Drug Possession SA: What Police Must Prove, Penalties and Diversion
Drug possession in South Australia
A possession charge for a drug other than cannabis should usually begin with a police referral to an assessment service, not a court date, and many possession cases turn on whether the drug was the person’s at all. Talon Legal defends drug possession charges in the Magistrates Court and advises on police drug diversion. Book a same-day free 30-minute consultation or call (08) 7094 2021 now.
Drug possession key facts
| Issue | Position in South Australia |
|---|---|
| Governing law | Section 33L of the Controlled Substances Act 1984 (SA), version in force from 1 July 2026. |
| The offence | Possessing, smoking, consuming or self-administering a controlled drug other than cannabis, or possessing equipment for its use or preparation (section 33L(1)). |
| Maximum penalty | $2,000 or 2 years, or both (section 33L(1)). |
| Cannabis | Possessing or using cannabis, cannabis resin or cannabis oil carries a maximum fine of $2,000 (section 33L(2)). |
| What possession means | Knowledge of the drug and an intention to control it to the exclusion of others. Possession includes control over its disposition and joint possession (section 4). |
| Police drug diversion | A person alleged to have committed a simple possession offence must be referred to an assessment service, unless an exclusion applies (sections 34 and 36). |
| Possession or trafficking | Possession of a trafficable quantity, such as 2 grams of methylamphetamine, is presumed to be for sale in the absence of proof to the contrary (section 32(5)). |
| Searches | Police can search a person, or stop and search a vehicle, on reasonable suspicion (section 52(6) and (9)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Charged with drug possession? What the offence is
Section 33L of the Controlled Substances Act 1984 (SA) makes it an offence to possess or use a controlled drug. This guide sets out drug possession SA law: what possession means, what happens when drugs are found in a shared house or car, the penalties, police diversion and search powers. It states the law current to 5 November 2026.
The Drug Offences SA guide explains how the drug charges fit together. Cannabis possession is dealt with differently and is covered in the cannabis possession guide and the simple cannabis possession page. If police allege the drug was for sale, see drug trafficking.
Free Consultation. What is said to police at the time of the search often decides whether possession can be proved. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What does possession mean in law?
- What if drugs are found in a shared house?
- What if drugs are found in a car or shared room?
- What is joint possession?
- Does the prosecution have to prove what the drug is?
- When does possession become trafficking?
- What is the penalty for drug possession?
- Is drug diversion available?
- Can police search for drugs without a warrant?
- How similar cases tend to play out
- How we defend a drug possession charge
- Drug possession case law
- Frequently asked questions
What does possession mean in law?
Possession is a legal concept, not just physical closeness. The Court of Criminal Appeal has described it as notoriously elusive (R v GNN [2000] SASC 447 at [21]).
Knowledge and control. To possess a drug, a person must know it is there and intend to exercise control over it to the exclusion of others. In Police v Measey [2017] SASC 194, Peek J said the critical question is not whether the person was “in a position to exercise control”, but whether they had a conscious mental recognition of the drug’s presence and an intention to control it ([51]). Being in a position to control it is not enough, because everyone sharing a car or a house may be in that position ([50]).
The statutory extension. Section 4 says possession includes control over the drug’s disposition and joint possession. In Measey, Peek J said the effect of this definition on the common law is not substantial ([46], footnote 9).
Knowing is not owning. Knowing where a drug is, or allowing someone else to keep it in your house, does not make it yours in law. In McLeod v Police [2019] SASC 69, Stanley J said mere acquiescence in someone else storing drugs in one’s house is insufficient; there must be an intention to control as well as knowledge ([35]). In GNN, the Court said the jury should have been told that allowing one of the men to hide his heroin in the house was not possession ([25] to [26]).
Knowledge that it is a drug. The prosecution must also prove the person knew, or was reckless as to, the fact that the substance was a controlled substance (section 33P(1)). It does not have to prove that the person knew which drug it was, or how much there was (section 33P(2)).
What if drugs are found in a shared house?
This is the most common possession contest. Living in a house where drugs are found does not, by itself, prove possession (GNN [18]).
The prosecution must exclude the others. Where other people could have brought the drug into the house, the prosecution must exclude the reasonable possibility that one of them possessed it alone. In GNN, the jury had to be told that knowledge of the heroin was not enough, that they must exclude exclusive possession by one of the men, and that physical control and an intention to control had to be proved ([20], [24] to [26]). The conviction was set aside and a retrial ordered ([39]).
