After a drug charge in Queensland, step by step

Step 1. The search

Almost every drug charge starts with a search. A person can be searched without a warrant under section 29 of the Police Powers and Responsibilities Act 2000 (Qld), and a vehicle under section 31, where the officer holds a reasonable suspicion that drugs, a weapon, stolen property or evidence will be found. Searching a house normally requires a warrant issued under section 150.

The reasonable suspicion has to be genuine and grounded in something identifiable. Nervousness alone, or being in a particular suburb, is thin. If the stated grounds in the QP9 are weak, an application to exclude the evidence under section 130 of the Evidence Act 1977 (Qld) is worth considering, though it is discretionary.

Write down what happened while it is fresh. What was said, in what order, who searched what, whether you were told the reason, and whether a drug detection dog was involved. Those details are hard to reconstruct six months later and are occasionally decisive.

Step 2. Arrest, watch house or notice to appear

From here the matter takes one of two routes.

• Notice to appear. Under section 382 you are given a document stating the charge and the date, time and court of your first appearance, and you go home. Most possession and utensil charges are dealt with this way. A notice to appear has the same legal effect as a complaint and summons, so it must be answered.
• Arrest. You are taken to a watch house, processed, and either granted watch house bail by police or held to appear before a court as soon as practicable. Supply, production and trafficking charges more often follow this route.

The record of interview happens here, and it is the most consequential decision in the whole process. Your obligation is to give police your correct name and address. Questions about the alleged offence are a different matter, and you are generally not obliged to answer them. Drug prosecutions in particular are frequently built out of the answers, because explaining whose drugs they were and what they were for hands the prosecution the knowledge element it could not otherwise prove.

If you are held and bail is refused, read our bail applications page. A properly prepared first application matters, because a second one usually needs a material change in circumstances.

Step 3. The first mention and the QP9

At your first appearance in the Magistrates Court, the police prosecutor provides the QP9, a one to three page police summary of the allegation, together with your criminal history. It is not evidence. It is the prosecution version, written by the arresting officer.

Nothing is decided at a first mention. What should happen is:

1. You or your solicitor obtain the QP9 and read it before anything else.
2. The matter is adjourned for legal advice, or for full disclosure, or both.
3. Any question about diversion eligibility is raised now, not later.
4. If the certificate of analysis is not yet available, the matter is adjourned until it is.

Do not plead guilty at a first mention because the summary looks accurate. A QP9 regularly overstates weight, misdescribes purity, and characterises messages in a way the full extraction does not support. An early plea attracts a discount under section 13 of the Penalties and Sentences Act 1992 (Qld), and that discount survives an adjournment to read the material.

Step 4. Disclosure and the certificate of analysis

Full disclosure usually contains the statements of the officers involved, body worn camera and any CCTV, the search warrant and the application for it, photographs of what was seized, the certificate of analysis from Forensic and Scientific Services, and in supply and trafficking matters the phone extraction.

The certificate of analysis is the document to look at first. It states what the substance actually was and how much of it there was, and it frequently differs from the field test result in the QP9.

• Field tests are presumptive. They indicate, they do not prove. Substances that are not dangerous drugs at all are regularly seized as if they were.
• Gross weight is not pure weight. For several schedule 1 drugs the schedules operate on the pure quantity. A certificate showing low purity can move a charge below a schedule 3 or schedule 4 threshold and change both the maximum penalty and the court.
• Cannabis weight includes what it includes. Whether stalks, roots or wet material were weighed is worth checking against the 500 gram and 100 plant thresholds.

Phone extractions arrive late and arrive large. Where a supply or trafficking allegation rests on messages, the material takes time to read properly, and that is time well spent.

Step 5. The fork: summary or indictment

At this point the matter either stays in the Magistrates Court or goes up.

• Stays summary. Section 13 of the Drugs Misuse Act allows most charges with a maximum of 15 years to be dealt with summarily, and section 14 allows a possession charge with a higher maximum where no commercial purpose is alleged. The magistrate cannot impose more than 3 years. This is the outcome to aim for wherever it is available.
• Goes on indictment. The matter proceeds through a committal in the Magistrates Court to the District or Supreme Court. Where the parties agree and you are legally represented, a registry committal can be used, which sends the matter up administratively without a hearing and is applied for within 28 days of the committal callover.
• Committal hearing. Where there is a real forensic purpose, witnesses can be cross examined at committal with leave. It is used selectively, not routinely.

After committal for trial, section 590 of the Criminal Code requires an indictment to be presented within 6 months, although the Crown can apply for an extension for good cause. If no indictment is presented within the time allowed, you are entitled to be discharged from the consequences of the committal.

Step 6. Plea, sentence, and the record

By the time a matter reaches sentence, the outcome has usually already been shaped by the work done in the preceding steps: the charge that was negotiated, the quantity that was agreed, the period that was narrowed, and the material assembled in mitigation.

What to have ready before a drug sentence:

• Evidence of rehabilitation. A completed program, counselling engagement, and where relevant hair follicle testing showing abstinence over a period. Started early, not the week before.
• Evidence of the section 12 consequences. The employment contract, the licence, the visa, the professional registration, the university placement. Section 12 of the Penalties and Sentences Act 1992 (Qld) requires the court to weigh the effect on your economic and social wellbeing and your chances of finding work, and it can only weigh what it is shown.
• References that say something. A reference that acknowledges the offence is worth ten that do not.
• Your own account. Written, brief, honest about the offending, specific about what has changed.

If drug dependence sits behind the offending, ask early whether a drug and alcohol treatment order under Part 8A of the Penalties and Sentences Act 1992 (Qld) is available through the Queensland Drug and Alcohol Court. It requires a severe substance use disorder and operates in limited locations.

From there, start with the specific charge you are facing: possession, supply or trafficking.