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Search and seizure - Your Rights Regarding Possession Offences

in Criminal Law by Henry Pill on

Many Australian laws create offences for “possession” of various items. These include laws which prohibit the possession of prohibited or restricted drugs or related products, weapons, stolen goods and so on.

If you have been charged with a possession offence, are a number of issues you may be able to raise to challenge this type of charge.

Searches of Property

Offences involving “possession” may arise as a result of items being located at a person’s property.

Police may be permitted to lawfully enter a person’s property:

  • With the permission of the owner or occupier;
  • With a search warrant (see below)
  • Because they suspect or believe that an offence is occurring on the property;
  • To arrest a person who they believe has committed an offence;
  • Because there is a nuisance or breach of the peace occurring on the property.
  • To preserve evidence that they believe might otherwise be destroyed, or to protect the safety of another person.

Once police lawfully enter a property, they have the right to search that property and any material found during that search may be used as evidence.

However, if police have entered a property unlawfully, any search which follows might be unlawful, which may affect the strength of any case arising from the search.

Possession and Control: Items found in cars or houses

If prohibited items are found during a search of your house or car, police may charge you because you were the occupier of the house, or the driver of the car.

If prohibited items are found on your property (or in your car) there may be a defence to the charge of possession if:

  • You have been wrongly identified as the owner or occupier of a property, or;
  • You have been wrongly identified as the driver or owner of a car, or;
  • You did not know that the item was on your property/in your car

Laws on what constitutes possession vary depending on the applicable state or territory laws in force, and on what type of items involved.

If you have been charged with an offence and believe that you have been searched unlawfully, you should seek legal representation from a lawyer in your state.

Do the police have a warrant?

Often, police conducting a search will require a search warrant in order to do so. A search warrant has to be signed by a third party (usually a Justice Of The Peace) and gives police the power to enter a property.

Once on your property, police are permitted to seize material they find which may be used as evidence of a crime or offence.

For more information on search warrants, please click here.

Can the police search you or seize property without a warrant?

Where police do not have a warrant, they may still conduct a search where they have a “reasonable suspicion” or “reasonable belief” that an offence has been committed.

However, this power cannot be used at any time, and is limited to occasions where a police officer believes that an offence about to be committed is currently being committed or has been committed recently. 

There may be grounds to challenge the lawfulness of search and seizure which is carried out. 

Instances where this may be the case include:

  • Where police have searched you without having a reasonable suspicion that you have committed an offence.
  • Where a significant amount of time has lapsed between the alleged offending and the search.
  • Where police have acted unlawfully in obtaining information.
  • Where police have otherwise exceeded their powers.

If you have been charged with an offence and believe that an unlawful search may have been involved, you should seek legal advice from Slater and Gordon prior to attending court.

Resisting a search

Where police do not have power to conduct a search, that search is unlawful.

As such, individuals can lawfully take reasonable steps to resist a search.

Occasions where a search may be unlawful include:

  • Where police are relying on a search warrant which is incorrect or not validly made.
  • Where police are conducting a search without a warrant and without reasonable suspicion that an offence has been committed.
  • Where a police Officer exceeds their power in making a search, for example, by using excessive force.

However, if police do have the power to search you, resisting them may constitute an offence, such as obstructing a police officer, or even assault. Individuals should be extremely cautious in resisting a search. If an unlawful search has been conducted, this could be challenged in Court and any evidence obtained as a result of the search may be considered inadmissible.

If you have been charged with resisting a search or any related charge or you believe that the search may not have been lawful, you should seek legal representation from a lawyer in your state.

Conclusion

Possession offences have consequences ranging from good behaviour bonds or fines in the least serious cases to prison sentences for the most serious.

Issues such as those listed above can impact on the validity of a search, a search warrant or some other element of a possession offence.

Defences in this area of law are often technical in nature. If you have been charged with an offence of this kind, you should seek legal advice from a Slater and Gordon criminal lawyer in your state as soon as possible.

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