Positive acts change the picture. In McLeod, the appellant tried to hide a tub of deal bags as police entered. That was positive evidence of control, and it distinguished GNN and cases like it, where there is no evidence of anyone in the house doing anything with the drugs ([37] to [42]).
Control of the premises can be enough, with knowledge. In Bukvic v Police [2013] SASC 79, the appellant lived at and controlled the premises and knew the equipment was there. He had immediate physical control of it, to the exclusion of others not acting with him ([44]).
GNN was decided under the Act as it stood in 2000. Later Supreme Court decisions apply it to the current definition (McLeod [36]; Measey [47]).
The evidence that usually decides a shared house case is practical: whose room the drug was in, whose belongings were with it, fingerprints or DNA, phone messages, and anything the person said when police arrived.
What if drugs are found in a car or shared room?
Being in the car is not enough. In Measey, the appellant was a passenger, not the owner or driver. Two other adults were present and the car was used by quite a few people. A finding that he knew of the cannabis and was in a position to control it fell well short of possession, and he was acquitted ([48] to [55]).
Closeness to the drug can still support an inference of possession when the circumstances are simple. In R v Hughes [2006] SASC 305, the drug was in a motel room let to someone else, next to the bed on which the appellant was lying, with dealing items in his car ([3], [46]). The trial judge directed the jury that mere presence in the room could not found joint possession, and that they must acquit if it was a reasonable possibility that one of two women possessed the drug to the exclusion of others ([45]). The Court of Criminal Appeal found those directions adequate, and the conviction stood ([45] to [49]).
What is joint possession?
Two or more people can possess a drug together (section 4). In R v Wood [2017] SASCFC 100, about an ounce of methylamphetamine was found on a coffee table in a unit the accused shared with two other men ([3] to [4]). The Full Court approved a redirection that joint possession may be found from the circumstances in which an object is found, without specific evidence of an agreement ([13]). Access alone is not enough, and neither is mere acquiescence ([14], [16]). Permission to appeal was refused ([23]).
Joint possession is often alleged against everyone present when police find drugs in a shared space. Each person’s knowledge and intention to control must still be proved separately.
Does the prosecution have to prove what the drug is?
Yes. Most cases rely on laboratory analysis, which also gives the weight and purity. Those figures can decide whether the charge is possession or trafficking.
Analysis is not the only route. Whether a substance is a particular drug is a question of fact. In McLeod, the Supreme Court accepted that cannabis could be identified from an experienced officer’s unchallenged evidence about its appearance and smell ([53] to [56]).
The prosecution does not have to prove the person knew which drug it was. Knowledge or recklessness that it was a controlled substance is enough (section 33P(2); Kingston (a pseudonym) v The Queen [2022] SASCA 90 at [46]).
When does possession become trafficking?
Quantity. If the prosecution proves possession of a trafficable quantity, section 32(5) presumes the person intended to sell it, in the absence of proof to the contrary. The charge is then trafficking, with a maximum of $50,000 or 10 years for a person who is not a serious drug offender (section 32(3)).
| Drug | Trafficable quantity |
|---|---|
| Methylamphetamine (ice) and amphetamine | 2 grams |
| MDMA (ecstasy) | 2 grams |
| Cocaine | 2 grams |
| Heroin | 2 grams |
| Ketamine | 6 grams |
| GHB | 50 grams |
These quantities come from Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), version in force from 27 June 2024.
Circumstances. Below that quantity, an intention to sell can still be inferred from the circumstances. In McLeod, possession for sale was inferred from 11 deal bags without the presumption ([45], [47]). The drug trafficking guide explains the presumption and how it is rebutted.
What is the penalty for drug possession?
The maximum penalty for possessing or using a controlled drug other than cannabis is $2,000 or imprisonment for 2 years, or both (section 33L(1)). The same maximum applies to possessing equipment for using or preparing the drug, such as a pipe.
For cannabis, cannabis resin and cannabis oil, the maximum is a $2,000 fine (section 33L(2)). The cannabis pages cover possession of cannabis oil or resin and prescribed cannabis equipment.
For sentencing, all controlled drugs other than cannabis are treated as equally very harmful (section 44(2)). A court cannot treat possession of heroin as worse than possession of methylamphetamine because of the drug’s relative harm.
Imprisonment is available. In Bui v Police [2012] SASC 72, the possession offences were in the lower range, but a 14-day prison term was open given an earlier conviction for possession for sale and later drug convictions ([20], [30] to [33]).
