prohibited drug requires proof of three distinct elements: that the accused had knowledge that the substance was present, that the accused knew or believed it might be a prohibited drug (or at least a substance that could be such), and that the accused had some degree of physical control over the substance – the ability to deal with it as their own to the exclusion of others.
This three-part test derives from High Court authority and is confirmed in the Judicial Commission of NSW materials on drug offences. Critically, control does not require the substance to be in the accused’s immediate physical hands. It can be constructive – meaning the accused has the ability to access and exercise dominion over the substance even if they are not physically touching it. And it can be shared – meaning two or more people can simultaneously possess the same substance, each having knowledge and a degree of control.
How police build a knowledge case in shared premises
Knowledge is the element most frequently contested in shared-premises drug cases, and police use a consistent range of evidence to establish it. The most common evidence includes: proximity of the drugs to the accused’s personal belongings – if the drugs are found in the same room as the accused’s clothing, documents, or personal items, proximity is argued; physical access – who had a key, who regularly stayed at the premises, whose bedroom the drugs were found in; fingerprints or DNA on the packaging; messages on the accused’s phone discussing the drug or referencing the premises where it was stored; admissions made to police at the scene (including partial admissions like “I knew it was there but it wasn’t mine”); and the accused’s behaviour at the time of the search, including flight, statements, or attempts to direct police away from certain areas.
Courts have consistently held that none of these factors is individually conclusive. Proximity to personal belongings establishes that the accused was present in the room, not that they knew about the drugs. Physical access to premises establishes the ability to access the room, not knowledge of what was in it. The question is whether the combination of circumstances, taken together, establishes knowledge beyond reasonable doubt.
The danger of speaking to police at the scene
In shared-premises drug cases, one of the most consistently damaging categories of evidence is what the accused said to police at the scene – before any legal advice was obtained, in a state of shock, anxiety, or concern for others at the premises. Statements that seem helpful at the time frequently create serious problems in court. Consider the following examples of statements people commonly make and their evidentiary consequences.
“I didn’t know it was drugs” – this statement concedes that the accused knew the substance was present and was uncertain about its nature. This is actually an admission of knowledge of the substance’s presence, even though it is intended to deny knowledge that it was drugs. “Those are [name]’s drugs, not mine” – this statement places the accused in knowledge of the drugs’ existence and potentially their character. “I knew they were there but I never touched them” – this is an explicit admission of knowledge and potentially of joint possession through shared dominion over the premises. The right to silence exists from the moment police make contact. Exercising it is not suspicious, cannot be used as evidence of guilt, and protects the accused from inadvertently providing the prosecution’s case.
Joint possession – when multiple people can be charged for the same drugs
NSW law recognises joint possession: two or more people can simultaneously possess the same prohibited drug where each person has knowledge of it and a sufficient degree of shared control over it. Joint possession is most commonly charged where drugs are found in a common area – a living room, a kitchen, a shared vehicle – to which multiple people had equal access and where there is evidence that multiple people were aware of the drugs’ presence.
Police will assess all occupants of premises where drugs are found. The decision about who to charge, and on what basis, is made based on the totality of the evidence available. Where some occupants have digital evidence on their phones connecting them to the drugs and others do not, charging decisions will typically reflect that distinction. Where the evidence of shared knowledge is roughly equal across all occupants, multiple charges may follow.
Challenging the search itself
Before addressing the question of knowledge and control, it is worth examining whether the search that produced the drugs was lawfully conducted. Police in NSW have powers to search premises with a warrant under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and in specific circumstances without a warrant. The warrant, if one was used, must be valid on its face and must be executed in accordance with its terms. A warrant to search for firearms does not authorise a search for drugs unless both are specified. A warrant limited to a specific address does not authorise search of a vehicle parked on the street outside.
Where police entered without a warrant, they must be able to point to a specific legal authority for the warrantless entry and search. If no such authority exists, or if the search exceeded its scope, evidence found as a result may be challengeable under s 138 of the Evidence Act 1995 (NSW) on the ground that admitting it would be contrary to the public interest given the impropriety of how it was obtained. Whether a s 138 challenge will succeed requires assessment of the seriousness of the impropriety, the deliberateness of the breach, and whether the evidence would have been obtained in any event.
What happens at a contested hearing on knowledge
Where possession is contested on the basis of knowledge, the matter proceeds to a hearing at which the prosecution must establish each element beyond reasonable doubt. The defence will challenge: the sufficiency of the evidence of knowledge, the reliability of any admissions attributed to the accused, the propriety of the search, and the weight to be given to proximity and circumstantial evidence. The accused has the option to give evidence (which then exposes them to cross-examination) or to put the prosecution to proof without giving evidence themselves.
The decision about whether to give evidence in a contested possession hearing is one of the most important strategic choices in the case. Giving evidence allows the accused to provide an explanation for their presence at the premises and their lack of knowledge – but it also opens up cross-examination on anything said to police, prior criminal history, and any inconsistencies between the evidence given at hearing and earlier accounts.
Contact Us
At National Criminal Lawyers, we examine every drug possession case for both the legal elements of possession and the propriety of the search that produced the evidence. Knowledge and control are genuinely contested legal questions in shared-premises cases, and the difference between a conviction and an acquittal often turns on exactly this kind of careful factual and legal analysis.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