Where a simple possession offence should have been referred to an assessment service and was not, the prosecution cannot proceed (section 40(1)). That requirement should be checked in every case.
Is drug diversion available?
For most possession charges involving drugs other than cannabis, yes. A police officer must refer a person alleged to have committed a simple possession offence to a nominated assessment service, and the referral stays any proceedings (section 36). A simple possession offence is an offence against section 33L(1), other than one relating to a prescribed controlled drug (section 4).
The diversion scheme does not apply to (section 34(1)):
- a child;
- a person also charged with a serious drug offence arising out of the same circumstances; or
- a person referred two or more times in the four years before the alleged offence.
Cannabis possession falls under section 33L(2), so it is not a simple possession offence and is not referred. The police drug diversion guide explains the assessment, the undertaking and what happens if the referral ends.
Can police search for drugs without a warrant?
Yes, on reasonable suspicion. The Act gives these powers:
| Power | When it can be used | Section |
|---|---|---|
| Search a person | The person is reasonably suspected of having a controlled substance or equipment in breach of the Act | Section 52(6) |
| Stop, detain and search a vehicle, vessel or aircraft | An officer reasonably suspects evidence of an offence against the Act is in it | Section 52(9) |
| Drug detection dogs and electronic systems | May be used in exercising search powers | Section 52(11) |
What makes a suspicion reasonable. A suspicion is less than a belief, but it must be objectively reasonable on what the officer knew, and it need not turn out to be right (R v Rogers [2011] SASC 40 at [18] to [21]). It can rest on what the officer saw and on information from others, whose reliability may need assessing. Gang links or a reported drug history are relevant but not enough on their own ([22], [25] to [26]). In Rogers, the driver’s extreme nervousness, sweating and apparent drug affectation were enough ([27]).
In Bain v Police [2011] SASC 228, a police database note that the driver was a dependent drug user, his admission to using “speed” eight hours earlier, and his evident association with the car grounded a reasonable suspicion ([26] to [27], [30]).
If the search was unlawful. Evidence from an unlawful search is not automatically excluded; the court has a discretion. In both cases the Court said the evidence would not have been excluded in any event (Rogers [33] to [35]; Bain [31] to [32]). Both decisions applied section 52(9) in an earlier version, which referred to a “member of the police force” where the current section says “police officer”.
How similar cases tend to play out
Three illustrations of how section 33L and the related provisions apply on ordinary facts. They are not predictions. The result depends on the evidence, the person’s history and the court.
Lower range. A 24-year-old is searched in the city after a drug detection dog indicates, and police find one MDMA capsule. She has never been referred before. This is a simple possession offence, so police must refer her to an assessment service (section 36). If she enters and completes an undertaking, the complaint is withdrawn and she cannot be prosecuted for that offence (sections 38 and 40(4)).
Middle range. A man shares a flat with two friends. Police executing a warrant find a small bag of methylamphetamine on the kitchen bench and charge all three. Knowledge alone is not possession, and each person’s link to the drug must be proved (GNN; Measey). He has been referred twice in the past four years, so diversion is not available to him (section 34(1)(c)), and his case turns on the possession issue.
Upper range. A man is found with 4 grams of methylamphetamine in several bags, with scales and $1,500 in cash. Four grams is more than the trafficable quantity, so section 32(5) presumes the drug was for sale, and the charge is trafficking. Whether the case can be resolved as possession depends on evidence of his own use and his finances, and on the weaknesses in the prosecution case.
How we defend a drug possession charge
Most possession cases are decided on three questions: was diversion offered, was the search lawful, and can possession be proved. We start with all three.
| Stage | What happens | What we do |
|---|---|---|
| Search and arrest | Police search under section 52 and may seek an interview. | Advise before any interview, and test whether the search was lawful. |
| Referral | A simple possession offence must be referred to an assessment service. | Check that the referral was made, or that an exclusion in section 34 really applies. |
| Charge | The prosecution can proceed only after a referral that has been terminated (section 40(1)). | Hold the prosecution to that requirement and to proof of possession. |
| Evidence | Analysis, photographs, statements and any admissions. | Test who had knowledge and control, and whether the drug, weight and purity are proved. |
| Outcome | A hearing, a withdrawal, or a plea. | Run the possession issue at a hearing, or present the circumstances and any treatment at sentence. |
We cannot promise a particular result, and no lawyer can. We can make sure the prosecution proves every part of its case.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Drug possession case law
These are the South Australian decisions this guide relies on. The case notes state what each court decided.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Police v Measey [2017] SASC 194 | Supreme Court | Possession needs knowledge and an intention to control; being in a position to control is not enough | [46], [50] to [51], [55] |
| McLeod v Police [2019] SASC 69 | Supreme Court | Acquiescence is not possession; a positive act of control; identity of the drug | [34] to [35], [37] to [42], [53] to [56] |
| R v GNN [2000] SASC 447 | Court of Criminal Appeal | Occupying the house is not enough; exclusive possession by another must be excluded | [18], [20] to [26], [39] |
| R v Hughes [2006] SASC 305 | Court of Criminal Appeal | Mere presence is not possession; directions approved on simple facts | [45] to [49] |
| R v Wood [2017] SASCFC 100 | Full Court | Joint possession inferred from the circumstances; access and acquiescence not enough | [13] to [16], [23] |
| Bukvic v Police [2013] SASC 79 | Supreme Court | Knowledge alone is not possession; control of premises with knowledge | [42] to [44] |
| Bui v Police [2012] SASC 72 | Supreme Court | Diversion terminated, then prosecution; imprisonment open with a drug record | [5], [30] to [33] |
| R v Rogers [2011] SASC 40 | Supreme Court | What makes a suspicion reasonable for a vehicle search | [18] to [22], [27] |
| Bain v Police [2011] SASC 228 | Supreme Court | Suspicion based on observations and information from other sources | [26] to [30] |
| Kingston (a pseudonym) v The Queen [2022] SASCA 90 | Court of Appeal | Knowledge that a substance is controlled suffices; identity need not be known | [46] |
Case notes
Police v Measey [2017] SASC 194
Peek J said possession requires a conscious mental recognition of the drug’s presence and an intention to exercise control over it to the exclusion of others, and that being in a position to exercise control is not enough, because co-occupants of a car or house may all be in that position ([46], [50] to [51]). His Honour said the statutory definition has no substantial effect on the common law ([46], footnote 9). On an independent review of the evidence, possession by the passenger was not proved beyond reasonable doubt. The appeal was allowed, the finding of guilt quashed, and the complaint dismissed ([48], [54] to [55]).
McLeod v Police [2019] SASC 69
Stanley J said common law possession is the power and intention to exercise control to the exclusion of all others, extended by section 4 to control over disposition and joint possession ([34]), and that mere acquiescence in someone else storing drugs in one’s house is insufficient ([35]). The appellant’s attempt to conceal the tub as police entered was positive evidence of control, which distinguished GNN ([37] to [42]). His Honour said the identity of a drug is a question of fact that can be proved without scientific analysis ([53] to [56]). The appeal was dismissed ([60]).
R v GNN [2000] SASC 447
Heroin was found in a house the appellant occupied, with others present who could have brought it. Doyle CJ, with Prior and Olsson JJ agreeing, held that occupation was not of itself enough to prove possession ([18]), and that the jury had to be told knowledge was not enough, that exclusive possession by one of the others had to be excluded, and that control and an intention to control had to be proved ([20], [24] to [26]). The conviction was set aside and a retrial ordered ([39]).
R v Hughes [2006] SASC 305
The appellant was found lying on a bed next to a container of methylamphetamine in a motel room let to someone else, with dealing items in his car ([3], [46]). Sulan J, with Layton and David JJ agreeing, found that directions that mere presence could not found joint possession, and that the jury must acquit if one of two women may have possessed the drug alone, were adequate. His Honour distinguished GNN as a far more complex case ([45] to [48]). The appeal against conviction was dismissed ([49] to [51]).
R v Wood [2017] SASCFC 100
About an ounce of methylamphetamine was found on a coffee table in a unit the applicant shared with two other men ([3] to [4]). Vanstone J, with Kourakis CJ and Nicholson J agreeing, approved the trial judge’s redirection that joint possession may be found from the circumstances in which an object is found, without specific evidence of an agreement ([13]). Access alone, and mere acquiescence, are not enough ([14], [16]). The directions were clear, and permission to appeal was refused ([22] to [23]).
Bukvic v Police [2013] SASC 79
Sulan J said a person is not in possession merely because they know where a thing is or have acquiesced in another having it ([42]), and set out the statement in R v Frangos that possession ordinarily requires custody or control with a conscious recognition of the thing’s presence ([43]). Because the appellant lived at and controlled the premises and knew the equipment was there, he had immediate physical control of it ([44]). The appeal was dismissed ([50]).
Bui v Police [2012] SASC 72
The judgment records the diversion scheme at work. Police referred the appellant to an assessment service, he did not attend his appointments, the referral was terminated, and police then had the substance analysed and charged him under section 33L(1) ([5]). Doyle CJ found a 14-day prison term for the possession offences open and not manifestly excessive, given his drug record ([20], [30] to [33]). The appeal was allowed only in part, with fines substituted for prison terms on other offences ([26] to [28], [38] to [39]).
R v Rogers [2011] SASC 40
On an application to exclude evidence from a vehicle search, Duggan J said a reasonable suspicion is less than a belief but must be objectively reasonable on the circumstances known to the officer, and need not be well founded ([18] to [21]). It may rest on observations and reported information, while gang links or a drug history alone are insufficient ([22], [25] to [26]). The driver’s nervousness, sweating and apparent drug affectation were sufficient ([27]). The application was refused, and the evidence would not have been excluded in any event ([33] to [36]).
Bain v Police [2011] SASC 228
White J, following Rogers, said some factual basis for the suspicion must be shown and that it may combine the officer’s observations with information from other sources ([28] to [29]). A database note that the driver was a dependent drug user, his admission to using “speed” eight hours earlier and his association with the car grounded a reasonable suspicion ([26] to [27], [30]). The appeal was dismissed ([33]).
Kingston (a pseudonym) v The Queen [2022] SASCA 90
The Court of Appeal said that under section 33P knowledge or recklessness that a substance is a controlled substance suffices, and the accused need not know its particular identity ([46]). The appeals, against convictions for attempted trafficking, were allowed on other grounds ([92]).
Frequently asked questions
What is the penalty for drug possession in SA?
For a controlled drug other than cannabis, the maximum is $2,000 or 2 years’ imprisonment, or both (section 33L(1) of the Controlled Substances Act 1984). For cannabis, cannabis resin or cannabis oil, the maximum is a $2,000 fine (section 33L(2)).
What does possession of a drug mean?
It means knowing the drug is there and intending to control it to the exclusion of others. Being near a drug, or in a position to control it, is not enough. Possession includes control over the drug’s disposition and joint possession (section 4).
Can I be charged if drugs are found in my house but are not mine?
You can be charged, but living in the house is not enough to prove possession. The prosecution must prove knowledge and an intention to control the drug, and must exclude the possibility that someone else had it alone.
Can I be charged if drugs are found in a car I was in?
Yes, but being a passenger or driver is not enough by itself. In one Supreme Court appeal, a passenger who knew of the drug and was in a position to control it was acquitted, because that fell short of possession.
What is joint possession?
Two or more people can possess a drug together (section 4). Joint possession can be inferred from the circumstances, but access to the drug, or simply putting up with someone else having it, is not enough.
Is having a drug pipe an offence?
Yes. Possessing equipment for using or preparing a controlled drug is an offence under section 33L(1), with the same maximum penalty as possessing the drug. Equipment for cannabis is dealt with under section 33L(2).
Do police have to offer drug diversion?
For a simple possession offence, a police officer must refer the person to an assessment service unless an exclusion applies (sections 34 and 36). A prosecution cannot proceed unless the person was referred and the referral was terminated (section 40(1)).
Does drug diversion apply to cannabis?
No. Cannabis possession is an offence under section 33L(2), which is not a simple possession offence, so the referral scheme does not apply to it.
When does possession become trafficking?
When the prosecution proves possession of a trafficable quantity, the drug is presumed to be held for sale in the absence of proof to the contrary (section 32(5)). An intention to sell can also be inferred from deal bags, scales, cash or messages.
Can police search me without a warrant?
Yes, if an officer reasonably suspects you have a controlled substance or equipment in breach of the Act (section 52(6)). A vehicle can be stopped and searched on a reasonable suspicion that evidence of an offence is in it (section 52(9)).
Will I get a criminal record for drug possession?
If the matter is diverted and the undertaking runs its course, the person cannot be prosecuted for that offence (section 40(4)). If it goes to court, the court decides the penalty, and in some cases can discharge the person without recording a conviction.
Do I need a lawyer for a drug possession charge?
Possession cases are often won or lost on diversion, the lawfulness of the search and proof of possession. We can advise on all three before the first court date. Call (08) 7094 2021.
South Australian courts we attend for drug possession charges
We defend drug possession charges in the Adelaide Magistrates Court and the suburban and regional Magistrates Courts listed below.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.